Becker v. Becker
| Decision Date | 20 July 2022 |
| Docket Number | 3D22-0352 |
| Parties | Daniella Becker, Appellant, v. Timothy Becker, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
An Appeal from a non-final order the Circuit Court for Miami-Dade County, Lower Tribunal No. 20-10860, Christina Marie DiRaimondo, Judge.
Albert W. Guffanti, P.A., and Albert W. Guffanti, for appellant.
The Law Offices of A.K. Esquire, PLLC and Matthew Z. Karim (Fort Lauderdale), for appellee.
Before LINDSEY, HENDON and BOKOR, JJ.
We affirm the trial court's denial of Daniela Becker's motion to dismiss based on improper service. Competent substantial evidence supports the trial court's findings that Daniela attempted to evade service of process initiated by her husband, Timothy Becker.[1] The issue hinges on whether the failure of the process server to inform her of the contents of the items rendered service defective.[2]
"Although a return of service is presumptively correct, the invalidity of service may be established by clear and convincing evidence." Montano v. Montano, 472 So.2d 1377 1378 (Fla. 3d DCA 1985). We have no such clear and convincing evidence to undermine the presumptively valid service here. Under the facts of this case, the process server complied with the service statute. See § 48.031, Fla Stat.
Competent substantial evidence supports the trial court's conclusion that Daniella "was properly served the Petition for Dissolution of Marriage with minor children, on March 13th, 2021." Competent, substantial evidence, specifically, the affidavit and testimony of the process server, supports a conclusion that the process server clearly identified that he "had a summons and complaint and that [Daniella] was being served with a lawsuit," that Daniella didn't accept the papers, that she didn't answer to her name, that she did not wait for an explanation of the contents of the papers, and that she proceeded into her father's house instead of accepting such service. Further, the record evidence establishes that after Daniella evaded service, her father blocked access and said the process server would have to "deal with him." At this point, the process server testified he placed the papers in a conspicuous location and screamed to anyone listening that Daniella has been served. Additionally, the process server called Daniella after service, leaving an (unreturned) phone message attempting to explain service.
Daniella doesn't contest that she received the papers or that the process server attempted service; rather, her argument of improper service hinges upon the process server's alleged failure to explain the contents of the papers in the face of her evasion of service. Daniella cites in her reply to cases in which this court quashed service based on either the process server's failure to identify the recipient, or failure to explain the contents of the papers served. See Montano, 472 So.2d at 1378 (); see also Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So.2d 558, 559 (Fla. 3d DCA 1981) (affirming trial court order setting aside default where deputy sheriff who served papers did not recall explaining contents and "that service consisted solely of a knock on the door, a man saying 'Mendoza', and delivery of papers"). However, the cases cited contain critical distinctions from the record evidence in this matter. Here, unlike Montano, no one disputes that the process server identified Daniella, the correct recipient, and attempted to serve her. Here, unlike Mendoza, the record contains testimony that the process server did more than simply drop off papers; he explained he had a summons and complaint relating to a lawsuit and screamed into the house after leaving the papers that Daniella was served. Additionally, here, unlike Mendoza, the record...
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