ROBERT HENNIG, AS AN INDIVIDUAL, APPELLANT,
v.
RAYMOND W. HENNIG, APPELLEE
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Robert Hennig appeals the denial of his motion to dismiss in an action seeking to establish his title to real property. The court held that a final divorce decree divesting him of property interest was subject to collateral attack because the real estate was not described in the notice of publication required for constructive service, making the original divorce court's jurisdiction over the property defective.
The court held that failure to appropriately describe the real estate in the notice of publication is jurisdictional and subject to collateral attack. The divorce court lacked jurisdiction to award the husband's interest in the land to the wife because it did not have personal jurisdiction and the proceedings were not in rem or quasi in rem with respect to the property.
“failure to appropriately describe the real estate in the notice is jurisdictional”
Establishes that the defect in the notice of publication goes to the court's subject matter jurisdiction and is therefore subject to collateral attack.
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Join FLexlaw to unlock all legal intelligenceIn prior divorce proceedings between Robert Hennig and Raymond W. Hennig, a final decree awarded Raymond Hennig the husband's interest in property ori…
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Appellant, defendant in the trial court, brings this, his interlocutory appeal to review an order of the chancellor denying his motion to dismiss addressed to a complaint for failure to state a cause of action.
The principal question involved in this cause is whether or not the appellee may collaterally attack a final decree of divorce which awarded to a wife her husband’s interest in and to property originally held by tenancy in the entirety. The appellee contended that before such a final decree of divorce could divest a husband of an interest in said property [where process was secured on the husband by constructive service, pursuant to §§ 48.04, 48.08, Fla.Stat., F.S.A.], the real property involved should be described in the notice of publication. It is conceded in the instant case that in the prior divorce proceedings the real property was described in the divorce complaint, but was not described in the notice by publication. Although it appears from a recitation in the notice that the husband should have received a copy of the complaint, in accordance with Rule 1.3(h) (i), Florida Rules of Civil Procedure, 30 F.S.A., we hold that failure to appropriately describe the real estate in the notice is jurisdictional. See: Torchiana v. Torchiana, Fla.App.1959, 111 So.2d 103; Webb v. Webb, Fla.App.1963, 156 So.2d 698. In the latter case, the following is found :
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“[4] Since the court did not have personal jurisdiction of the defendant and since, after the filing of the complaint, there was nothing done which would, in effect, make it a proceedings xn rem or quasi m rem, the court was without jurisdiction to award the husband’s interest in the land to the wife.”
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The defect in the divorce proceeding, as far as concerns divesting the husband’s interest in the real property, was jurisdictional and subject to collateral attack. See: Malone v. Meres, 1926, 91 Fla. 709, 109 So. 677; 19 Fla.Jur., Judgments & Decrees, § 424.
Therefore, having concluded that the constructive service of process in the original divorce proceedings was insufficient to acquire jurisdiction over the property of the husband, the chancellor committed no error in declining to grant the motion to dismiss directed to the husband’s complaint to establish his title in and to the real estate.
Affirmed.
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Citator
Cited By (11 total)
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Davis v. Rosman Charles Dieujuste, 496 So. 2d 806 (Fla. 1986)…urisdiction to adjudicate the property rights of the parties. See, e.g., Wright v. Wright, 411 So. 2d 1334 (Fla. 4th DCA 1982); Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976); Nethery v. Nethery, 212 So. 2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA), cert. denied, 166 So. 2d 754 (Fla.1964); Webb v. Webb, 156 So. 2d 698 (Fla. 3d DCA 1963). The rule of Cooper that a party to a dissolution proceeding is barred from raising matters in a subsequent proceeding which “could and should h…
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Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)…were not described, as required by law, in the marriage dissolution petition and the notice of publication sent to the husband. Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976); Nethery v. Nethery, 212 So. 2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA 1964). [*201] Secondly, even if the trial court had acquired in personam jurisdiction over the husband by virtue of the letter sent to the trial court by the husband’s Israeli counsel, the above-stated provisions of the final judgment a…
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Whigham v. Whigham, 464 So. 2d 674 (Fla. 5th DCA 1985)….08(4), Florida Statutes, and did not give constitutional procedural due process notice that the husband’s property rights were to be adjudicated in the dissolution action. See Nethery v. Nethery, 212 So. 2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA 1964), cert. denied, 166 So. 2d 754 (Fla.1964); Webb v. Webb, 156 So. 2d 698 (Fla. 3d DCA 1963). Because the service of process was defective as to the husband’s property rights, the trial court’s jurisdiction to adjudicate those right…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Malone v. Meres, 109 So. 677 (Fla. 1926)
- Jahaziah Shaw Webb, III v. Webb, 156 So. 2d 698 (Fla. 3d DCA 1963)
- Torchiana v. Torchiana, 111 So. 2d 103 (Fla. 2d DCA 1959)