IDA E. HOLLIE, APPELLANT,
v.
CLARENCE J. HOLLIE, APPELLEE
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In a divorce dissolution case, the Florida appellate court reversed the trial court's judgment because the trial judge improperly allowed the husband to amend his pleadings to assert a counterclaim for dissolution without proper notice or service to the wife, despite denying her motion for continuance due to a medical emergency.
The court reversed the judgment, finding error in both rulings. Although the court did not condone the late filing of the continuance motion or the failure to appear, the trial judge's denial of the continuance did not authorize the husband to assert affirmative relief without proper notice, service of the amended pleading, and opportunity for the wife to respond.
[1] A trial court errs by denying a motion for continuance when the moving party demonstrates an inability to attend a hearing due to hospitalization.
[2] A trial court errs by permitting a party to amend pleadings to assert a counterclaim for affirmative relief without notice, service of the amended pleading, or an opportu…
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Join FLexlaw to unlock all legal intelligence“the trial judge's denial of the motion for continuance furnished no basis upon which the husband could be permitted to assert a claim for affirmative relief without notice, service of the amended pleading upon the wife, or affording her an opportunity to respond”
Establishes the core holding that procedural defects by one party do not justify denying the other party notice and opportunity to respond to affirmative claims
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Join FLexlaw to unlock all legal intelligenceThe wife filed for dissolution of marriage with an alimony claim. The final hearing was scheduled for November 19, 1979. On November 16, the wife's at…
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PER CURIAM.
The appellant-wife appeals from a final judgment of dissolution of marriage, contending that it was error for the trial court to deny her motion for continuance of the final hearing, and it was further error to permit the appellee-husband to amend his answer at the hearing by asserting a counterclaim for dissolution. We find error and reverse.
The action was initiated by the wife’s complaint for dissolution of marriage, which included a claim for alimony. The husband’s attorney scheduled the matter for final hearing on November 19, 1979. On November 16, 1979, the wife’s attorney filed a motion for continuance and a motion to withdraw as attorney. The motion for continuance set forth that the wife was scheduled to be admitted to the hospital on November 19, and that it was impossible for her to attend the hearing. The motion to withdraw prepared by the wife’s Pensacola attorney was grounded in part upon the fact that venue of the case had been transferred to Walton County upon the husband’s motion; that he had attempted to locate another attorney for the wife but was unable to do so; that the wife had requested the attorney not to proceed with the divorce, and that she would be in touch with him later. The attorney’s motion also related that on October 9 he had advised the wife of the final hearing, but that the wife failed to contact him until November 14, at which time she told him that she could not attend the final hearing because she was scheduled to be admitted to the hospital.
Neither the wife nor the attorney appeared at the final hearing. At the hearing, the trial judge allowed the husband to amend his pleadings by counterclaiming for dissolution, and a final judgment of dissolution was granted, containing no provision concerning the alimony claims of the wife.
Although we do not condone the late filing of the motion for continuance, and the failure of the wife or her attorney to appear at the final hearing, the trial judge’s denial of the motion for continuance furnished no basis upon which the husband could be permitted to assert a claim for affirmative relief without notice, service of the amended pleading upon the wife, or affording her an opportunity to respond. Kitchens v. Kitchens, 162 So. 2d 539 (Fla. 3rd DCA 1964); Rule 1.080, Florida Rules of Civil Procedure. Rule 1.190(b), Florida Rules of Civil Procedure, relating to issues “tried by express or implied consent of the parties,”, and authorizing amendment of the pleadings “to conform to the evidence” cannot be applied to justify the procedure followed here.
REVERSED.
ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.
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Citator
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State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069 (Fla. 4th DCA 2001)…to a party who had suffered a default or decree pro confesso where the complaint has been amended in a matter of substance after the entry of such default. See 49 C.J.S. Judgments § 338, p. 688. Id. at 541. Another similar case is Hollie v. Hollie, 388 So. 2d 1389 (Fla. 1st DCA 1980), although that case did not involve a default. The wife filed a complaint for divorce which included a claim for alimony. The matter was scheduled for trial, but the wife’s attorney filed a motion to withdraw and a motion for con…
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Blanton v. Baltuskouis, 20 So. 3d 881 (Fla. 4th DCA 2009)…m, about which Blan-ton was not notified, cannot stand. See id. Turning next to whether Blanton’s failure to appear at trial constitutes his consent to the amendment, we hold that it does not and find support for our conclusion in Hollie v. Hollie, 388 So. 2d 1389 (Fla. 1st DCA 1980). In Hollie, which presents a similar procedural background, the First District Court held that a party’s failure to appear at trial furnishes no basis upon which to allow the opposing party to assert a claim for affirmative relie…
Authorities Cited
- Kitchens v. Kitchens, 162 So. 2d 539 (Fla. 3d DCA 1964)