Posted by Nydia Streets of Streets Law in Florida Florida family law procedure

What is a default in a Florida family law case? A default is entered “[w]hen a party against whom affirmative relief is sought has failed to plead or otherwise respond as provided by these rules or any applicable statute or any order of court.” Fla. Fam. L. R. P. 12.500(b). The consequence of a default is that the party against whom it has been entered admits all of the well-pled allegations of the petition. So for example, if the petition states “Wife has the ability to pay alimony” and a default is entered against the Wife, Wife technically admits that she has the ability to pay alimony. Can a default be cancelled? This was an issue in the case Wolf v. Peter M. Habashy, P.A., 4D22-3122 (Fla. 4th DCA May 24, 2023).

Although not a family law case, this matter involves a common issue concerning default. When a party against whom a default is entered wants to have it set aside, that party can file a motion to vacate it based on defenses such as excusable neglect. This case was filed by a dental practice seeking to hold the defendants responsible for a bounced check. A default was initially filed against the defendants, but it was set aside by the trial court after the defendants filed an answer with affirmative defenses. The defendants alleged they stopped payment on the check because of inferior dental work performed. A case management conference was held which the defendants’ lawyer failed to attend. Consequently, another default was entered and a default judgment was entered the next day.

Less than a week later, the defendants hired a new lawyer who filed a motion to vacate the second default. The motion included affidavits which explained the prior counsel was not made aware of the hearing, that he had a family medical issue, and that he was dealing with staff shortages combined with an accelerated case load. At a hearing on the motion, the dental practice did not refute the allegations made by the defendants, but argued that because this was the second default, it should not be set aside. The trial court agreed, citing the history of the case, and determined there was no excusable neglect shown, nor was a meritorious defense claimed. The defendants appealed.

The appellate court agreed with the defendants and reversed. It held “Appellants offered their affidavits and their prior counsel’s affidavit in support of their rule 1.540(b) motion. Appellee only offered argument, which is not evidence, to counter appellants’ otherwise uncontroverted claims. See Olson v. Olson, 260 So. 3d 367, 369 (Fla. 4th DCA 2018). Appellee pointed to the prior default as a reason that the trial court should deny this second default. However, the record does not show that appellants’ prior attorney, who had missed the case management conference, also was responsible for the original default. In fact, at the hearing, appellee’s attorney mentioned that appellants’ son, an attorney, was the one responsible for the original default, not the attorney who entered an appearance and filed the answer but subsequently failed to attend the case management conference. We conclude that excusable neglect has been shown.”

The court further held “While the trial court found no meritorious defense, we disagree. Appellee alleged a cause of action for a worthless check based on section 68.065, Florida Statutes (2021). Section 68.065 provides that that a party can bring an action for payment of a check under certain conditions and obtain triple damages of the amount owing ‘where the maker or drawer stops payment on the instrument with intent to defraud.’ § 68.065(3)(a), Fla. Stat. (2021) (emphasis added). ‘From the plain reading of the statute, therefore, the maker is liable only if payment has been stopped on a check with an intent to defraud, and the maker thereafter fails to pay the amount owing in cash within 30 days following a written demand.’ Maung v. National Stamping, LLC, 842 So. 2d 214, 216 (Fla. 3d DCA 2003). In this case, appellants offered affirmative defenses that demonstrated they lacked the intent to defraud. Their defenses assert that they did not owe the money for the services rendered, because the services were not what was bargained for or were negligently performed. Thus, appellants set forth a meritorious defense.”

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