Posted by Nydia Streets of Streets Law in Florida Domestic Violence
When a default is entered against a party in a Florida divorce case, what does this mean? Generally, it means the party who was defaulted did not answer the petition on time. The consequence is that the allegations in the petition are admitted, meaning the petitioner does not have to prove the allegations and they are taken as true. Application of this consequence is not so simple in family law cases. Child custody issues cannot be decided by default, for example.
In the case Schenavar v. Schenavar, 4D21-2811 (Fla. 4th DCA November 9, 2022), a petition for divorce was filed and the former wife failed to answer it so a default was entered against her. A hearing was held on the petition and the wife did not attend the hearing. The former husband testified that he did most of the child-rearing and that the former wife was detached. The trial court expressed doubt that the former wife was in good health and that her behaviors were voluntary. A judgment was entered by the court with limited findings. The former husband sought a re-hearing, and the former wife then moved to set aside the final judgment. She alleged she had given power of attorney to her sister due to her declining health. The trial court ultimately denied the former wife’s motion without a hearing, and denied in part the former husband’s motion without a hearing. Both parties appealed.
The appellate court found four errors in the final judgment: “First, the judgment fails to set forth the time-sharing schedule required by section 61.13(2)(b)2., Florida Statutes (2020). Second, the judgment fails to set child support consistent with section 61.30, Florida Statutes (2020). Third, the judgment failed to determine which party had the right to claim the federal income tax exemption for each of the minor children. See § 61.30(11)(a), Fla. Stat. (2020). Fourth, the final judgment failed to apportion the cost of health insurance and uncovered health-related expenses for the minor children. See § 61.13(1)(b), Fla. Stat. (2020).”
As to the former wife’s appeal, the court held “Regarding the wife’s cross-appeal, we reverse for the court to hold an evidentiary hearing on the wife’s motion to set aside the final judgment. The motion and attachments assert facts that are consistent with the trial court’s skepticism about the husband’s characterization of the wife’s mental and physical condition. Because the wife alleged a colorable entitlement to relief, the court should not have summarily denied her motion.”
Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.