Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
How is a Florida family law case started? After a petition is filed, it usually needs to be delivered to the other party by a process server. Once this delivery occurs, the case is usually considered “initiated”. Other documents besides the petition may need to be delivered to the other party by the process server in order to validate the delivery. This was an issue in the case Oliveira v. Sims, 3D21-1255 (Fla. 3d DCA February 9, 2022).
In this paternity case, a clerk’s default was entered against the mother because she did not respond to the petition within 20 days of being served. The mother moved to set aside the default and to quash service, alleging she did not receive a summons with the petition. When orders were entered by the trial court denying these motions, the mother appealed.
The appellate court first noted it had no jurisdiction to consider the default because under Florida law, clerk’s defaults are not independently appealable. However, because no summons was issued with the father’s petition, the appellate court reversed the denial of the mother’s motion to quash service. It held “Because no summons was issued, however, let alone served upon the mother, we are constrained to reverse the order denying the motion to quash. See Fla. Fam. L. R. P. 12.070(a)(1) [. . .] Ingenieria Y Exportacion De Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 213 (Fla. 3d DCA 2016) (‘Because no summons was ever served on . . . the foreign defendant in this case, [the plaintiff] failed to comply with Florida’s service requirements.’); State ex rel. Merritt v. Heffernan, 195 So. 145, 147 (Fla. 1940) (‘[T]he real purpose of the service of summons ad respondendum is to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy . . . .’) [. . .]”
Following court procedure is important in your Florida family law case. Schedule a consultation with a Miami paternity lawyer to decide the next steps in your case.