ELOISE B. FLYNT, APPELLANT,
v.
JOSEPH R. FLYNT, APPELLEE
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Wife appeals an interlocutory order denying her motion to set aside a default judgment in a dissolution of marriage case. The appellate court reversed and remanded for a proper evidentiary hearing on the motion to vacate, finding the trial court failed to adequately consider the husband's allegations of misleading conduct and meritorious defenses.
The appellate court reversed the order denying the motion to vacate and remanded the case to the trial court with directions to hold a proper evidentiary hearing to determine whether the husband established excusable neglect and meritorious defenses warranting vacation of the default and final judgment.
[1] A trial court may set aside a default and final judgment upon a showing of excusable neglect and a meritorious defense.
[2] A party seeking to set aside a default judgment must adequately prove excusable neglect and a meritorious defense.
Previewing 2 of 4 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“If the allegations of the motion to vacate were adequately proven, the trial court would have grounds to vacate the default and final judgment.”
Establishes that the trial court had the legal authority to grant the motion if the husband's allegations were proven.
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Join FLexlaw to unlock all legal intelligenceAppellant wife filed for dissolution of marriage and served the appellee husband with process, but he failed to respond. Approximately one month later…
The full statement of facts, procedural history, and disposition for this case are member content.
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DOWNEY, Judge.
The wife seeks review of an interlocutory order setting aside a default and final judgment in a dissolution of marriage proceeding.
It seems appellant filed suit in Broward County for dissolution of marriage, and though appellee was personally served with process, he failed to file any pleadings or appear in the case. But a month or so later appellee himself filed a petition for dissolution of marriage in Broward County. The trial court entered a default in the case on the appellant’s petition and proceeded ex parte to final hearing and judgment. Said judgment dissolved the marriage, awarded custody of appellee’s daughter by a prior marriage to appellant, gave her the jointly owned marital home as lump sum alimony, and directed dismissal of the appellee’s suit for dissolution.
Approximately one month later appellee’s attorney learned of the final judgment and dismissal of appellee’s suit. He thereupon filed a motion to set aside the default and final judgment. Among other grounds, the following are alleged in said motion: 1) after appellee was served with process in the appellant’s suit, appellant misled him into believing that she was not going to prosecute the suit further, therefore appel-lee filed his own suit to have the matter resolved; 2) the appellant was awarded lump sum alimony with no showing of her need or appellee’s ability to pay, and appel-lee’s business was bankrupt and he was living on unemployment compensation; 3) appellant was not in need of alimony; 4) appellee did not abandon his children and had furnished their support; 5) appellee had other meritorious defenses.
Several short hearings were had on the motion to vacate the default and judgment but due to the inadequacy of the time set aside therefor virtually no testimony was taken in support of said motion. The hearings generally amounted to a colloquy between the court, counsel, and the parties.
If the allegations of the motion to vacate were adequately proven, the trial court would have grounds to vacate the default and final judgment. However, in the present state of the record there is inadequate proof of excusable neglect and a meritorious defense.
Accordingly, the order appealed from is reversed and the cause is remanded to the trial court with directions to hold an evidentiary hearing to determine the merits of the motion to vacate.
REVERSED and REMANDED with directions.
WALDEN and CROSS, JJ., concur.
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Clemente Hernandez v. Nat'l Bank OF Fla., 423 So. 2d 920 (Fla. 3d DCA 1982)…AM. The trial court abused its discretion in denying, without an evidentiary hearing, the motion to vacate and set aside the final judgment entered after default. Travelers Insurance Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979); Flynt v. Flynt, 336 So. 2d 690 (Fla. 4th DCA 1976); Patricia Russell Designs, Inc. v. Gans, 277 So. 2d 801 (Fla. 3d DCA 1973). See generally Upshaw v. Dade County, 247 So. 2d 337 (Fla. 3d DCA 1971). Accordingly, the order appealed from is reversed and the cause remanded to the co…