NANCY K. ROBINSON UDELL, APPELLANT,
v.
GLENN S. UDELL, APPELLEE
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Nancy Udell appealed a dissolution of marriage judgment that awarded her ex-husband Glenn a rental value offset for her exclusive use of the marital home. The court reversed, holding that Glenn waived the rental value offset defense by failing to plead it in his responsive pleading, depriving the trial court of jurisdiction to award it.
The trial court lacked jurisdiction to award a rental value offset because Glenn failed to plead setoff in his Answer, Affirmative Defenses, and Counter-Petition or any other pleading or motion. Under Florida Rule of Civil Procedure 1.140(h), affirmative defenses not raised by motion or responsive pleading are waived.
[1] A trial court lacks jurisdiction to consider and decide an issue that is not raised by motion or responsive pleading.
[2] A setoff, or rental value offset, is an affirmative defense that must be pleaded in a motion or responsive pleading to be considered by the court.
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.140(h), which applies to dissolution of marriage proceedings through Florida Family Law Rule of Procedure 12.140, provides that a party waives defenses not raised by motion or responsive pleading (with a few exceptions not relevant in this case). When a defense is not raised by a motion or pleading, the trial court is without jurisdiction to consider and decide the issue.”
Establishes the core rule that affirmative defenses must be pleaded to vest trial court jurisdiction.
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Join FLexlaw to unlock all legal intelligenceNancy filed for dissolution of marriage and requested exclusive use and possession of the marital home. Glenn filed an Answer and Counter-Petition ass…
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PER CURIAM.
Nancy Udell appeals a final judgment of dissolution of marriage on four grounds related to a rental value offset awarded to Glenn Udell for her exclusive use and possession of the marital home. We reverse.
Nancy Udell filed a petition for dissolution of her marriage to Glenn Udell. She requested that the trial court adopt and ratify the prenuptial agreement entered into by the parties, award her exclusive use and possession of the marital home, and issue a no contact order against Glenn Udell.
Glenn Udell filed an Answer, Affirmative Defenses, and Counter-Petition. He asserted a sole affirmative defense, that “the rights and responsibilities of the parties and the distribution of property is set forth in the parties’ Prenuptial Agreement.” He did not seek a setoff. However, in a Joint Pretrial Statement, Glenn Udell requested “a reasonable rental value and or set-off as determined by the statutory factors set forth F.S. 61.077 for the wife’s exclusive use of the marital home since the date of the separation.”
During opening arguments at the dissolution hearing, Glenn Udell’s counsel asserted that the only issue to be decided regarded the award of a rental value offset to Glenn Udell for Nancy Udell’s exclusive use and possession of the marital home. Nancy Udell’s counsel objected on the ground that a rental value offset had not been pleaded. Glenn Udell’s counsel did not contend that this objection was waived by any failure to object at the time of the Pretrial Statement, nor does the record reflect that the rental value offset issue was tried by consent. In the final judgment of dissolution of marriage, the trial court awarded Glenn Udell a rental value offset.
Florida Rule of Civil Procedure 1.140(h), which applies to dissolution of marriage proceedings through Florida Family Law Rule of Procedure 12.140, provides that a party waives defenses not raised by motion or responsive pleading (with a few exceptions not relevant in this case). When a defense is not raised by a motion or pleading, the trial court is without jurisdiction to consider and decide the issue. See Todaro v. Todaro, 704 So. 2d 138, 139 (Fla. 4th DCA 1997). The defense at issue in this case, setoff, is just such an affirmative defense which must be raised in a motion or a pleading in order to be considered and decided by the trial court. See Jo Jo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003).
As Nancy Udell contends and the record demonstrates, Glenn Udell failed to plead setoff, or rental value offset, in his Answer, Affirmative Defenses, and Counter-Petition, or in any other pleading or motion. As such, the trial court was without jurisdiction to consider and decide the rental value offset issue. Consequently, the trial court erred by awarding a rental value offset to Glenn Udell. Therefore, we reverse and remand this case to the trial court for the deletion of the rental value offset award from the final judgment (as the remainder of the final judgment is unaffected by our decision). We do not reach the other three grounds raised on appeal, because they are mooted by our decision.
Reversed and Remanded.
GUNTHER, POLEN and HAZOURI, JJ., concur.
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Rotta v. Rotta, 34 So. 3d 107 (Fla. 3d DCA 2010)…he trial, See [*108] Dysart v. Hunt, 383 So. 2d 259, 260 (Fla. 3d DCA 1980) (“[A] judgment upon a matter entirely outside of the issues made by the pleadings cannot stand.”) (citing Cortina v. Cortina, 98 So. 2d 334, 337 (Fla.1957)); Udell v. Udell, 950 So. 2d 528 (Fla. 4th DCA 2007); Douglas v. Douglas, 616 So. 2d 574, 575 (Fla. 5th DCA 1993) (It was improper for the trial court to award mortgage payments as part of equitable distribution “in the absence of a claim for such contained in a pleading.”); and (b…
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Yusem v. Butler, 966 So. 2d 405 (Fla. 4th DCA 2007)…because the Appellants never pleaded this particular set-off as an affirmative defense, instead seeking set-offs only for the malpractice recovery and the acquisition of the Wyncreek property by Sammons following the FDIC action. See Udell v. Udell, 950 So. 2d 528, 529 (Fla. 4th DCA 2007)(set-off is an affirmative defense); Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 915 So. 2d 220, 223 (Fla. 4th DCA 2005)(“Affirmative defenses are waived unless they are pleaded.”). Regarding the malpractice settleme…
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Cortese v. Cortese, 72 So. 3d 269 (Fla. 5th DCA 2011)…ome mortgage payments and other house-related expenses that Husband paid during the parties’ period of separation. We believe this award was error for several reasons. First, Husband did not request this credit in his pleadings. See Udell v. Udell, 950 So. 2d 528, 529-30 (Fla. 4th DCA 2007) (holding that it was improper for the trial court award a rental value set-off to the husband in return for the wife’s exclusive use of the marital home during the separation because it was not requested in the husband’s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)
- Jojo's Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503 (Fla. 4th DCA 2003)