Default Judgments and Divorce Proceedings in Florida


Default Judgments and Divorce Proceedings in Florida 
 

Spouses who cannot agree on a parenting plan may require court-appointed assistance.

Seeking to end a marriage is often emotionally difficult. It can also be logistically difficult when your spouse is located somewhere far away and does not respond to the legal documents sent to him/her. Default judgments can be useful to allow you to move on with your life, but they require careful attention to the procedural rules the law has established. In a recent 2d District Court of Appeal case, the court reversed a wife’s default judgment because she made new claims in her amended petition for dissolution, but did not serve that petition on her husband.

When Loraine Barry filed for divorce from her husband, Luca Baricchi, in late 2011, she asked for sole possession and use of the couple’s Tampa condo as well as the couple’s other Tampa property, and half of the proceeds from two apartments in Italy that the couple had recently sold. The wife sought and received a default judgment after the husband failed to respond.

After the court entered the default, the wife amended her petition, asking the court to give her sole ownership of all the Tampa properties, part ownership of another property in Italy that the husband bought, along with sole ownership of the couple’s six motorcycles and Mercedes car. The trial court allowed the wife to proceed on her amended petition, even though she never served that version on the husband.

This lack of service formed the basis of the appeal the husband launched. By letting the wife go forward on a petition the husband never received, the trial court denied the husband his due process rights, he argued.

The appeals court determined that he was correct. The amended petition made new claims and asked for new forms of relief that the original petition never mentioned. This was constitutionally problematic because default judgments only cover the claims made (and properly pled) and the relief specifically sought in the pleading that existed at the time of the entry of the default judgment. Default judgments are not meant “to give a strategic advantage” to the parting seeking the default. By allowing the wife in this case to pursue the claims and requests in her amended petition, without requiring her to serve that petition on the husband and give him the chance to respond and assert a defense, the trial court gave the wife exactly such an improper strategic advantage.

Additionally, the family court rules made it clear that Barry was legally required to serve the amended petition on her husband. The rules allow a spouse to bypass serving the opposing spouse unless the amended petition contains “new or additional claims.” By making the changes Barry did, her amended petition had new and/or additional claims, and letting her go forward without service was improper.

How We Can Help

If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed family law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at www.FerrisLawFirm.com.

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