GALO ENRIQUE ANDRADE, APPELLANT,
v.
ROSE ELIZABETH ANDRADE, APPELLEE
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The Fourth District Court of Appeal affirmed the trial court's order vacating a default dissolution of marriage judgment and abating proceedings pending a determination of the wife's mental competency. The court held that a mentally incapacitated spouse cannot be divorced without a prior three-year adjudication of incapacity under Florida law.
The court affirmed the vacation of the default judgment and the abatement of proceedings. Mental incapacity satisfies the requirement of excusable neglect under Florida Rule of Civil Procedure 1.540(b), and the trial court properly abated dissolution proceedings pending a determination of the wife's mental competency consistent with Florida law prohibiting dissolution where an incapacitated party has not been adjudged incapacitated for at least three years.
[1] A party seeking relief from a default final judgment under rule 1.540(b), Florida Rules of Civil Procedure, must demonstrate excusable neglect, a meritorious defense, and…
[2] Mental incapacity can satisfy the excusable neglect requirement for setting aside a default judgment.
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Join FLexlaw to unlock all legal intelligence“Section 61.052(1)(b), Florida Statutes, provides that a dissolution of marriage is not allowed where an incapacitated party has not been adjudged incapacitated for at least 3 years preceding.”
Establishes the statutory bar to divorce an incapacitated party without prior three-year adjudication
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Join FLexlaw to unlock all legal intelligenceThe parties had three children. The husband sought sole permanent custody based on the wife's alleged mental incapacity, claiming she had been diagnos…
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[*552] STONE, Chief Judge.
We affirm an order vacating a default and final judgment of dissolution of marriage. We also deny the husband’s companion petition for certiorari relief from the trial court’s order abating further proceedings pending a determination of the wife’s mental competency. .
The parties have three children. Appellant sought sole permanent custody based on Appellee’s alleged mental incapacity. Appellant also filed a motion to remove her from the marital home, alleging that she had been diagnosed with mental illness and was refusing to take prescribed medications. The court awarded Appellant sole custody of the children and possession of the home.
Appellee moved to vacate the final judgment, alleging that she was mentally incompetent at all relevant times and that Appellant knew this. Section 61.052(1)(b), Florida Statutes, provides that a dissolution of marriage is not allowed where an incapacitated party has not been adjudged incapacitated for at least 3 years preceding. A hearing was conducted on the motion, and evidence was admitted concerning the details of Ap-pellee’s conduct, mental illness, and medication history.
In order to obtain relief from a default final judgment pursuant to rule 1.540(b), Florida Rules of Civil Procedure, a party seeking relief must demonstrate excusable neglect, a meritorious defense, and that the party acted with due diligence. E.g. Schwartz v. Business Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994). Here, Appellee’s defense is that she is mentally ill and could not be divorced. Although Appellant claims that no excusable neglect was demonstrated, the “excusable neglect” basis for setting aside the judgment is certainly satisfied by demonstrating mental incapacity. The court found that Appellee was “in a process of deterioration at the time that that final judgment — or at the time that she was served.”
We recognize that section 61.052(1)(b), Florida Statutes, does not establish a procedure applicable in the absence of a formal adjudication of ineompetency. However, support for abatement in this case is found in Goldberg v. Goldberg, 643 So. 2d 656 (Fla. 4th DCA 1994), where the trial court abated dissolution proceedings. We note that formal incompetency proceedings have since been commenced.
AFFIRMED; CERTIORARI DENIED.
WARNER and STEVENSON, JJ., concur.
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Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002)…. Duckworth, 414 So. 2d 562, 563 (Fla. 3d DCA 1982). Under most circumstances, a party seeking relief from a default judgment must demonstrate excusable neglect, a meritorious defense, and that the party acted with due diligence. Andrade v. Andrade, 720 So. 2d 551, 552 (Fla. 4th DCA 1998); Burke v. Reyes, 687 So. 2d 929, 929 (Fla. 3d DCA 1997). We have recognized, however, that the “best interest of the child” standard precludes a determination of child custody based on a parent’s default. See Seibert v. Sei…
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Lacie Shewmaker v. Shewmaker, 283 So. 3d 894 (Fla. 2d DCA 2019)…Duckworth, 414 So. 2d 562, 563 (Fla. 3d DCA 1982). Under most circumstances, a party seeking relief from a default judgment must demonstrate excusable neglect, a meritorious defense, and that the party acted with due diligence. Andrade v. Andrade, 720 So. 2d 551, 552 (Fla. 4th DCA 1998); Burke v. Reyes, 687 So. 2d 929, 929 (Fla. 3d DCA 1997). We have recognized, however, that the "best interest of the child" standard precludes a determination of child custody based on a parent's default. See Seibert v. Se…
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Walker v. Boyce, 734 So. 2d 578 (Fla. 3d DCA 1999)…blished excusable neglect, due diligence upon discovery of [*579] the default and a meritorious defense to this suit, we conclude that the trial court abused its discretion in refusing to set aside the default final judgment. See Andrade v. Andrade, 720 So. 2d 551, 552 (Fla. 4th DCA 1998); Shaker Lakes Apts. Co. v. Dolinger, 714 So. 2d 1040, 1042 (Fla. 1st DCA 1998); Atlantic Asphalt & Equip. Co., Inc. v. Mairena, 578 So. 2d 292, 293 (Fla. 3d DCA 1991); Ponderosa, Inc. v. Stephens, 539 So. 2d 1162, 1163 (Fla.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schwartz v. Bus. Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994)
- Goldberg v. Goldberg, 643 So. 2d 656 (Fla. 4th DCA 1994)