VIOLA K. BARRY, APPELLANT,
v.
GARL W. BARRY, APPELLEE
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PER CURIAM.
Appellant seeks review of an order denying a motion to vacate and set aside final judgment of dissolution of marriage for failure to give notice of final hearing.
Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we are of the opinion there was a gross abuse of discretion by the trial court in declining to vacate and set aside final judgment of dissolution of marriage under Rule 1.540, Fla.RCP, as it is clear that appellant did not receive notice of the final hearing.
Accordingly, the final judgment of dissolution of marriage is vacated and set aside, and the cause remanded for further proceedings.
Reversed and remanded.
CROSS and OWEN, JJ., concur. DOWNEY, J., concurs specially, with opinion.
DOWNEY, Judge
(specially concurring).
I concur in everything said in the majority opinion, but in addition on remand I would direct that appellee amend his counter petition if he claims a special equity in the jointly held property of the parties. As the pleadings are now cast there is no pleading basis for an adjudication of a special equity in said property.
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Zeigler v. Huston, 626 So. 2d 1046 (Fla. 4th DCA 1993)…1st DCA 1993) (default entered when party failed to appear at pretrial conference was error since party had no notice of application for default). See also Bloom v. Palmetto Fed. Sav. & Loan Ass’n, 477 So. 2d 48 (Fla. 4th DCA 1985); Barry v. Barry, 324 So. 2d 644 (Fla. 4th DCA 1976). Failure to give adequate notice and opportunity to be heard constitutes a violation of due process. See Wildwood Properties, Inc. v. Archer of Vero Beach, Inc., 621 So. 2d 691 (Fla. 4th DCA 1993). Since appellant was never sent…
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Canney v. Canney, 453 So. 2d 179 (Fla. 2d DCA 1984)…ife. This ground may be an adequate one on which to set aside a default and final judgment. See Okeechobee Insurance Agency, Inc. v. Barnett Bank, 434 So. 2d 334 (Fla. 4th DCA 1983); Ellis v. Ellis, 404 So. 2d 774 (Fla. 2d DCA 1981); Barry v. Barry, 324 So. 2d 644 (Fla. 4th DCA 1976). While we express no opinion on the merits of the wife’s motion, the trial judge foreclosed any consideration of the merits on this issue when he erroneously refused to hear it. Where a prior judge has entered an interlocutory o…
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Lanes v. Lanes, 454 So. 2d 782 (Fla. 4th DCA 1984)…circumstances, the wife sustained her burden of demonstrating a “mistake” as contemplated in Rule 1.540(b) and, thus, her entitlement to relief from judgment. The trial court abused its discretion in failing to grant that relief. See Barry v. Barry, 324 So. 2d 644 (Fla. 4th DCA 1976). Accordingly, the default and final judgment of dissolution are vacated and the cause is remanded for further proceedings. ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.…
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