FRED R. RIES, APPELLANT,
v.
LAURIE JO RIES, APPELLEE

Fla. 4th DCA | 2008-06-11
No. 4D07-1489
POLEN and GROSS, JJ., concur.
984 So. 2d 612 Florida District Court of Appeal, Fourth District (2008) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a dissolution of marriage appeal, the court addressed whether a defaulted defendant in a family law case could present evidence on contested issues despite entering default by failing to respond to the petition. The court affirmed the trial court's prohibition on presenting evidence, finding no abuse of discretion where the defendant failed to set aside the default, file required financial disclosures, or respond to discovery.


Holding

The trial court did not abuse its discretion in prohibiting the former husband from presenting evidence on equitable distribution, alimony, and attorney's fees where he failed to set aside the default, file a financial affidavit, or respond to discovery. Although defaulted defendants generally have the right to contest unliquidated damages, trial courts possess discretion to impose sanctions for non-compliance with procedural rules.


Headnotes

[1] A default entered in a dissolution proceeding does not prohibit a party from contesting the amount of unliquidated damages or offering evidence in mitigation thereof.

[2] Alimony and equitable distribution in dissolution proceedings are generally treated as liquidated damages, not subject to the same rights as unliquidated damages after a…

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Key Quotes

“a defaulted defendant has the right to contest the amount of unliquidated damages and may offer evidence in mitigation thereof”

Establishes the general rule protecting defaulted defendants' rights to challenge damages, but this right is subject to trial court discretion to impose sanctions.

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Facts & Procedural History

The former wife filed a verified petition for dissolution seeking shared parental responsibility, child support, alimony, equitable distribution, and …

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Opinion of the Court
MAY, J.

MAY, J.

The effect of a default entered in a dissolution proceeding is questioned in this appeal. The former husband appeals the final judgment of dissolution. He argues the trial court erred in prohibiting him from presenting evidence and arguing his position on issues of alimony, fees, child support, and equitable distribution. We find no error and affirm.

The former wife filed a verified petition for dissolution of marriage, in which she sought shared parental responsibility, designation as the primary residential parent, child support, alimony, equitable distribution, and attorney’s fees. The former wife moved for, and the clerk entered, a default after the former husband failed to file a responsive pleading.

The former wife then filed a temporary relief agreement, which the trial court approved. The trial court then set a trial date, and the former husband appeared through counsel. The court ordered the parties to pre-trial mediation, which resulted in an impasse.

At the final hearing, the former husband appeared with counsel. However, there was no effort to set aside the default, file a financial affidavit, or respond to discovery. As a result, the trial court found that the former husband had either waived or was estopped from presenting evidence on the contested issues of equitable distribution, alimony, and attorney’s fees.

In an amended final judgment of dissolution, the trial court awarded shared parental responsibility, with primary residential responsibility to the former wife. Because the former husband was incarcerated, the trial court reserved jurisdiction on the issues of child support and visitation until he was released. The trial court equitably distributed the property, providing 52.5% to the former wife and 47.5% to the former husband, and the difference in the percentages was awarded to the former wife as lump sum alimony. The trial court denied the former wife’s request for attorney’s fees.

The former husband contends that the default should not have prohibited him from introducing evidence of marital property valuations, attorney’s fees, and child support because those items are akin to unliquidated damages.1 The former wife responds that alimony and equitable distribution are treated as liquidated damages in dissolution proceedings. She also argues that the former husband’s failure to participate in discovery prevents him from making this argument. And lastly, the former husband failed to make a proffer and has therefore failed to preserve the issue.

There is no question that “a defaulted defendant has the right to contest the amount of unliquidated damages and may offer evidence in mitigation thereof.” Talucci v. Matthews, 960 So. 2d 9, 10 (Fla. 4th DCA 2007). In fact, Rule 12.440(a), Florida Family Law Rules of Procedure, and Rule 1.440(c), Florida Rules of Civil Procedure, specifically provide for notice and an opportunity for the defaulted party to be heard on unliquidated damages. See Mourning v. Ballast Nedam Constr., Inc., 964 So. 2d 889, 892 (Fla. 4th DCA 2007). However, it is equally clear that the trial court possesses discretion to sanction a party for non-compliance with the rules. Mercer v. Raine, 443 So. 2d 944 (Fla.1983).

Sanctions for discovery violations in family law cases are governed by Rule 1.380, Florida Rules of Civil Procedure. Fla. Fam. L.R.P. 12.380. We have previously affirmed the imposition of sanctions, e.g., striking pleadings when a party failed to answer interrogatories. See Fearns v. Fearns, 336 So. 2d 1263, 1263-64 (Fla. 4th DCA 1976) (Downey, J., concurring specially). Because the former husband never moved to set aside the default, did not file a financial affidavit, and failed to respond to discovery, the trial court found that he had either waived or was estopped from presenting evidence “regarding equitable distribution, alimony, and attorney’s fees.” We find no abuse of discretion in the trial court’s actions here. Ham v. Dunmire, 891 So. 2d 492, 495 (Fla.2004).

Affirmed.

POLEN and GROSS, JJ., concur. . As the trial court did not award attorney’s fees and reserved jurisdiction on child support and visitation, these aspects of the final judgment of dissolution are non-issues.


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Citator

Cited By

  • Ehman v. Ehman, 156 So. 3d 7 (Fla. 2d DCA 2014)
    …(Fla. 2d DCA 1991)). Thus, the Wife’s entitlement to equitable distribution and alimony were conceded by the Husband, but the amount of alimony and the form of equitable distribution must be determined by the trial court. See id.; cf. Ries v. Ries, 984 So. 2d 612, 614 (Fla. 4th DCA 2008) (finding no abuse of discretion where trial court prohibited former husband from presenting evidence as to alimony, equitable distribution, and attorney’s fees where default had been entered and former husband failed to resp…
  • Mercer v. Mercer, 96 So. 3d 1094 (Fla. 4th DCA 2012)
    …PER CURIAM. Affirmed. See Ries v. Ries, 984 So. 2d 612, 613 (Fla. 4th DCA 2008). As to appellant’s claim that the court adopted the wife’s final judgment without providing him with service of the proposed final judgment, appellant’s pleadings were stricken for failure to provide discovery, and he was sa…
  • Louis v. Nathalie L. Pierre Louis (Fla. 4th DCA 2024)

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