Whigham v. Whigham

• Court: Florida District Court of Appeals
• Writing for the Court: COWART; COBB, C.J., and DAUKSCH
• Citation: Whigham v. Whigham, 464 So.2d 674, 10 Fla. L. Weekly 624 (Fla. App. 1985)
• Decision Date: 07 March 1985
• Docket Number: No. 84-408,84-408
• Parties: 10 Fla. L. Weekly 624 Travis Eugen WHIGHAM, Appellant, v. Bonnie Marie WHIGHAM, Appellee.

Page 674

464 So.2d 674

10 Fla. L. Weekly 624

Travis Eugen WHIGHAM, Appellant, v. Bonnie Marie WHIGHAM, Appellee.

No. 84-408.

District Court of Appeal of Florida Fifth District.

March 7, 1985.

Herbert H. Hall, Jr., and Eric S. Mashburn, Winter Garden, for appellant.

Michael H. Hatfield, Umatilla, for appellee.

COWART, Judge.

This case involves a defective service of process and a void judgment.

In 1976 appellee, as wife, filed an action for dissolution of marriage against appellant as husband. The complaint also sought child custody and alleged that the parties were joint owners of certain real and personal property, specifically describing it, and claimed that the plaintiff-wife and children needed exclusive possession of the property. The complaint also claimed that, in addition to her joint ownership interest, the wife was entitled to a special equity in the property. The complaint also prayed that the court award the wife, as lump-sum alimony, all of the husband's interest in the described property.

Substituted service of process was obtained by publication but the published notice of action required by section 49.08, Florida Statutes, did not set forth the description of the property described in the complaint and did not advise the defendant-husband that, in addition to a dissolution, the nature of the action was one in which the plaintiff-wife was seeking to have the husband's interest in the jointly owned property awarded to her. The defendant-husband did not appear or otherwise submit himself to the jurisdiction of the trial court in the dissolution action. A default was entered against the husband therein. The final judgment dissolved the marriage, awarded custody of the children to the wife and purported to award to the wife all of the husband's interest in the jointly owned property.

In 1979 the husband filed a pro se motion for relief from the final judgment alleging that the property aspects of the final judgment were void and also requesting that he be awarded legal custody of two minor children who were then in his actual custody. Notice of hearing on the motion was personally served on the wife. She did not personally appear at the hearing but she executed a written consent to a change of custody of the children which was filed. An order of modification was entered changing the custody of the minor children from the wife to the husband but the order did not act on the husband's claim that the final judgment was void as to the property adjudication.

In 1983 the husband filed a more formal motion attacking the jurisdiction of the court to enter a valid award of the husband's property rights to the wife in the dissolution action. The trial court denied relief and the husband appeals. We reverse.

In denying the motion to vacate the trial court found that the trial court in the dissolution action did not have jurisdiction to terminate the husband's property interest because of the defective service of process and found that the final judgment was void insofar as it attempted to terminate the husband's property rights. However, the trial court stated: "The judgment, nevertheless, transferred title of the property to the wife." The trial court then noted that the husband's motion to vacate was under Florida Rule of Civil Procedure 1.540(b) and that rule limited the filing of a motion to vacate a judgment as void to a "reasonable time." The trial judge then observed "this would seem to dictate that if the relief is not sought within 'a reasonable time' the void judgment then becomes valid." The trial court held that while the delay from 1976 to 1979 was not an unreasonable time the delay from 1979 until the filing of the more formal motion in 1983 was more than a reasonable time because in the meantime the wife had made improvements to the property relying upon the validity of the original final judgment.

Section 49.011(4), Florida Statutes, provides for constructive service of process in a dissolution action. Section 49.011(1), Florida Statutes, has a separate provision for an action to enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court.

The trial court had subject matter jurisdiction to adjudicate property rights between the parties in the dissolution action and that jurisdiction was properly invoked by the allegations in the dissolution complaint. However that jurisdiction was not perfected ¹ with regard to the adjudication of property rights because the service of process by publication was defective in that it did not contain a description of the property sought to be proceeded against as required by section 49.08(4), Florida Statutes, and did not give constitutional procedural due process notice that the husband's property rights were to be adjudicated in the dissolution action. See Nethery v. Nethery, 212 So.2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So.2d 288 (Fla. 3d DCA 1964), cert. denied, 166 So.2d 754 (Fla.1964); Webb v. Webb, 156 So.2d 698 (Fla. 3d DCA 1963).

Because the service of process was defective as to the husband's property rights, the trial court's jurisdiction to adjudicate those rights was not perfected. Because the trial court did not have jurisdiction to adjudicate the husband's property rights that portion of the final judgment awarding the husband's property rights to the wife was null and void. See generally, Annot., "Jurisdiction on Constructive or Substituted Service, in Divorce or Alimony Action, to Reach Property Within...