KIESHA HENDERSON-BULLARD, APPELLANT,
v.
ANDREW TYLER LOCKARD, APPELLEE

Fla. 5th DCA | 2016-11-18
No. 5D16-1679
COHEN, WALLIS and LAMBERT, JJ., concur.
204 So. 3d 568 Florida District Court of Appeal, Fifth District (2016) Caution
Cited by 4 cases

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Holding

The court held that the trial court erred in vacating an order allowing relocation because the father received actual notice, and the second relocation petition was not an improper amendment.


Headnotes

[1] A judgment entered without proper service or notice may be void, but lack of strict compliance with service rules does not render a judgment void when actual notice is re…

[2] A motion to vacate an order must be brought under Florida Rule of Civil Procedure 1.540(b) and establish grounds such as mistake, excusable neglect, or that the judgment…

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Facts & Procedural History

A mother filed a second petition to relocate with the parties' child, which was granted after the father failed to object. The father later sought rel…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Kiesha Henderson-Bullard (“the mother”) appeals from the trial court’s order granting a motion for relief from judgment in favor of Andrew Lockard (“the father”). The parties’ underlying paternity dispute has not been resolved, making the order under review non-final. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), (5). Because the trial court erred in vacating the order allowing the mother to relocate with the parties’ minor child, we reverse.

In 2014, the mother filed a supplemental petition to relocate to Savannah, Georgia, following her marriage to a Savannah resident. The petition was denied after a hearing. In 2015, the mother filed a second petition to relocate, which she labeled as an amended supplemental petition. It was served on the father’s counsel through Florida’s e-filing system at counsel’s primary e-portal email address.

When no objection was filed as required by section 61.13001(7)(d), Florida Statutes (2016), the mother obtained an expedited order allowing relocation.1 Subsequently, the father, claiming he had not been served with the amended petition, filed an emergency motion for relief from judgment. That motion cited no rule as the basis for the relief sought. The father later amended the motion to include a claim that the mother failed to comply with Florida Rule of Civil Procedure 1.190(a) because she did not seek leave of court to amend her initial relocation petition. The trial court granted- the father’s motion based on a finding that the mother did not properly serve the amended petition- on the father’s attorney’s secondary email address and because the mother did not request leave of court to file the amended petition. ■

The trial court erred in granting the father’s motion. Generally,' a judgment entered without service on the parties or other notice violates the parties’ due process rights and is void. See Stevens v. Nationstar Mortg., LLC, 133 So.3d 628, 629 (Fla. 5th DCA 2014) (“Every pleading and paper filed in any court proceeding must be served on each party or their counsel.... This requirement is to satisfy the constitutional requirement of due process.” (citing Fla. R. Jud. Admin. 2.516)); Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006) (“A violation of the due process guarantee of notice and an opportunity to be heard renders a judgment void.”).'

Yet, in this case, the father’s counsel acknowledged receipt of the amended petition-.2 Thus, the father has not established a due process violation that would' require setting aside the order allowing relocation. At the hearing on the amended motion for relief from judgment, the father contended that the service of process was insufficient. The father was *570correct that the mother did not strictly comply with Florida Rule of Judicial Administration 2.516—-she did not send notice to the secondary email address listed on counsel’s pleadings. However, lack of strict compliance with the service requirements set forth in rule 2.516 does not render a judgment void, particularly when a party receives notice of the proceedings. Cf. Arthur v. Arthur, 543 So.2d 349, 352 (Fla. 5th DCA 1989) (noting order not rendered void when actual notice received, party must demonstrate grounds that order was voidable for purposes of rule 1.540 motion).

Thus, the father s motion seeking to vacate the relocation order would need to be brought pursuant to Florida Rule of Civil Procedure 1.540(b)(l)-(3).3 Neither the father’s motion nor his argument at the hearing cited to, or argued, grounds set forth in rule 1.540(b). Nor did the trial court make a finding of excusable neglect. Because the order entered was not void, and the father did not properly plead or establish excusable neglect, the trial court erred in setting aside the order on that basis.

Finally, the trial court also erred in basing its decision to vacate on the mother’s failure to seek leave to amend her petition. Although the underlying paternity action remains pending, the original motion for relocation was the subject of a hearing and was denied. Despite its label as an amended supplemental petition, the body of the pleading under review was a separate, subsequent petition to relocate. Because this was not an amendment to an initial pleading, Florida Rule of Civil Procedure 1.190 is inapplicable.

The orders addressed below and on appeal are temporary; at the inception of this appeal, the underlying paternity action remained pending. Our decision today does not foreclose the trial court from reviewing all of the appropriate factors to determine what is in the child’s best interest at the time of the final judgment.

REVERSED and REMANDED.

COHEN, WALLIS and LAMBERT, JJ., concur.


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Citator

Cited By

  • …y initially served the section 57.105(4) motion, we affirm the trial court's denial of fees on this alternative argument. In rejecting Appellants' substantial compliance argument, we have not overlooked our decision in Henderson-Bullard v. Lockard, 204 So. 3d 568 (Fla. 5th DCA 2016). That case did not hold that strict compliance with rule 2.516 is unnecessary, as Appellants contend. The holding in Lockard was that a lack of strict compliance with the rule does not render a judgment void, an entirely differen…
  • …ey initially served the section 57.105(4) motion, we affirm the trial court’s denial of fees on this alternative argument. In rejecting Appellants’ substantial compliance argument, we have not overlooked our decision in Henderson-Bullard v. Lockard, 204 So. 3d 568 (Fla. 5th DCA 2016). That case did not hold that strict compliance with rule 2.516 is unnecessary, as Appellants contend. The holding in Lockard was that a lack of strict compliance with the rule does not render a judgment void, an entirely differ…
  • Korman v. Shapiro (Fla. 3d DCA 2024)
    …cial Administration 2.516(b)(1)(C). “[L]ack of strict compliance with the service requirements set forth in rule 2.516 does not render a judgment void, particularly when a party receives notice of the proceedings.” Henderson-Bullard v. Lockard, 204 So. 3d 568, 570 (Fla. 5th DCA 2016). Korman was served, by email, with all the relevant pleadings and orders in this case at the email that was on the face of both counsels’ motions to withdraw and the respective orders granting the same. Further, as Sha…

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