Florida Appeals Court Gives Wife New Chance to Prove that Both Her Husband and She Were New York Residents

When your spouse files a divorce action, it is almost never a good idea not to act upon that filing. In fact, it is almost always a good idea to retain counsel and begin addressing the matter as soon as you possibly can. In one case recently heard by the Second District Court of Appeal and ongoing in the Florida court system, a wife is still trying to get a Florida default divorce judgment overturned because, according to her, neither her husband nor she was ever a resident of Florida.

G.M. (husband) and N.M. (wife) got married in New York in 2000. They resided in New York at that time and remained in New York for several more years. As the marriage deteriorated, the husband filed for divorce, doing so in New York. The wife, as part of that case, petitioned the trial court for an award of spousal support. After the wife made the alimony request, the husband voluntarily dismissed his divorce petition. Shortly thereafter, the husband filed again, except this time, he filed in Pinellas County. Florida law, like the laws in other states, imposes certain residency requirements before its courts can assume jurisdiction over a case. In Florida, this means that one spouse must have been a Florida resident for at least six months. The husband in this case alleged that his wife met this requirement.

The wife in turn filed her own divorce petition in New York but did nothing in the Florida case. In Florida, you generally have 20 days to respond. After the deadline passed, the wife’s inaction led the husband to seek, and the court to award, a default judgment dissolving the couple’s marriage in September 2014. Two weeks later, the wife asked the Florida court to reverse the default judgment and order a rehearing of the case. The trial judge ruled against the wife.

Some time later, the wife tried again. This time, she argued that the judgment should be set aside because of the husband’s fraud, her “excusable neglect,” and the court’s lack of jurisdiction. In this request, the wife argued that, contrary to the husband’s assertions in his original Florida divorce filing, she was never a Florida resident as defined by Florida Statutes Section 61.021. The husband argued, and the trial court agreed, that the wife’s request was “successive,” meaning that it was really just an attempt to re-litigate the same issue as the one she presented in her original petition to set aside the default judgment, which is generally not allowed.

The wife appealed, and the appeals court sided with her. The rule regarding successive motions only applies if the matter has already been decided on the merits. In this case, the wife’s original motion to reverse the default judgment was turned down because it was “facially insufficient,” which means that it did not comply with the court’s procedural rules. The issues the wife raised had never been decided on the merits, so her second filing was not a successive motion. Additionally, a court can hear a successive motion if it is necessary to avoid injustice. In this case, the wife eventually came forward with evidence tending to support her assertions that neither of them had ever resided in Florida and that the husband used the couple’s Pinellas County vacation home and the wife’s Florida driver’s license to claim falsely that she resided in Pinellas County.

Florida law does allow spouses to use driver’s licenses to corroborate assertions regarding residency, but a Florida license by itself is not irrefutable proof of Florida residency. If the wife were to succeed in proving that neither her husband nor she was ever a Florida resident, that would mean that the divorce judgment issued by the trial court was void.

Any family law case in which you’re named as a defendant/respondent requires your immediate attention. Talk to an experienced Florida lawyer right away. The diligent South Florida family law attorneys at Sandy T. Fox, P.A. have the experience and the skill set to help you handle your Florida case, whether you live on the other side of town or the other side of the country. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Court Could Not Hear Child Support Case Against Swedish Father with Insufficient Ties to Florida, Fort Lauderdale Divorce Lawyer Blog, Dec. 3, 2015

Subject Matter Jurisdiction: An Essential Element To Your Broward Divorce, Fort Lauderdale Divorce Lawyer Blog, Oct. 13, 2010

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