Canney v. Canney
| Decision Date | 20 July 1984 |
| Docket Number | No. 83-2483,83-2483 |
| Citation | 453 So.2d 179 |
| Parties | Rose CANNEY, Appellant, v. Vincent CANNEY, Appellee. |
| Court | Florida District Court of Appeals |
Geneva Forrester, St. Petersburg, for appellant.
Lawrence D. Black, Largo, for appellee.
Rose Canney challenges the trial court's entry of a final and an amended final judgment of dissolution of her marriage to Vincent Canney. The trial court, she argues, erred in refusing to hear her motion to set aside a default entered against her prior to the final hearing.
In March 1982, the wife filed her petition for dissolution. Her husband answered and counterpetitioned. Several months later his attorney propounded some interrogatories and notified the wife's counsel that the wife's deposition would be taken on February 23, 1983. The wife failed to answer the interrogatories or to appear for her deposition.
On March 2, 1983, the wife's attorney filed a motion to withdraw from the case, alleging that the wife no longer wished him to represent her. The trial court granted the motion. Both the motion and the court order contained an incorrect mailing address for the wife.
The husband filed a motion for default or to impose sanctions against the wife for her failure to answer the interrogatories or attend the deposition. In response, the trial court ordered the wife to answer additional interrogatories and appear for another deposition. This motion and order also indicated they were mailed to an incorrect address for the wife. When she again failed to provide discovery, the trial court, upon the husband's renewed motion for sanctions, entered a default against the wife striking her pleadings on July 6, 1983. This order and subsequent notices were sent to the wife's correct address. A final hearing on the dissolution of marriage was scheduled for October 28, 1983.
Sometime prior to the final hearing, the wife retained another attorney after receiving a summons in a separate suit the husband filed against her. This attorney became aware of the default order when she contacted opposing counsel about the second suit. On October 28, 1983, the wife's attorney filed a motion to set aside the default, alleging that her client was unable to read and comprehend the English language, and had not received any of the documents concerning the requested discovery. The attorney also alleged that the wife was never aware that she needed to produce documents, answer interrogatories or appear at court hearings. Moreover, the wife had no objection to providing discovery.
On that same date, at the final hearing on the husband's counterpetition for dissolution of marriage, the trial judge denied the wife's motion to set aside the default. The court cited two grounds. First, the judge said, as a successor judge, he had no jurisdiction to set aside a default entered by a previous judge in the case. Second, the wife's motion was untimely filed. The trial court then heard the dissolution proceedings, allowing the wife only a limited participation in view of the previously entered default. She was not allowed to offer any evidence concerning matters for which she previously failed to provide discovery. At the conclusion of the hearing, the trial court entered a written final judgment and, subsequently, an amended final judgment of dissolution of marriage.
The wife argues that the trial court erroneously denied her motion to set aside the default without holding a hearing on the merits. We agree. 1
To set aside a default, a party must show excusable neglect and a meritorious defense. Fla.R.Civ.P. 1.500(d) and 1.540(b); Westinghouse Elevator Co. v. DFS Construction Co., 438 So.2d 125 (Fla. 2d DCA 1983); Abray Construction Co. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983). Here, the wife's attorney alleged by motion that certain documents and notices in the proceedings were not received by the wife. This ground may be an adequate one on...
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