Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When a default is entered against a party in a Florida family law case, this might mean the party against whom the default has been entered will not be able to challenge certain findings made against him or her. A default has the effect of making it so that the party against whom default has been entered admits all of the well-pled allegations of the opposing party’s petition. So, for example, if a husband states in his petition that the wife has the ability to pay alimony, if a default is entered against the wife, she admits that she has the ability to pay alimony. Entry of a default was an issue in the case City of Miami v. Marcos, 3D22-1444 (Fla. 3d DCA September 13, 2023).

Although not a family law case, this matter involved an issue common in family law cases. When hearings are set and a judge orders the parties to appear with a warning that failure to appear could result in the striking of pleadings and/or entry of default, parties who do not appear run the risk of the stated sanctions. In this case, this type of order to appear was issued, and the attorney for the defendant failed to appear. As a result, the court entered an order of default against the defendant and struck its pleadings. The defendant moved to vacate the default, and after a hearing the motion was denied. The case proceeded to a jury trial at which the defendant was unable to refute liability because of the default, and the jury entered a verdict in favor of the plaintiff. The defendant appealed the final judgment as well as the default order.

The appellate court first noted the Florida Supreme Court case Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993) which states a six-factor test that a trial court must consider before striking a party’s pleadings as a sanction for attorney misconduct: “1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” The court noted that because findings regarding these factors are required, and evidentiary hearing is required.

The court concluded “Our record reflects that the trial court did not conduct an evidentiary hearing before entering the default order, and the default order does not make express findings as to the Kozel factors. We, therefore, reverse the default order, and the resulting final judgment, and remand for proceedings not inconsistent with this opinion.”

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