ALICE H. SAHARUNI, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF SOOREN SAHARUNI, DECEASED, APPELLANT,
v.
SEDA NERCESSION SAHARUNI, APPELLEE
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A motion to set aside a dissolution of marriage judgment based on a perjured affidavit for constructive service, which deprived the defendant of due process and thus rendered the judgment void, can be heard more than one year after the judgment.
Appellee-wife filed a motion for relief from a dissolution of marriage judgment, alleging a perjured affidavit for constructive service that denied he…
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PER CURIAM.
The question herein is whether appellee-wife’s motion for relief from a judgment of dissolution of marriage, filed pursuant to Fla.R.Civ.P. 1.540(b) and alleging a perjured affidavit for constructive service in commencement of the action, may be heard when filed more than one year after judgment. The trial judge answered in the affirmative and we agree.
Rule 1.540(b), supra, provides that a motion filed thereunder and predicated on fraud must be made “not more than one year after the judgment,” while such a motion predicated on grounds that the “judgment ... is void” may be made “within a reasonable time.” True it is that a “perjured” affidavit for constructive process is a fraud — certainly upon the court; but if, as here,1 it also operates allegedly to deny the defendant due process “notice,” no jurisdiction over the person of the defendant ever vested in the court and its judgment as to such defendant is void.
This principle is particularly appropriate in a marriage dissolution proceeding.
We are of the view, therefore, that the motion filed herein is properly before the court and that the interlocutory order denying appellant’s motion to dismiss it should be affirmed.
AFFIRMED.
HOBSON, A. C. J., and McNULTY and OTT, JJ., concur. . The affidavit alleged that the plaintiff-hus- . band could not find the whereabouts of the wife notwithstanding due diligence. The allegations in the motion herein not only deny this, but set forth underlying facts which, if true, affirmatively put the lie to it.
. See Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla.4th DCA 1970); Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla.4th DCA 1969).
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Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)…y constitutionally valid judgment or order. Initially, we note that a motion to vacate a final judgment lies under Fla.R.Civ.P. 1.540(b)(4) where the final judgment is void for lack of jurisdiction or proper due process notice, Saharuni v. Saharuni, 343 So. 2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970); 7 Moore’s Federal Practice § 60.25(2) (1979); Restatement of Judgments § 8, [*200] Comment c (1942); and that a contempt order is subject to reversal upon direct a…
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Niki Unlimited, Inc. v. Legal Servs. OF Greater Miami, 483 So. 2d 46 (Fla. 3d DCA 1986)…udgment was void in that Niki was denied due process thereon — namely, that it was denied notice and an opportunity to be heard on the subject motion for attorney’s fees. Gelkop v. Gelkop, 384 So. 2d 195, 199 (Fla.Sd DCA 1980); Saharuni v. Saharuni, 343 So. 2d 674 (Fla.2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970); 7 Moore’s Federal Practice § 60.25(2) (1979); Restatement of Judgments § 8, comment c (1942); Fla.R. Civ.P. 1.540(b)(4). Considering, then, the substance of Niki's…
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Monsour v. Bruce Balk, A.I.A., P.A., 705 So. 2d 968 (Fla. 2d DCA 1998)…to no notice of the proceedings. This requires the trial court to set aside the judgment. See Myrick v. Walters, 666 So. 2d 249 (Fla. 2d DCA 1996). Furthermore, this can be done by motion at any time. See Fla. R. Civ. P. 1.540; Saharuni v. Saharuni 343 So. 2d 674 (Fla. 2d DCA 1977). Finally, we note that Dr. Monsour correctly argues that when a contract requires arbitration of all claims between the parties, this provision is not waived by the filing of a motion to set aside a judgment or a motion to dismis…
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- Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969)
- Osceola Farms Co. v. Sanchez, 238 So. 2d 477 (Fla. 4th DCA 1970)