Gelkop v. Gelkop
| Decision Date | 20 May 1980 |
| Docket Number | 79-1495,Nos. 79-613,s. 79-613 |
| Citation | 384 So.2d 195 |
| Parties | Dov GELKOP, Appellant, v. Jacqueline Esther GELKOP, Appellee. |
| Court | Florida District Court of Appeals |
Weinstein & Bavly and Arthur J. Morburger, Miami, for appellant.
Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
Before HUBBART and SCHWARTZ, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
This is an appeal from (a) an order of the trial court denying a motion to vacate a final judgment of marriage dissolution under Fla.R.Civ.P. 1.540, and (b) a contempt order of the trial court which enforces the child support award of the final judgment. We have jurisdiction to entertain this appeal. Fla.R.App.P. 9.130(a)(4), (5).
We are confronted on this appeal with an attack on the jurisdiction of the trial court to enter the final judgment of marriage dissolution and to subsequently enforce this final judgment with an order of contempt. For the reasons which follow, we conclude that the trial court had jurisdiction to enter the final judgment of marriage dissolution in all respects except as to certain real and personal property, lump sum alimony, and loan payment provisions, which we have determined are void for lack of jurisdiction and proper due process notice to the husband. We further conclude that the trial court had no jurisdiction to enter the contempt order. We, accordingly, reverse the orders under appeal and remand for appropriate proceedings.
The facts of this case are as follows. On February 16, 1978, the wife Jacqueline Esther Gelkop filed a petition for dissolution of marriage against the husband Dov Gelkop in the Circuit Court for the Eleventh Judicial Circuit of Florida. The petition, which was sworn to, alleged that the wife had resided in Florida for over six months, that the parties were married to one another, that the marriage was irretrievably broken, that one child had been born of the marriage, and that the husband was not a member of the armed forces of the United States. The petition prayed that the trial court take jurisdiction of the subject matter and parties in the cause, dissolve the marriage, restore the wife's maiden name, award custody of the minor child to the wife, award temporary and permanent child support, court costs and attorneys fees to the wife, restrain the husband from threatening, harassing, annoying or communicating with the wife, and grant such other relief as may seem right and proper. No other factual allegations or prayers for relief are contained in the petition.
In a sworn affidavit attached to the petition, the wife stated that she had made a diligent search and inquiry to discover the residence of the husband and that his last known address was in Tel Aviv, Israel. A notice was subsequently published in the Jewish Floridian in Dade County, Florida, to the effect that the instant action for marriage dissolution had been filed. The clerk of the trial court in due course mailed both the petition and the notice to the husband at his Tel Aviv address. Neither the petition nor the notice of publication contained any description of any real or personal property that might be the subject of the instant marriage dissolution action. All agree that the husband was otherwise properly served with constructive process in this action pursuant to the applicable sections of Chapter 49, Florida Statutes (1979).
On March 24, 1978, the husband's Israeli counsel (Arie Molodic) who was not then and has never been admitted to practice law in Florida, sent a letter to the clerk of the circuit court which was later filed with the court. The letter contests in some detail the trial court's jurisdiction to proceed in the cause and generally denied the allegations of the petition.1 The wife thereafter moved to strike the letter on the ground that the letter was a legally deficient pleading noting that it had been filed by counsel who was not authorized to practice law in Florida. Upon proper notice and hearing, the trial court granted the motion to strike, gave the husband leave to file any proper and appropriate pleading within 20 days, and found that by virtue of the letter "jurisdiction is properly vested in this (c)ourt to determine all issues raised by the (p)etition (f)or (d)issolution filed herein." The husband did not appear personally or through counsel at this hearing and thereafter failedto file any pleadings in the cause.
On July 13, 1978, the trial court, upon proper notice, entered a final judgment of marriage dissolution after a final evidentiary hearing at which the husband did not appear. In the final judgment, the trial court ordered the marriage dissolved, upon a finding that the marriage was irretrievably broken, and restored the wife's maiden name. The final judgment also awarded the wife custody of the parties' minor child, established a visitation schedule for the husband, restrained the husband from removing the child or harassing the wife, required the husband to pay the wife child support in the amount of $250 a month until the child attained the age of eighteen, established a special equity for the wife in a certain apartment located in Israel (owned by the wife, the wife's mother, and the husband) and awarded 1/3 of the present fair market value of this apartment to the wife, ordered the husband to deliver to the wife a certain necklace which was located in Israel, ordered the husband to deliver to the wife a certain 1976 Peugeot automobile titled in the wife's name (or pay the wife the fair market value thereof), and imposed upon the husband an obligation to pay the remaining balance on a certain Jewish Agency loan. The final judgment further reserved jurisdiction as to certain other matters including attorneys fees and costs.
On November 2, 1978, the husband appeared through Florida counsel and moved the court to vacate the final judgment pursuant to Fla.R.Civ.P. 1.540 on the ground that the judgment was void for lack of jurisdiction. Attached to the motion were two affidavits, to wit: (a) an affidavit by the husband's Israeli counsel stating that he is a member of the Israeli Bar and represents the husband in pending divorce and child custody actions before an Israeli trial court, that he is not now nor has he ever been licensed to practice law in any American jurisdiction including Florida, and that he was never authorized by the husband to file a general appearance for the husband in the instant Florida marriage dissolution action, and (b) an affidavit by the director of the membership records department of the Florida Bar that the husband's Israeli counsel is not now and has never been a member of the Florida Bar. The trial court heard and denied the motion; the trial court, upon proper motion and hearing, also adjudicated the husband in contempt for failure to obey the child support provisions of the final judgment. The husband has taken an appeal from these two orders.
We have carefully considered the jurisdiction of the trial court to enter the final judgment of marriage dissolution and the subsequent order of contempt together with the established due process notice requirements which are essential to any constitutionally valid judgment or order. Initially, we note that a motion to vacate a final judgment lies under Fla.R.Civ.P. 1.540(b)(4) where the final judgment is void for lack of jurisdiction or proper due process notice, Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970); 7 Moore's Federal Practice § 60.25(2) (1979); Restatement of Judgments § 8 Comment c (1942); and that a contempt order is subject to reversal upon direct appeal therefrom where the trial court had no jurisdiction to enter it. Wood v. Wood, 276 So.2d 527 (Fla. 3d DCA 1973). In considering the jurisdictional and due process issues presented by this appeal, we discuss for convenience sake the various provisions of the final judgment and subsequent contempt order under four separate headings.
First, the final judgment of marriage dissolution dissolves the marriage between the parties, upon a finding that their marriage was irretrievably broken, and restores the wife's maiden name. The trial court clearly had in rem jurisdiction over the marriage to enter these provisions of the final judgment as the husband was properly served by constructive process in the original marriage dissolution action. Lahr v. Lahr, 337 So.2d 837 (Fla. 2d DCA 1976); § 49.011(4), Fla.Stat. (1979). Indeed, the husband concedes this issue both in his brief and on oral argument in this cause. As such, these provisions of the final judgment were validly entered.
The final judgment next awards custody of the parties' minor child to the wife, establishes a visitation schedule for the husband and restrains the husband from removing the child or harassing the wife. The husband contests the trial court's in rem jurisdiction to enter these child custody provisions based on the constructive service of process perfected herein because the marriage dissolution petition fails to allege that the child resided within the territorial jurisdiction of the court. We find no merit in this contention as the physical presence of the child within the territorial jurisdiction of the court, while desirable, is no longer a prerequisite to the court's jurisdiction to determine the child's custody. § 61.1308(3), Fla.Stat. (1979). The husband's reliance on Rich v. Rich, 214 So.2d 777 (Fla. 4th DCA 1968), for a contrary proposition is no longer good law. See also §§ 61.13(2)(b), 61.1302, Fla.Stat. (1979). As such, the child custody provisions of the final judgment were validly entered by the trial court as against the above attack.2
The final judgment next establishes a special equity for the wife in an apartment located in Israel (owned by the wife, the wife's mother, and the husband) and requires the payment to the wife of...
To continue reading
Request your trial
-
General Elec. Capital Corp. v. Advance Petroleum, Inc.
...domain. Fall; see, e.g., Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987); Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Berlanti Constr. Co. v. Republic of Cuba, 145 So.2d 256 (Fla. 3d DCA 1962), cert. denied, 152 So.2d 170 (Fla.1963). As a cons......
-
Szteinbaum v. Kaes Inversiones y Valores, C.A.
...by non-attorneys are, as will be seen infra, entirely distinguishable.It is arguable that this court's decision in Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980) (citing Nicholson and treating as a nullity response filed by a non-attorney on behalf of a defendant and thus permitting the......
-
Weatherhead Co. v. Coletti, 80-1217
...sought." McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976); see also, Gelkop v. Gelkop, 384 So.2d 195, 203 (Fla. 3d DCA 1980) (Schwartz, J., dissenting in part, specifically concurring in part); Kirshner v. Shernow, 367 So.2d 713 (Fla. 3d DCA 1979); Lawrence v. Lawrence, 130 So.2d......
-
Paleias v. Wang
...is so defective as to amount to no notice that a judgment is void, because then there is a denial of due process. Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980). Where notice is adequate, 6 defects in process or service of process are waived if not timely raised. Rule 1.140(b). See Schn......