WAYNE ROSEN, APPELLANT,
v.
JEANNE ROSEN, APPELLEE
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A husband challenges the trial court's denial of his motion to dismiss for lack of personal jurisdiction in his wife's separate maintenance and custody action. The appellate court reverses, finding that the wife failed to establish the requisite jurisdictional facts for constructive service under Florida's long-arm statute.
The appellate court reversed the trial court's denial of the husband's motion to dismiss, holding that constructive service was improper because the wife failed to prove or allege facts satisfying the requirements of Florida Statute § 48.193(1)(e).
[1] Constructive service of process under Florida's long-arm statute is inapplicable absent proof or allegation that the non-resident defendant was formerly a Florida residen…
[2] The burden of proof rests on the party seeking to effect service under substituted service statutes to present facts clearly justifying their applicability.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“§ 48.193(1) (e), Fla.Stat., permits constructive service of process over a non-resident husband in a situation where he has been a resident of Florida and is now a resident of a foreign state, or is a resident of Florida residing in a foreign state.”
Establishes the statutory requirements for constructive service jurisdiction over the defendant.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition for separate maintenance, child support, custody, attorneys' fees, costs, and an adjudication of property rights against her…
The full statement of facts, procedural history, and disposition for this case are member content.
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NATHAN, Judge.
This is an interlocutory appeal by the husband, the respondent in the circuit court, from an order denying his motion to dismiss or quash by special appearance, as to the issues of separation and custody.
The wife filed a petition for separate maintenance, child support, custody, attorneys fees and costs and an adjudication of property rights. The husband was served by publication, and on motion to dismiss he challenged the court’s jurisdiction over him and over the subject matter. By stipulation, as reflected in the order of the court, the motion to dismiss was denied and the proceedings were stayed pending this appellate review.
The appellant-husband contends that constructive service is not authorized where the relief sought is alimony, attorneys fees and costs and support money. He further contends that the proper procedure for a determination of custody is a writ of ha-beas corpus.
The appellee-wife contends that under § 61.10, Fla.Stat., she may obtain an adjudication of the obligations of the husband to her, and under § 61.09, Fla.Stat., she may obtain monetary relief such as alimony and child support, and that § 48.193, Fla.Stat., authorizes constructive service therefor. Initially, we note that § 48.193(1) (e), Fla.Stat., permits constructive service of process over a non-resident husband in a situation where he has been a resident of Florida and is now a resident of a foreign state, or is a resident of Florida residing in a foreign state. Absent any indication from the record that the wife proved, or even alleged, that the husband satisfies either of these requirements, this long arm statute is inapplicable and service must be quashed. See Nichols v. Seabreeze Properties, Inc., Fla.App. 1974, 302 So. 2d 139, wherein this court stated that the burden of proof is on the one who is seeking to effect service under the substituted service statutes to present facts which clearly justify the applicability of the said statutes.
Sufficient proof, evidence or even allegations to justify application of the constructive service statute being absent from the record sub judice, the court erred in denying the husband’s motion to dismiss or quash, and the order appealed hereby is reversed.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mouzon v. Mouzon, 458 So. 2d 381 (Fla. 5th DCA 1984)…ort the attempted use of the long-arm statute to acquire jurisdiction was ineffectual in this case because the complaint failed to allege, as is essential, that the defendant did either of the two acts set forth in the statute,17 see Rosen v. Rosen, 306 So. 2d 546 (Fla. 3d DCA 1975) (a separate maintenance action), and failed to allege facts demonstrating how the cause of action for child support arose from the doing of either of those acts. See Soule, supra. See also American Motors Corporation v. Abrahantes…1 / 2
Authorities Cited
- Nichols v. Seabreeze Props., Inc., 302 So. 2d 139 (Fla. 3d DCA 1974)