JOAN T. KERN, APPELLANT,
v.
JACK D. KERN, APPELLEE
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Joan Kern appeals an order denying her motion to set aside a default judgment in a divorce action. The court reversed, holding that she presented sufficient evidence of the opposing party's misrepresentations regarding child custody to warrant relief and a trial on the merits under Florida Rule 1.540(b).
The court held that Joan Kern presented sufficient evidence of misrepresentation by Jack Kern regarding child custody matters to warrant setting aside the default judgment and granting her a trial on the merits on that issue and other matters contained in a prior separation agreement.
[1] A court may relieve a party from a final judgment based on fraud, misrepresentation, or other misconduct of an adverse party.
[2] Florida courts favor setting aside defaults to permit a trial on the merits, particularly when the case has not been decided on the merits.
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Join FLexlaw to unlock all legal intelligence“The policy of the courts of Florida in setting aside defaults in order to permit a trial on the merits is one of liberality; a greater leniency is granted in those cases not decided on the merits.”
Establishes the fundamental principle guiding Florida courts' approach to motions to set aside defaults.
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Join FLexlaw to unlock all legal intelligenceJoan Kern failed to file a responsive pleading in a divorce action against Jack Kern, resulting in a default and final judgment entered in Jack's favo…
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PER CURIAM.
This is an appeal by Joan T. Kern, respondent, from an order denying her motion to set aside default and final judgment entered pursuant thereto in favor of Jack D. Kern, petitioner. The respondent’s motion to set aside default and final judgment was filed pursuant to Rule 1.540(b), FRCP, 31 F.S.A., and was predicated upon “misrepresentations” and “fraudulent misrepresentations” made by the petitioner upon which respondent relied and which misrepresentations result ed in respondent’s failure to file a responsive pleading in a divorce action between the parties thereby allowing the default and final judgment to be entered against her. Rule 1.540(b) provides, in part:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
The policy of the courts of Florida in setting aside defaults in order to permit a trial on the merits is one of liberality; a greater leniency is granted in those cases not decided on the merits. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App. 1972, 261 So. 2d 540; Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1964, 160 So. 2d 733; 19 Fla. Jur., Judgments and Decrees, Sec.
457. Reviewing the evidence in the record in light of the foregoing principle and with due regard to the proposition that a motion to vacate is addressed to the discretion of the trial court, we are of the opinion that the motion to vacate should have been granted. See North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So. 2d 849; Gordon v. Vaughan, Fla.App.1967, 193 So. 2d 474; Coggin v. Barfield, 1942, 150 Fla. 551, 8 So. 2d 9. There was sufficient evidence to demonstrate misrepresentation by the petitioner with particular regard to the matter of child custody so as to afford respondent a trial on the merits with respect to that issue and with regard to the other matters contained in a separation agreement previously entered into by the parties prior to the dissolution of their marriage; the misrepresentations were shown by the respondent to be such as to cause her not to contest the dissolution proceedings. See Horra v. Horra, Fla.App.1960, 118 So. 2d 670; 10A Fla.Jur., Dissolution of Marriage, Sec. 17.
The order appealed is reversed with directions to vacate the default and set aside the final judgment and take such further action as may be deemed appropriate and not inconsistent herewith.
OWEN, C. J., and WALDEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kern v. Kern, 333 So. 2d 17 (Fla. 1976)…dissolution of marriage in the Palm Beach County Circuit Court on May 11, 1972. The court entered a default and final judgment granting the dissolution and awarding him custody of the minor children. This order was reversed on appeal. Kern v. Kern, 291 So. 2d 210 (Fla.App. 4th 1974), cert. denied, 294 So. 2d 657 (Fla.1974). However, the minor children have continued to live with their father. On remand the trial court held a contested hearing, and thereafter Mrs. Kern moved for a change of venue to the Colli…
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Kern v. Kern, 309 So. 2d 563 (Fla. 2d DCA 1975)…nd the custody of the six children born of the marriage was awarded to the husband with reasonable rights of visitation to the wife. The wife filed timely appeal and the decision of the circuit court was reversed in Kern v. Kern, Fla.App. 4th, 1974, 291 So. 2d 210, cert. den. 294 So. 2d 657. Upon the case being remanded to the Circuit Court in Palm Beach County, the wife, through her attorney, filed a motion to change venue as provided in Section 47.-122, Florida Statutes, from Palm Beach County to Collier C…
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Mabbie Igleheart v. Jayne, 338 So. 2d 81 (Fla. 4th DCA 1976)…is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and permitting a trial on the merits of the case. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Kern v. Kern, 291 So. 2d 210 (Fla. 4th DCA 1974). In my view, there is sufficient evidence in the record demonstrating mistake, inadvertence or an excusable neglect within the contemplation of Rule 1.540(b), supra. Although it is recognized that a motion to vacate is addressed…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Coggin v. Barfield, 150 Fla. 551 (Fla. 1942)
- Fla. Inv. Enters., Inc. v. The Ky. Co., Inc., 160 So. 2d 733 (Fla. 1st DCA 1964)
- Etienne v. Irvin, 45 Fla. L. Weekly D2032 (Fla. 3d DCA 2020)
- Gordon v. Vaughan, 193 So. 2d 474 (Fla. 3d DCA 1967)
- Collie v. State, 261 So. 2d 540 (Fla. 3d DCA 1972)
- Imperial Indus., Inc. v. Moore Pipe & Sprinkler Co., 261 So. 2d 540 (Fla. 3d DCA 1972)
- Kathaleen Mary Horra v. Horra, 118 So. 2d 670 (Fla. 3d DCA 1960)