DAVID PRESTON, APPELLANT,
v.
DEANNA PRESTON, APPELLEE
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Once a trial court vacates a decree pro confesso, it should vacate the entire final decree, not just portions of it.
Following a divorce complaint, the husband employed multiple attorneys and objected to temporary awards. After a decree pro confesso was entered again…
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The order under review in this cause is an outgrowth of domestic litigation. The appellee filed a complaint for divorce. The appellant employed several different counsel, attempted a reconciliation, and objected strenuously to certain temporary awards. The chancellor lent his efforts towards reconciliation, without success. No responsive pleadings being filed in accordance with an interlocutory order, he duly entered a decree pro confesso against the husband and, thereafter, proceeded to a final decree of divorce ex parte. Subsequently, the appellant moved to vacate the decree pro con-fesso and the final decree of divorce. The chancellor entered an order vacating the decree pro confesso and vacating those portions of the final decree relating to a division of property, allowances for alimony and support, but refused to disturb that portion of the final decree granting a divorce, adjudicating custody of the minor children of the parties, and awarding attorney’s fees. This order is here for review.
Once the chancellor exercised his discretion to set aside the decree pro confesso,1 he should not piecemeal have vacated portions of the final decree but should have set it aside in its entirety. See: Adelhelm v. Dougherty, 129 Fla. 680, 176 So. 775; 19 Fla.Jur., Judgments and Decrees, § 499; Los Angeles County v. Lewis, 179 Cal. 398, 177 P. 154; Lohmann v. Lohmann, St. Louis, Mo.App.1952, 246 S.W.2d 368.
The order here under review is reversed with directions to vacate the remaining portions of the final decree, permit the appel--*88lant to further plead [if he so desires] within a time certain, and proceed to a final hearing upon due notice upon the issues as made by the pleading.
Reversed and remanded with directions.
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Citator
Cited By
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Preston v. Preston, 216 So. 2d 31 (Fla. 3d DCA 1968)…PEARSON, Judge. This cause has been before us previously (Preston v. Preston, Fla.App.1967, 201 So. 2d 87). The present appeal is by Deanna Preston from a final judgment which, among other things, (1) granted her a divorce from the appellee, David Preston, defendant below; (2) granted her permanent custody of the parties’ three children; (3) ordered the…
Authorities Cited
- Mrs. August F. Adelhelm v. Jeanie W. Dougherty, 129 Fla. 680 (Fla. 1937)
- Gordon v. Vaughan, 193 So. 2d 474 (Fla. 3d DCA 1967)
- Evans v. Hydeman, 168 So. 2d 183 (Fla. 2d DCA 1964)