Canzoniero v. Canzoniero, 73--1441
| Decision Date | 10 January 1975 |
| Docket Number | No. 73--1441,73--1441 |
| Citation | 305 So.2d 801 |
| Parties | Irene CANZONIERO, Appellant, v. Michael J. CANZONIERO, Appellee. |
| Court | Florida District Court of Appeals |
Peter N. Hanna, Fort Lauderdale, for appellant.
Craig M. Haverfield of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
This is an appeal brought by a seventy-two year old wife from a dissolution of marriage judgment which was based upon constructive service. The dispositive appellate question is whether such service was perfected so as to give the court jurisdiction. Finding the procedure to have been defective, we reverse.
The controlling statute is Fla.Stat. 49.041 (1973):
'49.041 Sworn statement, natural person as defendant.--The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
'(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and
'(2) Whether such person is over or under the age of twenty-one years, if his age is known, or that his age is unknown; and
'(3) In addition to the above, that the residence of such person is, either:
'(a) Unknown to the affiant; or
'(b) In some state or country other than this state, stating said residence if known; or
'(c) In the state, but that he has been absent from the state for more than sixty days next preceding the making of the sworn statement, or conceals himself so that process cannot be personally served upon him, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.' (Emphasis supplied.)
The husband's sworn affidavit thereunder provided:
'. . . that he has made diligent search and inquiry to discover the residence of the said Respondent, and that the residence of said Respondent is . . . 405 Hartsdale Road, Hartsdale, New York.'
The mailed process to the sworn place of the wife's residence was returned with postal stamp, 'Addressee Unknown.' A default was entered against the wife on June 27, 1973.
It appears from the record without contradiction that the parties had been separated over ten years, at which time the husband moved to Florida. Their residence at time of separation was 405 Hartsdale Road, Hartsdale, New York, a place they had lived for seven months. The husband, when asked if he had made any search and inquiry to discover if the address contained in his affidavit for constructive service was correct, answered without qualification, 'No, I didn't.' The stale address resulted.
And from the foregoing it is concluded that the husband's affidavit was false in that, not only did he not make a Diligent search, he made No search.
What could he have done? The parties have four adult children. The affidavit of one son suggests the answer; he could have written to his children and readily obtained her proper place of residence. James G. Canzoniero swore:
'This is to verify that my father, Michael J. Canzoniero, was aware of the existing address of my mother, Irene Canzoniero residing at 26L Springvale Road, Croton on Hudson, New York, 10521, when his lawyer sent the original papers for divorce to the wrong address. 'He has been in contact with his children over the last several years. He has also been in contact with his brother, Amerigo Canzoniero; who resides in Brooklyn, New York and his sister Mrs. Luisa Suriani; residing in Ft. Lauderdale, Florida. During the past nine years of his estrangement, his children have either visited him or been in contact with my father. In January, 1972, my brother Joseph and I met with him during one of our visits to Florida. In conversation we brought up the subject of my mother, as was the case in the previous meetings with my father, and her living at the Senior Citizens Apartments in Springvale.
What is the husband's position? It appears from his counsel's statement that when process was returned unserved, counsel obtained from the husband the address of his two sons. Counsel then mailed the process to the sons, saying, ...
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Castro v. Charter Club, Inc.
...service on the defendant.” Lewis v. Fifth Third Mortg. Co., 38 So.3d 157, 164 (Fla. 3d DCA 2010) (quoting Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975)); Gmaz v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970) (noting that the test is whether the party seeking constructive se......
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LEWIS v. FIFTH THIRD MORTGAGE Co.
...circumstance to acquire the information necessary to enable him to effect personal service on the defendant.” Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975). Although this Court in Redfield noted that the case law has not drawn a bright line between efforts that demonstrat......
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Lewis v. Fifth Third Mortgage Company, No. 3D09-294 (Fla. App. 2/10/2010)
...circumstance to acquire the information necessary to enable him to effect personal service on the defendant." Canzoniero v. Canzoniero, 305 So. 2d 801, 803 (Fla. 4th DCA 1975). Although this Court in Redfield noted that the case law has not drawn a bright line between efforts that demonstra......
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Shepheard v. Deutsche Bank Trust Co.
...Demars v. Village of Sandalwood Lakes Homeowners Ass'n, 625 So.2d 1219, 1224 (Fla. 4th DCA 1993) (quoting Canzoniero v. Canzoniero, 305 So.2d 801, 803 (Fla. 4th DCA 1975)). The instant record shows that Deutsche Bank did not conduct a diligent search to acquire the Shepheards' address for p......