In divorce actions, as in other cases, the court can enter a default judgment against a party that fails to respond to a complaint. While a default judgment may be proper in a straightforward divorce action, it is not suitable in a case involving the custody of a child. This was demonstrated in a recent Florida opinion, in which the appellate court discussed the exercise of personal jurisdiction over absent defendants and the appropriateness of a judgment by default in custody matters. If you or our spouse intend to end your marriage, it is important to understand your rights, and it is in your best interest to meet with a knowledgeable Florida divorce attorney to assess your rights.
The Underlying Action
It is reported that the parties were married in October 2015 and had one child together. They separated in March 2017, and in December 2019, the wife filed a petition for the dissolution of marriage with a minor child. At the time, the wife lived in Key West, the husband lived in Illinois, and the child lived with the husband’s family in Florida. The husband was personally served with the divorce papers by a Sheriff’s deputy in Illinois.
Allegedly, the husband did not enter an appearance or make any effort to contest the divorce. The hearing was then held in February 2020, during which a special magistrate recommended granting the wife’s petition, thereby awarding her sole custody of the child. The court subsequently entered a default judgment, dissolving the marriage and granting the wife sole custody of the child. The husband then appealed.
Default Judgments in Family Law Cases
On appeal, the husband’s primary contention was that the trial court erred in exercising personal jurisdiction over him because the return of service form did not indicate the time of day he was served. The court was not persuaded by this argument, finding that he failed to meet the burden of proving that the trial court committed a reversible error in overlooking this issue.
Further, although the husband did not assert that the order was improper with regard to the award of child custody, the court took it upon itself to address the issue. The court explained that, under Florida law, it is well settled that when a divorcing couple has a minor child, a court cannot enter a default judgment with regard to custody without first allowing the defaulting parent the chance to present evidence on issues related to the child. Thus, the court vacated the order to the extent it granted sole custody to the wife.
Meet with a Knowledgeable Florida Divorce Attorney
If people do not promptly respond to divorce petitions, it might irreparably impair their rights and it is advisable for anyone faced with a divorce action to speak to an attorney as soon as possible. If you need assistance with a divorce case, the knowledgeable attorneys of Lusk, Drasites & Tolisano, P.A. can advise you of your rights and aid you in pursuing the best legal result available under the facts of your case. You can reach us at 800-283-7442 or via the form online to set up a meeting.