Freeman v. Freeman
| Decision Date | 16 March 1984 |
| Docket Number | No. AQ-401,AQ-401 |
| Citation | 447 So.2d 963 |
| Parties | Stephen B. FREEMAN, Appellant, v. Glenda FREEMAN, Appellee. |
| Court | Florida District Court of Appeals |
Antony E. Fiorentino, Pensacola, for appellant.
William J. Manikas, Pensacola, for appellee.
This is an appeal from a final judgment dissolving Stephen Freeman's (Stephen) and Glenda Freeman's (Glenda) marriage pursuant to Chapter 61, Florida Statutes. Following Glenda's petition for dissolution, a default was entered against Stephen for failure to answer or take any other steps within the time allowed by law. Glenda and Stephen voluntarily executed an agreement in which the parties agreed that custody of Stephen's minor child from a previous marriage, Joseph L. Freeman (Joseph), should be given to Glenda, with Stephen providing monthly child support. Over four months later, the trial court entered its final judgment which incorporated, by reference, the parties' agreement. On the same day, but after the final judgment was filed with the clerk of the court, Stephen moved to set aside the default. Eight days later, Stephen moved to set aside the final judgment, arguing the trial court lacked subject matter jurisdiction over the custody of his child. After a hearing, both motions were denied.
Glenda's petition for dissolution, filed April 26, 1982, contains no factual allegation of any sort relating to Joseph. The prayer for relief requests support for "the Husband's minor child which she cares for, ..." but does not name the child nor make any reference to or request an award of custody of that child. The voluntarily executed agreement, signed on May 18, 1982, settled all financial and property issues between Glenda and Stephen, and in addition, made the following agreement concerning custody of Stephen's child:
The Husband has a child from a previous marriage, Joseph L. Freeman, d.o.b. January 4, 1975. The Husband recognizes that the best interests of the child will be served by permitting the Wife to retain custody of the minor child, and therefore, the Wife shall have the permanent care, custody and control of the Husband's son, Joseph L. Freeman, subject to the Husband's right of reasonable visitation upon reasonable notice....
On May 20, 1982, two days after the signing of the agreement, a motion for default judgment was filed and a default was entered by the clerk.
The written agreement was file marked by the clerk and placed in the court file on July 30, 1982. At the brief final hearing on September 8, 1982, of which the husband received no notice and did not attend, the following casual reference was made to the child and the parties' agreement concerning custody:
Q. Let me show you this agreement which has been filed with the Court on July 30th, 1982. Now is that the agreement you and your husband entered into?
A. Yes.
Q. And did your husband have a child prior to this marriage?
A. Yes.
Q. And was that Joseph L. Freeman whose date of birth was January 4th, 1975?
A. Yes.
Q. And have you raised that child since his birth?
A. Yes.
Q. And have you and your husband discussed the fact that you would have custody of this little boy and take care of him?
A. Yes, sir.
Q. And you've agreed on that?
A. Yes, we have.
MR. GRIFFITH: Judge, I would like to have this agreement marked as Petitioner's Exhibit Number One.
The court's final judgment, entered September 8, 1982, the same date as the first hearing, approved and incorporated the agreement by reference, and ordered the parties to comply with it. No other reference was made to the child, nor to the matter of custody. As can be seen from the foregoing, at no time was the trial court presented with any pleading stating any grounds for depriving the natural father of the right of custody of his child. A defendant against whom a default is entered admits only the well-pleaded facts and acquiesces only in the relief specifically prayed for. Williams v. Williams, 227 So.2d 746 (Fla. 2nd DCA 1969). The award of relief not sought by the pleadings is error. Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3rd DCA 1983). The jurisdiction of the court...
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