The West Palm Beach Divorce & Alimony Award that Didn’t Have to Be
The West Palm Beach divorce attorneys of Nugent & Zborowski recently observed another example of why divorce lawyers need to be familiar with the Florida Rules of Civil Procedure.
It is well known amongst Stuart divorce lawyers that one of the first things that needs to be analyzed at the outset of a case is whether the Court has jurisdiction over a client. As stated by this Charleston Family Law Attorney, “agreeing to jurisdiction…is misguided.” The danger of not being familiar with the rules of civil procedure is that you could be agreeing to jurisdiction without even knowing that you are doing so.
In Lubin v. Lubin, 35 Fla. L. Weekly D2688a (Fla. 4th DCA Dec. 8, 2010), the court reversed the trial court’s decision to set aside a final judgment on account of the Husband “participating” in the proceedings. The Wife had filed her Petition for Dissolution in 2005. The trial court allowed Wife to serve Husband by publication after her attempts to locate Husband failed. The Husband never filed an Answer to Wife’s Petition, which led to the trial court eventually entering a final judgment that awarded Wife the marital residence, two of the couple’s three cars, permanent alimony and attorney’s fees and costs.
In 2008, the Wife filed a Motion to Enforce the Final Judgment. Husband’s Boca Raton Divorce Lawyer filed his notice of appearance on May 14, 2008. On June 5th, the Husband appeared without an attorney at a hearing before a Magistrate and stated that he had not paid support to his former wife because he did not know that a final judgement had ever been entered. On June 8th, the Husband’s attorney filed a motion to vacate the final judgment and the trial court concluded that the court had lacked jurisdiction to decide matters pertaining to equitable distribution and support since the Husband was never personally served with process.
On appeal, the Lubin court reversed the trial court and determined that Husband waived his right to argue that the trial court lacked the personal jurisdiction requisite to equitably distributing the parties’ assets or to award alimony when he appeared at the hearing before the Magistrate without raising a contemporaneous objection to lack of personal jurisdiction. The Lubin court acknowledged that the trial court most likely lacked the jurisdiction to grant anything besides an order dissolving the parties marriage but, nonetheless, that Husband waived his ability to challenge the final judgment because he did not raise his jurisdictional challenge BEFORE responding to the Wife’s enforcement case.
Click here to see Fourth District Court of Appeal’s opinion in Lubin.
The West Palm Beach Divorce Lawyers and Boynton Beach Paternity Attorneys of Nugent and Zborowski routinely handle challenges to personal jurisdiction that often arise in complex divorce and child custody cases. The firm’s appellate attorneys recently helped define Florida case law on what type of appearance constitutes the waiver of the right to challenge jurisdiction in Hollowell v. Tamburro (click here to view the Fourth District Court of Appeal’s opinion).
The West Palm Beach divorce lawyers of Nugent and Zborowski are West Palm Beach divorce attorneys, and also serve as Boca Raton divorce lawyers; Palm Beach Gardens divorce lawyers; Jupiter alimony attorneys; grandparents’ rights attorneys; and father’s rights attorneys. For more information or to schedule a consultation call (561) 844-1200 or visit the firm’s website, www.nugentlawfirm.com.
Filed Under Civil Procedure, Vacating Judgments