PATRICIA CAROL LAHR, APPELLANT,
v.
LARRY O. LAHR, APPELLEE
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Patricia Lahr appealed a dissolution of marriage judgment, challenging both the trial court's denial of her motion to dismiss and the award of marital property to her husband. The court affirmed the dissolution and custody award but reversed the property distribution, holding that the trial court lacked jurisdiction over the property because the complaint failed to adequately describe it as required by due process.
The court presumed the trial court's denial of the motion to dismiss was correct and found no error on that issue. However, the court held that while the trial court had jurisdiction to dissolve the marriage and award custody, it lacked jurisdiction over the marital property because the complaint failed to include a specific description of the property as required by statute and due process.
[1] A party seeking appellate review bears the burden of demonstrating error in the trial court's proceedings.
[2] A trial court lacks jurisdiction to distribute property in a dissolution action when the nonresident defendant is served by publication and the notice of action and compl…
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Join FLexlaw to unlock all legal intelligence“The dissolution proceedings are in the nature of a quasi in rem action. The court did not have personal jurisdiction over appellant because she was a nonresident served by constructive process and did not have jurisdiction over the property because neither the notice of the action nor the complaint contained a description of the property.”
Establishes the jurisdictional framework for dissolution actions and the critical requirement that property be described in the notice and complaint.
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Join FLexlaw to unlock all legal intelligenceLarry Lahr sued Patricia Lahr, a nonresident, for dissolution of marriage, seeking custody of two minor children and distribution of real and personal…
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BOARDMAN, Acting Chief Judge.
Appellee/petitioner brought suit against appellant/respondent seeking a dissolution of marriage, custody of the two minor children, and a distribution of real and personal property. According to the parties’ briefs,1 process was served on the nonresident appellant by publication. A default was entered by the clerk of the circuit court against appellant for her failure to serve or file responsive pleadings. After the entry of the default, appellant filed a motion to dismiss the petition on the ground that appellee had not been a resident of Florida for six months prior to filing his petition.
The motion to dismiss was returned to appellant pursuant to RCP 1.500(c). However, a hearing was subsequently held on said motion which, according to the parties’ briefs,2 was treated by the court as a motion to set aside the default. The motion was denied. Following a hearing on the petition for dissolution the circuit court entered a final judgment which dissolved the marriage, granted custody of the two minor children of the parties to appellee, and awarded the marital home, furnishings and an automobile to appellee. Appellant filed this timely appeal from that judgment.
Appellant contended that the circuit court erred in denying the motion to dismiss. The record on appeal in this case does not contain the transcript of the hearing on the motion to dismiss. It is a basic principle of appellate review that appellant has the burden of showing error in the trial court proceedings. We, therefore, presume that the trial court’s denial of the motion was correct and hold that no error was committed.
Appellant further contended that the trial court erred in awarding the real and personal property to appellee.
We agree and hold that while the court did have jurisdiction to dissolve the marriage and to award custody of the children, it did not have jurisdiction over the property. The dissolution proceedings are in the nature of a quasi in rem action. The court did not have personal jurisdiction over appellant because she was a nonresident served by constructive process and did not have jurisdiction over the property because neither the notice of the action nor the complaint contained a description of the property.
Section 49.08(4) of the Florida Statutes requires that the notice of publication describe the realty which is the subject matter of the action. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, Fla.1973, 274 So. 2d 522; Torchiana v. Torchiana, Fla.App.2d 1959, 111 So. 2d 103.
This court held in Griffin v. Zinn, Fla.App.2d 1975, 318 So. 2d 151, that the requirement for a description of the property which is to be affected by the judgment is of constitutional dimension. To satisfy the notice element of due process the complaint must set forth that the action is directed against the property itself and include a specific description of that property. Griffin, supra. See also Shannon v. Great Southern Equipment Co., Fla.App.2d 1976, 326 So. 2d 19. In the case before us the petition simply alleged that “[t]he parties own real and personal property to be distributed by this Court” and prayed “[t]hat this Court award the properties to Husband.” The said allegations do not satisfy the requirements of Griffin.
Therefore, the trial court did not have jurisdiction over either the realty or the personalty. Accordingly, that part of the final judgment granting dissolution of the marriage and awarding custody of the children is affirmed. That part of the judgment awarding the realty and personalty to appellee is reversed.
AFFIRMED in part; REVERSED in part.
GRIMES and SCHEB, JJ., concur. . No service of process is contained in the record on appeal.
. No transcript of the hearing is included in the record on appeal.
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Davis v. Rosman Charles Dieujuste, 496 So. 2d 806 (Fla. 1986)…d the nature of the service of process in the original dissolution proceeding, the trial court was without jurisdiction to adjudicate the property rights of the parties. See, e.g., Wright v. Wright, 411 So. 2d 1334 (Fla. 4th DCA 1982); Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976); Nethery v. Nethery, 212 So. 2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So. 2d 288 (Fla. 3d DCA), cert. denied, 166 So. 2d 754 (Fla.1964); Webb v. Webb, 156 So. 2d 698 (Fla. 3d DCA 1963). The rule of Cooper that a party to…
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Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)…fe’s maiden name. The trial court clearly had in rem jurisdiction over the marriage to enter these provisions of the final judgment as the husband was properly served by constructive process in the original marriage dissolution action. Lahr v. Lahr, 337 So. 2d 837 (Fla. 2d DCA 1976); § 49.011(4), Fla.Stat. (1979). Indeed, the husband concedes this issue both in his brief and on oral argument in this cause. As such, these provisions of the final judgment were validly entered. B The final judgment next awards…1 / 2
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McCABE v. McCABE, 600 So. 2d 1181 (Fla. 5th DCA 1992)…2d DCA 1984); Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983); Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980); Palmer v. Palmer, 353 So. 2d 1271 (Fla. 1st DCA 1978); Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976); Lahr v. Lahr, 337 So. 2d 837 (Fla. 2nd DCA 1976). . We have also considered the provisions of section 47.081 of the Florida Statutes (1991). This section provides that any person in the armed services of the United States, and the spouse of any such person, shall be prima faci…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. JAI Alai, Inc. v. Lake Howell Water & Reclamation Dist., 274 So. 2d 522 (Fla. 1973)
- Zelma M. Griffin v. Zinn, 318 So. 2d 151 (Fla. 2d DCA 1975)
- Torchiana v. Torchiana, 111 So. 2d 103 (Fla. 2d DCA 1959)
- Thompson v. State, 326 So. 2d 19 (Fla. 2d DCA 1976)