April 5, 2016

Third DCA Decides that Attorney’s Appearance Long After Court’s Order Did Not Waive Service of Process in Proceeding to Modify Timesharing and Support

Salinas v. Pascariello, Case No. 3D15-594 (Fla. 3d DCA, March 30, 2016)*

Under Florida law, valid service of process is a prerequisite to the exercise of personal jurisdiction over a defendant. The Florida Rules of Civil Procedure governing service of process require that a copy of the initial pleading be delivered to the party upon whom service is made. Fla.R.Civ.P. Rule 1.070(e). However, a party that appears in a case may sometimes be deemed to have waived service of process.

In an appeal arising from a family law matter, the Third District Court of Appeal recently ruled that a respondent did not waive service of process by the general appearance of his attorney long after the initial pleading had been served and the petition had been granted by the court.

The parties were divorced in 2010. In April of 2011, the former wife filed a petition for modification of timesharing and child support. The record showed that the summons to serve the former husband with the petition was issued when the former wife filed the petition. However, the former husband asserted that he was not served with the petition for modification and did not learn of it until June of 2014 when the former husband’s attorney entered a general notice of appearance in order to review the court file. Thus, the attorney discovered the modification proceeding while reviewing the file three years after the trial court had already granted the petition.

The former husband promptly filed a motion to quash service and to set aside the order granting the former wife’s petition for modification. The motion was based on the former husband’s assertion under oath that he was never served with the petition. The trial court did not hold a hearing on the former husband’s motion to quash service, nor did it rule on the merits of the motion to set aside the order. Instead, the trial court simply entered an order denying the motion, stating that the former husband’s attorney had filed a general appearance in June of 2014.

On appeal, the Third DCA made clear that the general appearance filed by the former husband’s attorney in 2014 could not constitute a waiver of objections to the trial court’s exercise of personal jurisdiction over the former husband. An after-the-fact general appearance would not excuse a failure to serve the former husband with the petition for modification, which had already been granted three years before. The appellate court explained that “whether Salinas’s counsel made a general appearance in 2014 has no bearing on whether Salinas was given reasonable notice and an opportunity to be heard with respect to the [former wife]’s modification petition” that had been filed and granted in 2011.

The Third DCA did not rule on the merits of the former husband’s motion to quash service and set aside the modification and obtain assorted other relief. The appellate decision only reversed the order that had denied the former husband’s motion on erroneous procedural grounds, and directed the trial court to hold a hearing to determine the merits of the former husband’s motion.

* The decision is not final until disposition of any timely filed motions for rehearing.