VICTORIA RODRIGUEZ
v.
ANGEL RODRIGUEZ, JR.

Fla. 3d DCA | 2024-08-21
No. 2023-1817
Helms, J., Scales, J., Miller, J., Bokor, J.
2024 FL 10274 Florida District Court of Appeal, Third District (2024)

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Holding

A default final judgment in a dissolution of marriage case is affirmed where the record is undeveloped, but without prejudice to the mother's ability to file a timely motion under Florida Family Law Rule of Procedure 12.540(b) to vacate the judgment and obtain an evidentiary hearing on her claim of lack of notice.

Headnotes

[1] Denial of due process in a family law proceeding constitutes fundamental error that may be raised for the first time on appeal, notwithstanding the general rule that proc…

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Key Quotes

“Contrary to the father's contention, the denial of due process constitutes fundamental error, which can be raised for the first time on appeal.”

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Facts & Procedural History

Victoria Rodriguez, the mother of a fourteen-year-old daughter, was entered into a default final judgment of dissolution of marriage that awarded sole…

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Topics
Sole Parental Responsibility Child Support Obligation Dissolution Of Marriage

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Opinion of the Court
Bokor

Third District Court of Appeal State of Florida

Opinion filed August 21, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1817 Lower Tribunal No. 19-1033-K ________________

Victoria Rodriguez, Appellant,

vs.

Angel Rodriguez, Jr., Appellee.

An appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge.

Victoria Rodriguez, in proper person.

Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellee.

Before SCALES, MILLER, and BOKOR, JJ.

MILLER, J.

Footnotes
2 Appellant, the mother, challenges a default final judgment of dissolution of marriage awarding appellee, the father, sole parental responsibility for their fourteen-year-old daughter and ordering the payment of child support. Contrary to the father’s contention, the denial of due process constitutes fundamental error, which can be raised for the first time on appeal. See Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014). Nonetheless, in this case, the undeveloped record compels affirmance. We do so, however, without prejudice to the mother’s ability to file a timely and appropriate motion pursuant to Florida Family Law Rule of Procedure 12.540(b) in the lower tribunal seeking to vacate the final order and convene an evidentiary hearing on her claim that she did not receive notice. See Vasquez v. Nadra, 337 So. 3d 403, 404 (Fla. 3d DCA 2021) (affirming denial of 1.540(b) motion without prejudice to timely filing of “an appropriate rule 1.540(b)(4) motion to allow the trial court, in the first instance, to address her voidness claim”); see also Fla. Fam. L. R. P. 12.440(c) (“[T]he court . . . shall enter an order setting the action for trial, fixing a date for trial, and setting a pretrial conference, if necessary. In the event a default has been entered, reasonable notice of not less than 10 days shall be given unless otherwise required by law.”). Affirmed, without prejudice.

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