McKelvey v. McKelvey
| Decision Date | 09 January 1976 |
| Docket Number | No. 75--239,75--239 |
| Citation | 323 So.2d 651 |
| Parties | Andrew J. McKELVEY, Appellant, v. Elaine McKELVEY, Appellee. |
| Court | Florida District Court of Appeals |
Sinclair, Louis & Siegel and Neil A. Shanzer, Hilton Carr, Jr., Miami, for appellant.
Richard P. Kenney, Miami, for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
Defendant, a non-resident, appeals that portion of a final judgment finding that the court had acquired jurisdiction over his person.
This rather bizarre case was inaugurated in October 1974 upon the filing of a complaint by Mrs. Elaine McKelvey, appellee herein, for a declaratory decree wherein she alleged that (1) she and the defendant, appellant herein, Andrew McKelvey, were husband and wife, but were living separately; (2) Andrew in August 1974 purchased a home in Dade County, Florida and took title in his name and that of Emily P. McKelvey, whose real name is Emily Craney; and (3) Emily was never Andrew's wife. Mrs. McKelvey prayed for a declaration that she was entitled to a dower interest in the house and other relief incidental thereto. The complaint also contained an allegation that Andrew had concealed himself from the service of process and was believed to be in California. Elaine McKelvey filed an affidavit in support of constructive service of process by publication and a motion pursuant to RCP 1.310 seeking to take the depositions of Mr. and Mrs. Rex Wallin prior to the expiration of 30 days after process to ascertain the whereabouts of Andrew. The trial court granted the motion and entered a temporary injunction enjoining and restraining Andrew from selling or in any way encumbering the subject house. The depositions were scheduled for October 15, 1974 and on that date attorney Dana P. Brigham, who allegedly was representing the deponents, filed a notice of taking the deposition of Elaine on October 21, 1974 and stated therein that deponents, the Wallins, desired to determine why they were being annoyed by having their depositions taken. Simultaneously, Mr. Brigham also filed a motion for protective order and alleged (1) the court was without jurisdiction over the deponents because the complaint fails to state a claim upon which relief can be granted, (2) the complaint should be denied for inconsistencies on its face, and (3) the complaint would be moot upon a lis pendens being filed by Elaine McKelvey. On October 25, 1974 a hearing was held on this motion of the deponents at which Mr. Brigham argued on behalf of the Wallins. The trial judge then entered his order denying the motion for protective order and finding that the deponents were not entitled to take the deposition of Elaine. On November 18, 1974 Elaine moved for entry of default judgment against Andrew as no pleadings of any kind had been filed as of the return date of November 11, 1974. 1 A copy of this motion was mailed to Mr. Brigham as attorney for Andrew. Mr. Brigham then filed, allegedly on behalf of the deponents Mr. and Mrs. Wallin, a motion to rehear their motion for protective order and to grant their motion to dismiss. This pleading was captioned as a motion to alter or amend judgment although the allegations thereof are silent with respect thereto. After oral argument of counsel, the trial court denied same.
In December 1974, Elaine moved to amend her complaint to seek as additional relief alimony unconnected with divorce pursuant to § 61.09, Fla.Stat., attorney's fees, and costs and in addition, to join as additional parties defendant, Telephone Marketing Programs, Inc. and G. H. & L., Inc., two corporation which maintain offices in Miami and in which Andrew is the principal or sole stockholder. Again, Elaine prayed that service by publication be effected upon Andrew. A notice of hearing on this motion was mailed to Mr. Brigham as attorney for Andrew. On December 17, 1974 Elaine's motion to amend came on for a hearing at which Mr. Brigham announced he was not there on behalf of any of the defendants, but rather to get permission to withdraw the court file for the purpose of copying all pleadings and documents. The motion to amend was granted and Mr. Brigham's request was denied. After several more hearings, the trial judge on January 16, 1975 entered his order finding the court had jurisdiction over the person of the defendant, Andrew J. McKelvey, and thereupon granted to Elaine McKelvey the relief prayed for in her amended complaint. Andrew appeals the jurisdiction portion of the January 16 order. We affirm.
Jurisdiction over a defendant is acquired either by service of process...
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