CARLOS RIVERO, APPELLANT,
v.
ROSIE RIVERO, APPELLEE
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The court held that a trial court must hold an evidentiary hearing before authorizing temporary relocation of a minor child, and a verified answer relates back to an original unverified answer.
[1] A trial court must hold an evidentiary hearing before authorizing the temporary relocation of a minor child, as required by statute.
[2] The failure to verify a pleading that is statutorily required to be verified does not constitute a jurisdictional defect and may be cured by amendment.
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Join FLexlaw to unlock all legal intelligenceThe former husband appealed a non-final order allowing his former wife to temporarily relocate with their minor child to North Carolina. The trial cou…
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The former husband appeals a non-final order authorizing his former wife to relocate to North Carolina with the parties’ minor child on a temporary basis. We reverse because the trial court failed to hold an evidentiary hearing before allowing the temporary relocation, contrary to the requirements of section 61.13001(6)(b), Florida Statutes. See Mata v. Mata, 75 So.3d 341, 343 (Fla. 3d DCA 2011) (holding that the trial court abused its discretion in granting the mother’s motion for temporary relocation with the minor child where the court’s decision “was limited to a review of the pleadings and argument of counsel” and the court did not receive any evidence or testimony which would have provided a factual basis to support relocation).
Furthermore, contrary to the trial court’s ruling, we conclude that the father’s verified answer to the mother’s petition for relocation related back to his original unverified answer, which was timely filed.1 The failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdictional defect; verification may be supplied by an amendment and relate back to the time the original unverified pleading was filed. See Green v. Burger King Corp., 728 So.2d 369, 370-72 (Fla. 3d DCA 1999); Drury Displays, Inc. v. Bd. of Adjustment, 760 S.W.2d 112, 114 (Mo.1988); In re Shaffer’s Estate, 203 Kan. 264, 454 P.2d 1, 3 (1969); Bd. of Educ. of San Francisco Unified Sch. Dist. v. Mulcahy, 50 Cal.App.2d 418, 123 P.2d 114, 118 (1942); see also Fla. R. Civ. P. 1.190(c).
We therefore “reverse and remand the cause for an evidentiary hearing from which the court can determine the necessary findings required by section 61.13001.” Mata, 75 So.3d at 343.
Reversed and Remanded.
MAY, C.J., TAYLOR and CONNER, JJ., concur.
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Citator
Cited By
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Milton v. Julianna Milton, 113 So. 3d 1040 (Fla. 1st DCA 2013)…court order temporary relocation pending final determination. § 61.13001(6)(b). This Court has previously made clear that these requirements are unambiguous and are “a clear statutory mandate.” Raulerson, 60 So. 3d at 490; see also Rivero v. Rivero, 111 So. 3d 233 (Fla. 4th DCA Apr.10, 2013). Here, there was no such agreement or petition. And, Mrs. Milton does not contest that she and the child relocated to New York. Accordingly, she is subject “to contempt and other proceedings to compel the return of the c…
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Beltway Cap., LLC v. Nigel Lucombe, 211 So. 3d 328 (Fla. 2d DCA 2017)…timely submitted an amended claim”). In this case, the trial court should have allowed the bank an opportunity to amend the complaint. The lack of a verification is not the kind of error that cannot be corrected by amendment. See Rivero v. Rivero, 111 So. 3d 233, 234 (Fla. 4th DCA 2013) (“The failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdic [*331] tional defect; verification may be supplied by an amendment and relate back to the time the original unve…
Authorities Cited
- Schenita Green v. Burger King Corp., 728 So. 2d 369 (Fla. 3d DCA 1999)
- Mata v. Mata, 75 So. 3d 341 (Fla. 3d DCA 2011)