WILLIAM CARNES, APPELLANT,
v.
ALICE VIVIAN CARNES, APPELLEE
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A Florida appellate court reversed a divorce judgment's child support award, holding that the trial court lacked personal jurisdiction over the defendant-husband who was an Alabama resident at the time of suit. The court found that the husband's jurisdictional challenge was properly raised despite procedural defects and should have been upheld.
The trial court lacked personal jurisdiction over the defendant and therefore the child support award was erroneous. The final judgment is modified to delete the provisions ordering payment of support money, with the decree reversed to that extent.
[1] A court lacks jurisdiction to award child support against a defendant who is not a resident of the state and over whom personal jurisdiction has not been obtained.
[2] A defendant's timely objection to a court's personal jurisdiction, even if not in strict compliance with procedural rules, preserves the right to appellate review of the…
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Join FLexlaw to unlock all legal intelligence“It appears from the record and briefs that neither jurisdiction in personam nor in rem was obtained, and therefore insofar as the final judgment provided for money judgments against the defendant for alimony and support of child payments, the same as in error and contrary to the decisions of our Courts”
Establishes the fundamental rule that money judgments against a defendant require either personal or property jurisdiction
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Join FLexlaw to unlock all legal intelligencePlaintiff-wife filed for divorce in Florida while defendant-husband was a resident of Alabama. The complaint averred defendant was not a Florida resid…
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Defendant-husband appeals a final judgment granting the plaintiff-wife a divorce and awarding child custody and child support. Defendant contends that the trial court lacked jurisdiction over the person of the defendant and consequently the award of child support was erroneous. We are of the opinion that defendant’s contentions are well founded.
The record reflects that defendant was a resident of the State of Alabama at the time plaintiff filed her complaint.1 Jurisdiction over the defendant, for the purpose of the divorce proceedings, was acquired through constructive service of process as provided by law (F.S. Section 61.061, F.S.A., the law in effect at the time of the proceedings). Defendant, through Alabama counsel, filed a sworn “plea in abatement” for the “sole and specific purpose of objecting to the jurisdiction of said *551court”.2 The court rejected the “plea” and construed the “plea” as an answer granting the defendant leave to file a supplemental or further answer. No further pleadings of defenses were filed.3 The court proceeded to enter a final judgment of divorce granting plaintiff permanent custody and control of the minor child of the parties and awarding her weekly child support.
The error in the judgment below is clearly reflected in the decision in Adams v. Adams, Fla.App.1969, 218 So.2d 777, at 778:
“It appears from the record and briefs that neither jurisdiction in personam nor in rem was obtainedj and therefore insofar as the final judgment provided for money judgments against the defendant for alimony and support of child payments, the same as in error and contrary to the decisions of our Courts as laid down by the Supreme Court of Florida in Pawley v. Pawley, 46 So.2d 464, 28 A.L.R.2d 1358 (1950) and by the Third District Court of Appeal of Florida in Voss v. Voss, 169 So.2d 351 (1964).” (Emphasis added.)
Although defendant’s “plea” did not conform to Florida practice such response properly and timely raised the question of the court’s jurisdiction over his person. Cf. Robinson v. Loyola Foundation, Inc., Fla.App.1970, 236 So.2d 154.4
Accordingly, the final judgment is modified by deleting therefrom the provisions thereof ordering the payment of support money and said decree stands reversed to such extent.
REED, C. J., and WALDEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chapman v. Lamm, 388 So. 2d 1048 (Fla. 3d DCA 1980)…e by publication will not support an order for contempt for failure to pay support contained in the final judgment. See Hunter v. Hunter, 359 So. 2d 500 (Fla. 4th DCA 1978); Palmer v. Palmer, 353 So. 2d 1271 (Fla.1st DCA 1978); and Carnes v. Carnes, 256 So. 2d 550 (Fla.4th DCA 1972). It is suggested that Chapman later appeared and submitted himself to the jurisdiction of the court. See Keena v. Keena, 245 So. 2d 665 (Fla.1st DCA 1971). The record does not support a conclusive finding by this court regarding t…
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Cook v. Cook, 524 So. 2d 1100 (Fla. 1st DCA 1988)…titioner meets the residency requirements and properly serves process by publication; however, the court does not thereby obtain personal jurisdiction over the out-of-state spouse with regard to issues of child custody and support. Carnes v. Carnes, 256 So. 2d 550 (Fla. 4th DCA 1972); Adams v. Adams, 218 So. 2d 777 (Fla. 1st DCA 1969). The lower court did not err in denying the motion to dismiss the action as a whole, but did err in denying the motion as to child custody and support. We further find that th…
Authorities Cited
- Pawley v. Pawley, 46 So.2d 464 (Fla. 1950)
- Voss v. Voss, 169 So. 2d 351 (Fla. 3d DCA 1964)
- Robinson v. Loyola Found., Inc., 236 So. 2d 154 (Fla. 1st DCA 1970)
- Adams v. Lexine L. Adams, 218 So. 2d 777 (Fla. 1st DCA 1969)