Practice & Procedure Flashcards
1
Q
When can the court consider parole evidence.
A
A trial court must hear parole evidence to properly interpret the writing when a contract contains a latent ambiguity. A latent ambiguity exists where a contract’s language is understandable but fails to specify the parties’ rights or duties.
2
Q
What is subject matter jurisdiction?
A
The Court’s authority to hear a particular type of case. It cannot be waived, acquiesced or agreed upon.
3
Q
What is personal jurisdiction?
A
The Court’s authority over the individuals or entities involved in the legal case. It can be agreed upon and waived.
4
Q
How is subject matter jurisdiction conferred upon a court?
A
By constitution or statute.
5
Q
How does family court have subject matter jurisdiction over a dissolution of marriage action?
A
By statute - 61.021, which requires that one party must have lived in FL 6 months prior to filing but don’t forget the court cannot act if it does not have personal jurisdiction over the respondent.
6
Q
Who has the burden of proving that the court has subject matter jurisdiction to hear a dissolution of marriage action?
A
The petitioning party has the burden to provide either they have met the 6 month requirement of the other party has been a resident of the state of Florida 6 months prior to the filing of the petition for dissolution of marriage.
7
Q
What date is used for purposes of establishing residency for subject matter jurisdiction?
A
Date of filing.
8
Q
What is the definition of a residence within the meaning on 61.021?
A
An actual physical presence in Florida coupled with an intent to remain here indefinitely
9
Q
Must a party be physically present in the State of FL for 6 months to establish residency?
A
No, party can travel. Even if presence is de minimus, a court can assume jurisdiction if a party’s affairs and interests remained in FL, creating presence and requisite objective intent to be a Florida resident.
10
Q
What are signs or indicators of residency?
A
“Very Active People Find Living Related Records, Recording Homes Daily Together.”
1. Voter registration
2. Auto tag registration
3. Place of employment
4. Filed Statement of Domicile
5. Location of Real Property Owned
6. Record of Utility Payments
7. Residence of minor child
8. Homestead exemption filed
9. Family Home maintained
10. Driver’s License Address
11. Telephone
11
Q
Can both parties testify as to residency requirement to satisfy burden?
A
No - it must be corroborated.
12
Q
What else is needed to meet burden of residency besides testimony?
A
It must be corroborated by valid FL DL, FL voter card, valid FL ID or testimony of a 3rd party.
13
Q
Can residency be established by agreement of the parties?
A
No - it can never be assumed. SMJ CANNOT BE WAIVED, ACQUIESED OR AGREED UPON!
14
Q
What is the distinction between residence and domicile?
A
A person can only have one domicile where as they can have several residences - Court must determine in FL is “THE CHEIF SEAT OF THE PARTY’S HOUSEHOLD AFFIARS OR HOME INTERESTS”
15
Q
Are military spouses deemed FL residences while living here?
A
Presumed residents under 47.081 “Any person in any branch of the Armed Forces of the United States, and the husband or the wife of any such person, if he or she is living within the borders of the state, shall be prima facie a resident of the state for the purpose of maintaining any action.”
A military spouse who was a FL resident before entering military who never established a permanent resident elsewhere continues to be FL resident
16
Q
Can a foreign citizen without permanent residency status satisfy 61.021 in order to file DOM in FL
A
Yes - so long a they are present in FL with the requisite intent - even if they are subject to deportation
17
Q
What happens to a foreigners residency status if they are deported?
A
They lose their domicile at that point
18
Q
What happens to FJ and Orders that are entered without SMJ
A
VOID AB INITIO (from the beginning)
19
Q
What is the impact of death of a spouse?
A
It terminates the marriage by operation of law.
20
Q
What types of divorces can COUNTY courts hear?
A
Simplified DOM or final hearing in an uncontested DOM.
21
Q
Does court have SMJ to enter a FJ if at final hearing court issues oral ruling but one spouse dies before it’s reduced to a writing?
A
No.
22
Q
What happens if a party dies before the entry of the FJ?
A
The Court loses SMJ to enter the FJ, but retains jurisdiction over the child.
23
Q
How could a court retain SMJ even in the event of death?
A
If matter was bifurcated and and a FJ is signed dissolving marriage but reserving jurisdiction as to the rest. Then, court has continued SMJ even upon death of spouse.
24
Q
HYPO:
FJ dissolving marriage is entered, but a motion for rehearing is filed on collateral issue, not the dissolution itself. One spouse dies. What should happen?
A
It can be completed since the appeal concerned collateral issues not issues at to the DOM itself.
25
Does court retain SMJ to address motion for attorney's fees and cost in the event of death of spouse?
Yes, so long as the motion was filed prior to the death of the spouse.
26
A party obtains a default final judgment and the other party files a Motion to Set Aside based on excusable neglect before the party who obtained the default judgment dies. Does the court have SMJ?
The court may set aside the final judgment and determine the issues as if the parties were living.
27
when should could consider bifurcation
Under exceptional circumstances when it's for best interest of parties or their children
28
What is considered an exceptional circumstance for purposes of a bifurcation?
Impending death or terminal illness of a party
29
When is the court's SMJ terminated in a DOM?
Upon entry of a FJ UNLESS COURT RETAINS JUR TO ENFORCE OR OTHERWISE ALLOWED BY STATUTE
30
Once the court's SMJ is terminated because case has concluded, does the court retain jurisdiction to enforce?
Yes or as otherwise allowed by statute (i.e., 61.14 provides CT with JX to modify alimony)
31
Does court have to specifically reserve JX to modify amounts or duration?
No - court's have JX per 61.14
32
What happens to attorney fees if not included in FJ
FJ MUST RESERVE JUR ON FEES IF TO BE DETERMINED AT A LATER DATE - EVEN IF PARTIES STIPULATED THAT COURT SHOULD RETAIN JUR
33
Can court amend a FJ to include reservation for fees?
No, it does not have JX to do so.
34
What is the burden of proof to prove SMJ in a DOM
The standard of evidence to establish residency and therefore subject matter jurisdiction in a dissolution suit is clear and convincing, rather than merely a preponderance.
35
What is the standard of review on appeal for a MTD for lack of residency
Abuse of discretion.
36
Who must court have personal jurisdiction over in order to grant divorce?
SMJ and personal JX over petitioner - if it doesn't have personal JX over Respondent, it can grant divorce but not deal with rest of the collateral issues.
37
Will a prior dissolution action in a prior state of residency interfere with the Florida courts jurisdiction if the residency requirement is satisfied?
No
38
Does a military person or their spouse necessarily have to meet residency requirement
Section 47.081, Florida Statutes, provides that any person serving the military as well as the spouse of such person is presumed to be a Florida resident for the purpose of maintaining any action if he or she is living in Florida. Further, Florida courts have recognized an exception to the statutory residency demand as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-month statutory period prior to the filing of their petitions of dissolution,
BUT
While requirement of physical or actual presence in the state is excused under these circumstances, concurrent intent to be a permanent Florida resident remains an element of the residency for military service members
39
Can a foreign refugee meet residency requirements
Foreign refugees may also be considered Florida residents for jurisdictional purposes under section 61.021.
40
Can a foreign refugee meet residency requirements if they under an order for deportation?
Yes- residency is only lost upon the actual deportation.
41
If a trial court gives an oral ruling at final hearing and then a spouse dies before entry of FJ - what happens?
Court loses SBJ - court cannot issue order nunc pro tunc back to date before spouse died
HOWEVER
where a trial court orally pronounces its findings on a motion for rehearing and a spouse dies before the court's order is reduced to writing, the trial court may reduce its order to writing nunc pro tunc to the date the oral pronouncements were made.
42
Can trial court address a deceased spouse's request for pre-death attorney's fees under section 61.16?
Yes.
43
What happens if spouse dies after entry of FJ but before time lapses for mtn for rehearing?
The dissolution decree is NOT voided and the trial court is not divested of jurisdiction to decide any remaining issues between the parties.
44
What is the general rule where a spouse dies after entry of a final judgment but during a pending appeal
the general rule is that the appeal must be dismissed except where the divorce decree affects the parties' property rights. SO
In the event of a reversal of a divorce decree, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or the like, in the estate of the other, the same as if no divorce has ever been had
45
The trial court's jurisdiction was reserved for the specific and limited purpose of assisting a sale of the parties' Maryland property. Nonetheless, the trial court required the former wife to sign a rental listing agreement when the property still had not sold. FW appeals. What happens?
Reversed - court did not specifically reserve jurisdiction to adjudicate the issue to order rental deal absent sale.
46
Can the court reserve JX on issues presented to court unless parties agree?
NOPE - an issue is properly pled, and the issue is ripe for determination at the time of the final hearing, the trial court cannot reserve jurisdiction on the issue
47
When is it proper for the court to reserve jurisdiction on alimony?
There must presently appear in the record foreseeable circumstances to take place in the future as would at that time support an award of alimony
48
what should lawyer do if court mistakenly fails to include reservation of jurisdiction on fees
File a motion for relief from judgment pursuant to Florida Family Law Rule of Procedure 12.540(b)(1)-- may provide relief because it does not have SMJ to amend the FJ at that point.
49
Is the court required to reserve jurisdiction to enforce?
It is axiomatic that a trial court always has the inherent jurisdiction to enforce its previously entered orders enforcement is distinct from determining or modifying
50
What is one subject court does not have to expressly reserve jx to modify?
Children's issues
51
How is SMJ determined over child custody matters?
UCCJEA
52
What is child custody determination within meaning of chapter 61?
Legal custody, physical custody, residential care, or visitation with respect to a child and do not include child support or other monetary obligation of an individual.
53
what is the critical issue in deciding if FL has jx over child
Whether FL is the child's home state under the UCCJEA.
54
How do we define a child's home state?
The state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.
If the child is younger than 6 months of age, home state is defined to mean the state in which the child lived from birth with any of the persons mentioned above
55
When can a court exercise jurisdiction over a child when it is not child's home state?
Regardless of a child's home state, a court of any other state may exercise temporary emergency jurisdiction over a child who is present in that state if necessary to protect the child.
56
Does court need personal jurisdiction over an out of state parent to make a child custody determination?
Trial court's finding that it never obtained personal jurisdiction over a party will not render the custody provision in a final judgment void.
However, lack of personal jurisdiction over a party will render void a child support determination, even if the support determination was made in connection with a custody request under the UCCJEA. This is because determinations under the UCCJEA, by express definition, do not include decisions relating to child support or any other monetary obligation.
57
What does UIFSA provide in context of custody determination?
The statutory basis for establishing subject matter jurisdiction over foreign child support orders and applies to all proceedings for support or for modification of support orders, or proceedings for determination of parentage, commenced on or after July 1, 1997.
58
What is the purpose behind the creation of UCCJEA?
1. Avoid jurisdiction conflict so kids aren't dragged state to state.
2. Discourage interstate controversies
3. Promote courts to cooperate so child custody is resolved in right state
4. Deter abductions
5. Facilitate enforcement
6. Avoid relitigating
7. Promote communication between states
8. Uniformity
59
What is the definition of a person acting as a parent under UCCJEA?
Any person who is not the parent that
(a) has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and
(b) has been awarded a child-custody determination by a court or claims a right to a child-custody determination under the laws of this state.
60
What governs SMJ for paternity actions?
F.S. 742.011 -Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise. After the birth of the child, a parent may request a determination of parental responsibility and child support and for the creation of a parenting plan and time-sharing schedule pursuant to chapter 61.
61
Do ALL paternity determinations have to comply with UCCJEA?
NO - paternity actions that include requests for child support and other monetary relief, but DO NOT raise custody issues, will not be subject to the subject matter jurisdictional requirements of the UCCJEA
In Nissen v. Cortez Moreno, Florida trial court found that it had subject matter jurisdiction over the father's paternity action since the parties agreed that the mother shall retain custody of the minor child and no request for timesharing or visitation. Court was only dealing with child support and other monetary relief.
62
What type of jurisdiction does conceiving a child in FL triggers what?
Personal jurisdiction, NOT subject matter jurisdiction.
63
What does UIFSA govern?
Uniform Interstate Family Support Act
It governs enforcement and modification of support and child support orders issued in another state.
64
What is the purpose of UIFSA
It's established in all 50 states and creates a national regime in which only one single support order is effective any given time.
65
Can Florida modify a foreign spousal support order
No, UIFSA says it can ONLY ENFORCE AND NOT MODIFY a spousal support order issued by a tribunal of another state or foreign country having continuing, exclusive jurisdiction over that order.
66
When CAN FL modify a foreign child support order
if all of the parties who are individuals reside in this state and the child does not reside in the issuing state
67
When will a court decline to domesticate a foreign order?
If a provision isn't "support"
68
What are the 4 recognized writs that deal with family
1. Mandamus
2. Certiorari
3. Prohibition
4. Quo warranto
69
What are four characteristics of review of certiorari?
First, certiorari is available only where there is no adequate remedy at law.
Second, certiorari is entirely discretionary with the court, as opposed to an appeal which is taken as a matter of right.
Third, the scope of review by certiorari is traditionally limited and much narrower than the scope of review on appeal. On appeal, all errors below may be corrected, and judgments below may be modified, reversed, remanded with directions, or affirmed. Conversely, certiorari review is limited to an inherent illegality or irregularity, an abuse of judicial power, [or] an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice
Finally, certiorari will only lie to review judicial or quasi-judicial action, never purely legislative action, in contradistinction to review by appeal which is provided by law and by which the legislature can authorize review of a wider scope
70
What's an example of appropriate certiorari review?
An erroneous order for genetic testing because it cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed.
ALSO
order finding that a foreign court, rather than a Florida court, had subject matter jurisdiction under the UCCJEA over a child custody matter was the proper subject of certiorari review.
ALSO
ordering a non-party to produce documents
71
When is a writ of prohibition proper remedy?
When it is necessary to prohibit the court from exceeding its jurisdiction or usurping the jurisdiction over matters not within its jurisdiction
72
What's an example of when a court will issue writ of prohibition?
A writ of prohibition may be brought to prohibit a circuit court from further proceeding in a child custody action where subject matter jurisdiction is lacking under the UCCJEA.
Another example of a proper request for a writ of prohibition is where a court denied, as legally insufficient, an initial motion for disqualification of the trial judge
73
What is mandamus?
Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law. The officials' legal duty must be ministerial in nature and not discretionary
74
What must a party petitioning for a writ of mandamus establish?
Must establish a clear legal right to performance of the act requested, an indisputable legal duty, and no adequate remedy at law
75
What is the procedure for writ of mandamus per family law rules of procedure?
A petition for writ of mandamus must contain the facts on which the plaintiff relies for relief, a request for the relief sought, and, if desired, argument in support of the petition with citations of authority. Further, if the complaint shows a prima facie case for relief, the court shall issue an alternative writ of mandamus. Once an alternative writ has issued, the burden is on the respondent to come forth with facts upon which it refused to perform its legal duty.
76
What is an example of when a writ of mandamus is appropriate?
Prisoner sought writ of mandamus ordering assistant public defender to disclose docs relative to conviction - trial court should have issued the writ since prisoner entitled to same by law
77
What is a writ of quo warranto?
Proper remedy for asserting a challenge to a public official's right to hold office; to contest the authority of a public officer to take certain actions in an official capacity.
78
What are the three types of jurisdiction a court may have over a person?
1. quasi in rem
2. in rem
3. in personam
79
When does court have in personam jurisdiction?
Over persons within its territory
80
When does court have in rem jurisdiction?
Things within its territory
81
What is quasi in rem jurisdiction?
A claim for money damages where court has no personal jurisdiction over defendant but has jurisdiction over a thing belonging to the defendant
82
In order to proceed with action, what is necessary in order for court to have quasi in rem jurisdiction?
Quasi in rem jurisdiction can be obtained when a defendant is served by constructive service if there is property within the jurisdiction of the Court
83
In order for the court to exercise quasi in rem jurisdiction, what is necessary to satisfy the notice requirement?
Both the notice of action and the petition for DOM which must specify that the action is directed against the property itself and describe the property specifically
84
What is in rem jurisdiction?
An action which seeks to affect interests of persona in a specific THING (foreclose, quite title, partition, divorce)
85
What is needed in order for court to have in rem jurisdiction?
There must be property located within FL and constructive service is used which identifies the property in FL
86
In a DOM if the court has in rem jurisdiction based on constructive service but it doesn't have personal jurisdiction over the respondent what are its limitations in the DOM?
It cannot award support, alimony, and attorney's fees HOWEVER some districts say court can award support, alimony and fees it just cannot determine the amount or order payment since the award is limited to property in jurisdiction - therefore, later attempts to enforce must be made against R's property located within court's jurisdiction.
87
What can FL court do if it has quasi in rem and in rem jurisdiction in DOM
Court may dissolve the parties' marriage, dispose of the real property at issue in Florida, and award child custody if there is jurisdiction under the UCCJEA; that trial court may not, however, award child support, alimony, or attorney's fees.
88
How can a nonresident submit themselves to personal jurisdiction in FL via long arm statute?
Nonresident or his agent:
1. Does business in FL
2. Commit a tort in FL
3. Contracting to insure a person, property, or risk located within this state at the time of contracting
4. With respect to a DOM action, Respondent lived in FL before action filed whether living with spouse or not (still need to satisfy residence requirement for SBJ)
5. Causing injury to persons or property in FL by an act or omission by Respondent IF
-Respondent engaged in solicitation or service activities within this state; or
-Products, materials, or things processed, serviced, or manufactured by the Respondent anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
6. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state
7. With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.
8. Enters into K with choice of law provision
OR
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
88
What is personal jurisdiction?
The court's jurisdiction over a person.
88
How can in personam jurisdiction be acquired?
1. Being a FL residence
2. Consenting
3. Long arm statute
4. Personally served in FL but it cannot be obtained by fraud or trick, and not to appear in court on an unrelated matter
5. Substitute service in FL (someone other than R at their home who is 15 or older)
88
What is the 2 prong test to determine if a party sufficiently plead in personam jurisdiction under long arm statute?
1. The complaint must allege sufficient facts as to bring the action within the reach of the long-arm statute
2. If the complaint does allege sufficient facts, the defendant must have sufficient minimum contacts with the state to satisfy constitutional due process requirements
88
What are the two primary ways in which long arm statute is used to obtain personal jurisdiction in a family law action?
(1) Respondent lived in FL before action filed whether living with spouse or not (still need to satisfy residence requirement for SBJ)
(2) With respect to a proceeding for paternity, engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived
88
To prove that FL was the parties' matrimonial domicile for purposes of personal jurisdiction via long arm, what must be proven?
That the parties lived in FL "proximately preceding" the commencement of the action.
89
The parties lived together as husband and wife in FL but husband moved throughout the marriage due to his job and only visited Florida for 2 weeks each year for Christmas. Can FL assert personal jurisdiction over the Husband in a DOM action?
Yes, Florida was the matrimonial domicile as it was the only state H and W lived actually and constructively.
90
What type of analysis must the Court engage in to determine if the parties' matrimonial domicile was FL proximately preceding the action?
Court must examine the "totality of the circumstances" to determine if the parties maintained a matrimonial domicile in FL at the time the action commenced.
91
Is personal jurisdiction over an out of state parent necessary to initiate a custody action?
No - all that is needed for a custody action is subject matter jurisdiction.
92
Can owning real property in FL confer personal jurisdiction?
YES but only with respect to partition of that property per DOM it does not confer personal jurisdiction to address alimony and equitable distribution.
93
Parties entered into MSA in NY and H has to pay W alimony. W moves to FL and H stops paying. Can FL obtain personal jurisdiction over H to enforce failure to pay ?
No - failure to make a contractual payment due in NY doesn't impliedly mean H consented to personal jurisdiction in another state.
94
Procedurally, how can a party contest personal jurisdiction.
Must object in responsive pleading of by filing a motion to dismiss.
95
Does Respondent waive objection to personal jurisdiction if he files a responsive pleading attacking personal jurisdiction but also requests affirmative relief such as DNA test?
Yes - cannot seek affirmative relief. Can only take defensive measures:
-request fees for asserting defense against personal jurisdiction
-RFP related to personal jurisdiction.
-Can answer petition and raise defense
-Can make limited appearance for TS without waiving obj to personal jurisdiction for financial issues
96
Father admits to paternity in open court - does this submit him to personal jurisdiction of that court?
Yes!
97
If a settlement agreement states that is may be incorporated into a judgment of any court of competent jurisdiction, is that sufficient to obtain personal jurisdiction over H who has no contacts with FL?
Yes
98
When can a third party in an action be added to an action?
When they can demonstrate that they have a material interest in property rights which may be affected by adjudication.
99
When should a corporation be joined to a DOM?
Joinder is proper where a party's intimacy with the corporation makes the other party's actions against them inextricably intertwined.
"When party is the alter ego of the corporation and the business and personal matters are inextricably intertwined"
100
When can a court appoint a receiver or an attorney for a corporation?
Only if the corporation is joined as a party to the action.
101
Can an irrevocable trust by added as a 3rd party to DOM
No
102
What is the general rule concerning grandparents having standing in child custody dispute
Generally, grandparents do not have standing to request visitation with or custody over their grandchildren absent an emergency or unfitness of the parents
103
When can an extended family member seek temporary or concurrent custody of a child?
If temporary custody is being requested, the petition must include statements regarding either the consent of the child's parents, or the specific acts or omissions of the parents which demonstrate that the parents have abused, abandoned, or neglected the child
104
Must FL give full faith and credit to a foreign order giving grandparent visitation
Yes but it can subsequently be modified under FL law since it's unconstitutional.
105
Can a FJ based on constructive service of process validly dispose of issues related to parties' property in FL?
Yes, so long as the issues were properly raised in the action and the court had jurisdiction to hear it.
Constructive service by publication must describe in the petition the property and the notice the property to be disposed of.
106
What must be plead in a partition action?
1. Name & residence of all persons interested in the property
2. Quantity of interest held by each spouse
3. Whether the property is divisible
THE PETITION & NOTICE OF CONSTRUCTIVE SERVICE MUST INCLUDE INFO IN ORDER FOR COURT TO HAVE PERSONAL JUR TO DISPOSE OF PROPERTY
107
Can court order partition of jointly held real property in DOM if neither party plead for it?
No
108
In an action for separate maintenance, can the court address property issues?
No BUT it may award one spouse exclusive use and possession of marital residence if it is jointly owned by parties and the order doesn't affect title to property
109
When will a court consider a biological father's standing in face of a child born in wedlock when H objects?
A biological father has standing to rebut the presumption of legitimacy when he has manifested a substantial and continuing concern for the welfare of the child.
The presumption is overcome when there is a clear and compelling reason based primarily on the child's best interests. Perkins v. Simmonds
110
What is the appellate standard of review for whether putative father has standing the challenge paternity?
De novo since it's a question of law
111
What must the court do if it's going to order genetic testing for a putative father of a child otherwise born legitimately during intact marriage
The trial court is required to hear argument of the parties, including legal father, if he wishes to appear and to appoint a GAL on behalf of the child. Privette.
112
What is the burden of the party seeking DNA test to overcome presumption of legitimacy?
(i) the complaint is apparently accurate factually, is brought in good faith, and is likely to be supported by reliable evidence, and
(ii) the child's best interests will be better served even if the blood test later proves the child's factual illegitimacy.
113
What is service of process?
The delivery or other communication of a summons and the complaint - this gives the court jurisdiction to adjudicate the matters in controversy.
114
What is the difference between process and service?
Process is the summons and the complaint
Service is the delivery of same
115
What must a summons in family action include?
Summons shall specifically contain the following language: WARNING: Rule 12.285, Florida Family Law Rules of Procedure, requires certain automatic disclosure of documents and information. Failure to comply can result in sanctions, including dismissal or striking of pleadings.
Fla. Fam. L.R.P. 12.070(b).
116
What are the different ways in which service of process can be made?
Personal service, substitute service, constructive service, or waiver of formal service by other party
117
Who can effectuate service?
An officer authorized by law to serve process
or
The court may appoint any competent person not interested in the action to serve the process but they have to file an affidavit when person is served
118
Are employers required to accept service of an employee?
Yes, in a designated private area.
119
In a DOM action when can service be made on Sunday?
If the person requesting service or execution signs an affidavit stating that a good reason exists to believe that the person to be served intends to escape from this state under protection of Sunday. In such cases, the trial court may issue an order authorizing service or execution on Sunday, and same will be valid as if it had been done on any other day.
120
What is the general time limit to effectuate service?
120 days after filing of the initial pleading directed to that defendant.
121
When can the 120 days to effectuate service be extended?
If this deadline is not met and good cause or excusable neglect for the failure is shown, the court shall extend the time for service for an appropriate period
122
What may court do if service not effectuated in 120 days and there is no excusable neglect
The court, on its own initiative after notice or on motion, retains discretion to:
(i) extend the period for service;
(ii) dismiss the action without prejudice; or
(iii) drop that defendant as a party's. Note that an order denying a motion to dismiss which is based on untimely service is not an order which determines jurisdiction of the person and therefore is not an order which is directly appealable.
123
If a party files a MTD based on untimely service, can they appeal that order?
No - it doesn't fall within appealable nonfinal orders under 9.130 because the order does not determine jurisdiction over the person.
124
How is service made on a corporation (domestic or foreign)?
1. President or VP
2. Cashier, treasurer or secretary or GM
3. any director
4. officer or business agent residing in the state
5. if foreign corp with non of above, then any agent in state transacting business for it in state
6. OR as an alternative to all the above - Registered agent
7. if no RA, then any employee at principal place of business
125
How is service made on a dissolved corporation?
On any one of the officers
126
How is service generally made?
Deliver summons and complaint to person's usual place of abode OR anyone who lives there who is 15 or older and informing person of contents
127
How can service be made on married minors?
Directly - as they are served as adults.
128
How can service be made on un married minors??
Serve a parent, legal guardian or GAL
129
How is service made on a state prisoner?
Must be served in prison
130
How is service perfected on a non-resident and what is the effect if done in FL?
They are served within FL when they are here voluntarily - this will confer PERSONAL JURISDICTION
131
What is the effect of service made on Sunday?
It's void & the person who served it can be liable for damages for abusive process
EXCEPTION
Where there is an order from court permitting service on Sunday. Petitioning party must file affidavit requesting service or execution on Sunday stating they have good reason to believe that the person intends to escape FL on Sunday
132
What are the three ways to do substitute service?
1. In post DOM -if party is remarried, can serve new spouse at any place in county so long as that spouse lives with the party
2. Can be made on person doing business at place of business during regular business hours by serving manager IF more 1 or more attempts made to serve owner have been attempted at business
3. Usual place of above on a person 15 or older if they live with party (service of roommate in parking garage fails because not usual place of abode)
133
How is service made on an incompetent person
Serving two copies of summons and complaint on legal guardian, guardian ad litem or person who cares for incompetent persons
134
When types of action can service be made be made by constructive service?
i) to partition real or personal property;
(ii) for dissolution or annulment of marriage;
(iii) for adoption;
(iv) for termination of parental rights pursuant to either chapter 39 or chapter 63;
(v) for temporary custody of a minor child under chapter 751; and
(vi) to determine paternity, but only as to the legal father in a paternity action in which another man is alleged to be the biological father (and, as of January 1, 2023, over a legal mother when there is no legal father
135
If a party is intentionally avoiding service, can petitioner ignore technical requirements of service?
No
136
When is drop service permitted?
When person is avoiding service - service will be deemed complete upon leaving it on door step or mailbox in such case.
137
What is a condition precedent to service by publication?
The party attempting to effect service must file an affidavit
138
What must affidavit include for publication by service?
That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and
* Whether such person is over or under the age of 18 years, if his or her age is known, or that the person's age is unknown; and
* In addition to the above, that the residence of such person is, either: Unknown to the affiant; or in some state or country other than this state, stating said residence if known; or in the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.
139
If constructive service is disputed, what are the two things trial court must determine?
1. If the affidavit of diligent search is legally sufficient.
2. Whether the plaintiff conducted an adequate search to locate the defendant.
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What is sufficient to making a finding that a diligent search was conducted?
The affidavit need only allege that a diligent search and inquiry was made, and need not include specific supporting facts.
141
Do you effectuate constructive service by publication by publication?
Notice of action must be published once during each week for 4 consecutive weeks (four publications being sufficient) in some newspaper published in the county where the court is located.
142
How should service in DOM be effectuated when one of the parties is mentally incapacitated?
61.052(1)(b)
Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party. If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party.
143
What has the Florida Supreme Court indicated is the two-prong test to determine whether long arm jurisdiction is proper under the long arm statute?
First, determine if complaint alleges sufficient jurisdiction facts to bring the action within the long arm statute then conduct an inquiry whether sufficient minimum contacts are demonstrated to satisfy due process requirements.
144
What is venue for purposes of a DOM action?
A cause of action accrues in the last county where the parties resided as husband and wife with the common intent to remain married
145
When will minimum contact inquiry be satisfied for a proceeding for alimony, child support or division of property in connection with DOM or a separate action for support?
If parties maintained a matrimonial domicile in FL at the time action commenced OR Respondent lived in FL before action (even if not living with party)
146
When can service by publication be used?
Only when personal service of process cannot be effected
147
Process can be serviced constructively by publication under which circumstances?
1. R is a nonresident (if you are unable to obtain service)
2. R's residence is unknown
3. R is FL resident but has been absent for 60 days before P made sworn statement required for constructive service
4. R conceals himself so personal service or substitute service cannot be made
148
Does the fact that a respondent may have received actual notice of a proceeding sufficient to establish service by publication?
No
149
What happens to a judgment that is obtained by way of a fraudulent service be publication?
It can be set aside
150
Can a motion to set aside a judgment based on a perjured affidavit for service of publication be heard more than one year after the judgment?
YES - since it is a violation of due process and the court therefore never acquired jurisdiction over the respondent
151
What is the test for adequacy as to whether a diligent search and inquiry has been made?
Whether complainant reasonably employed knowledge at his command in making the search
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If the allegations in a sworn petition for divorce state all of the allegations necessary for the sworn statement for constructive service, the affidavit of diligent search is facially sufficient to support constructive service. HOWEVER, the judgment rendered pursuant to such service may be voidable if the affected party claims that an actual diligent search was not made. Who bears the burden at this point?
Petitioner has burden to prove an adequate search was conducted.
153
After notice of action via constructive service by publication, how much time does the Respondent have to answer?
28 days to answer & service and no more than 60 days after 1st publication and notice
154
For purposes of constructive service, if a legal father cannot be located, where shall the constructive service by publication take place?
County where the legal father was last known to have resided - clerk shall mail notice to father's last known address.
155
What is required for constructive service where Respondent is in the military?
Must list whether R is in active duty or not in active duty or if it is unknown and all efforts made to determine the military status of the respondent. (active duty is more than 30 days)
156
Does chapter 61 require parties to be resident of FL for a support unconnected with divorce action?
No - court's have subject matter jurisdiction IF there is a basis for personal jurisdiction over Respondent when petition if filed even if neither party meets 6 month requirement
157
Where is proper venue for an action for support unconnected with divorce?
In the county were Petitioner or minor child are physically present and refused support by other spouse.
158
If the last place where the parties lived with the intent to remain married was out of state, where is proper venue?
Where the defendant resided at the time of filing the petition for dissolution (petitioner must still satisfy residency requirement).
159
Where is proper venue for establishing a foreign decree?
The where the Respondent resides.
160
Where is proper venue in a modification of child support, maintenance or alimony?
In the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or
in which the agreement was executed or in which the order was rendered.
161
If equitable distribution of a military pension is sought, what is needed?
Personal jurisdiction over service member based on residence other than military assignment - must be based on domicile or obtained by consent to participate in the litigation.
162
What is venue?
Venue designates the particular COUNTY in FL in which a court with jurisdiction may hear and determine the case. Determines the LOCATION of the suit.
163
What is the general venue statute?
47.011 - in general, an action shall be brought
1. Where R resides
2. Where action accrued
3. Where property in litigation is located
164
Where is proper venue to modify a Parenting Plan?
1. County in which either party resides WITH the child
2. County where original order entered
165
Where is proper venue for modification of support?
1. Where either party lives
2. County where original order entered
3. Where agreement was executed
4. Where either party resided at the time agreement was executed
166
Where is proper venue for enforcement of support?
1. Where payee resides
2. Where payor resides
3. Where judgment was entered
167
What happens if one party files an enforcement in a proper venue and then other party subsequently files a modification action in another venue. Can the modification case have enforcement case transferred?
The court where the subsequent modification petition was filed should dismiss same.
168
When does a foreign court lose its continuing and exclusive jurisdiction concerning a child support order under UIFSA?
When neither the child nor any party continue to reside in the issuing state OR when all parties file written consent with issuing court to allow another state to assume continuing and exclusive jurisdiction despite parties' state of residence.
169
Where is proper venue to domesticate a foreign judgment?
1. County where R lives
2. County where cause of action accrued
3. Where property in litigation is located
170
What is the burden of proof for venue?
The party filing the action initially selects venue, but need not plead or prove that his selection is proper. The venue a party chooses is presumptively correct
The burden lies on the party who seeks a change of venue to demonstrate the impropriety of the venue selection.
171
What is the proper remedy for improper venue?
Transfer it to proper county - not dismissal
172
Where is proper venue for a paternity action?
Whether either Petitioner or Respondent resides.
173
What must Respondent prove if he says venue is improper?
1. Must prove Respondent's venue is proper AND
2. Petitioner's venue is improper.
174
What is venue is proper in more than 1 county?
Petitioner has the right to select the appropriate county and it would be improper to transfer venue to another county even if that county is also appropriate.
175
If venue is proper in more than 1 county, how could Respondent try to obtain a change in venue?
Prove that current venue is an inconvenient forum.
176
What is the proper remedy if court determines there is more convenient forum?
To transfer the case not dismissal.
177
What happens if court determined that venue is incorrect and should be transferred?
Petitioner has to pay filing fees to transfer within 30 days BUT if change of venue is for forum inconvenience or inability to receive a fair trial, party requesting transfer must pay the transfer fees.
178
How does Respondent raise defense to improper venue?
1. motion to transfer
2. motion to abate for improper venue
3. raising it in answer
179
Is an evidentiary hearing required for a venue challenge?
Yes, unless it is evidenced on the face of the petition that the venue is improper.
180
Can a grant or denial of venue be appealed?
Yes but not until the court file has been received by the transferee court and the applicable cost have been paid
181
If both parties file for divorce in different counties, which county has jurisdiction?
The county that exercises jurisdiction first - jurisdiction attaches when the summons is served.
182
What is it called when an issue is not raised by pleading but tried when a party is absent?
Tried in abstentia.
183
What are affirmative defenses?
A defense which admits the cause of action but avoids liability by alleging an excuse, justification or other matter negating or limiting liability
184
What are affirmative defenses that may be asserted?
(a) Accord & satisfaction
(b) Arbitration and award
(c) Assumption of risk
(d) Contributory negligence
(e) Discharge in bankruptcy
(f) Duress
(g) Estoppel
(h) Failure of consideration
(i) Fraud
(j) Illegality
(k) Injury by Fellow Servant
(l) Laches
(m) License
(n) Payment
(o) Release
(p) Res Judicata
(q) Statute of Frauds
(r) Statute of Limitations
(s) Waiver
185
What is required when pleading an affirmative defense?
All elements of the defense must be alleged and if defense is based on an instrument - must be attached.
186
What happens if you don't raise affirmative defense?
It's waived unless the basis is clear from face of complaint or one statutorily specific as one that can be raised by motion.
187
What are the two grounds for dissolution?
1. Marriage is irretrievably broken OR
2. Mental incapacity of other party.
188
Is it necessary to plead for fees?
YES and if you fail to plead for it, you cannot be awarded for hours worked during a period for which no request for fees was made.
189
What must every petition for child support or modification of child support include?
Financial Affidavit must be filed at the same time petition served.
Respondent must provide his Financial Affidavit no less than 72 hours before any financial hearing.
190
What is the purposes of a lis pendens?
To put a third party on notice that a claim is made to the real or personal property titled in the name of a party in the action.
191
What should lis pendens include?
Adequate detail of the property and the relief sought and must be duly recorded.
192
What is sequestration?
Another form of equitable relief - if the proceeding is in rem against the property of a party who is not in FL or can't be located. Court can consider sequestration for purpose of discharging support obligation arrears.
193
Can court sequester property a nonparty?
No unless the non-party is joined as a party to the action.
194
When must a DOM be verified
1.When UCCJEA allegations are included.
2. When temporary injunction or other emergency relief is sought without notice
195
When can the court enter a default FJ?
When opposing party fails to file a responsible pleading within time required and default entered by clerk
196
When may the court not enter a default judgment without notice?
If an opposing party filed any paper whatsoever, then the party must be served with a notice of application for default. Failure to do so will subject the FJ to being set aside
197
What basis can a default judgment be set aside?
Pursuant to 12.540 for excusable neglect coupled with meritorious defense and exercise of diligence can be demonstrated.
198
Is a Motion for Rehearing required to preserve an appeal to challenge the sufficiency of a trial court's findings in a final judgment?
Yes, since August 2022 Fla. Fam. L.R.P., 12.530.
199
12.285 mandatory disclosure rules apply to family cases except?
Adoption, simplified dissolution, enforcement, contempt, injunctions for protection against domestic, repeat, dating, or sexual violence, or stalking, and uncontested dissolutions when the respondent is served by publication and does not file an answer OR
action for fees based solely on 57.105 -
200
Can parties agree to modify compliance with 12.285?
Yes but not with respect to child support guidelines.
201
Are parties obligated to produce original documents for purposes of 12.285?
Unless otherwise agreed by the parties or ordered by the court, copies of documents required under this rule may be produced in lieu of originals.
202
After parties produced records pursuant to 12.285, are they obligated to produce it again?
No, parties shall not be required to serve duplicates of documents previously served.
203
What if anything in compliance with 12.285 should be filed with the court
Only Financial Affidavit Child Support Guidelines - 12.285 specifically states no documents to be filed with court unless court order.
204
When is compliance with 12.285 due for temporary relief hearing?
The party seeking temporary relief must produce the records at least 10 days before a temporary financial relief hearing unless it was served when due (45 days after Respondent was served)
205
When does respondent have serve 12.285 docs for a temp relief hearing?
The party not seeking temporary financial relief must serve the required documents on the party seeking relief at least 5 days prior to the temporary financial hearing, unless the docs were already served.
206
When is 12.285 discovery due in an initial / modification proceeding?
45 days of service of the initial pleading on the respondent
207
Wen are parties excused from filing and serving a Financial Affidavit?
The parties are not required to file or serve a financial affidavit if they are seeking a simplified dissolution of marriage under rule 12.105, they have no minor children, have no support issues, and have filed a written settlement agreement disposing of all financial issues, or if the court lacks jurisdiction to determine any financial issues.
208
When can the parties waive the requirement to filing a Financial Affidavit?
RULE CHANGE
(2) Upon agreement of the parties and filing of a notice of joint verified waiver of filing financial affidavits, the court shall not require that financial affidavits be filed. In the notice, both parties must acknowledge:
(A) that evidence of their current or past financial circumstances may be necessary for future court proceedings;
(B) they each have provided the other with a fully executed and sworn financial affidavit in conformity with Florida Family Law Form 12.902(b) or 12.902(c), as applicable;
(C) that the responsibility to retain copies of all affidavits exchanged rests solely with the parties;
(D) that the waiver only applies to the current filing and does not automatically apply to any future filings; and
(E) that the waiver may be revoked by either party at any time.
209
When does a party have an obligation to disclose new financial info?
There is a continuing duty to supplement whenever there is a material change in their financial circumstance
210
What must be included with an amended FA?
The amending party must also serve any subsequently discovered or acquired documents supporting the amendments to the financial affidavit.
211
Can a party be sanctioned for failure to comply with 12.285
Any document to be produced under this rule that is not served on the opposing party within the time periods set forth for temp relief hearings, before a nonfinal hearing or in violation of the court's pretrial order shall not be admissible in evidence at that hearing unless the court finds good cause for the delay. In addition, the court may impose other sanctions authorized by rule 12.380 as may be equitable under the circumstances. The court may also impose sanctions upon the offending lawyer in lieu of imposing sanctions on a party.
212
Can a party seek an extension of time to comply with MD?
Either party may file, before the due date, a motion to enlarge the time for complying with mandatory disclosure. The court must grant the request for good cause shown
213
When must objections to MD be filed?
Objections to the mandatory automatic disclosure shall be served in writing at least 5 days before the due date for the disclosure or the objections shall be deemed waived.
The filing of a timely objection, with a notice of hearing on the objection, automatically stays mandatory disclosure for those matters within the scope of the objection. For good cause shown, the court may extend the time for the filing of an objection or permit the filing of an otherwise untimely objection. The court must impose sanctions for the filing of meritless or frivolous objections.
214
If children are involved, what does 12.285 require?
Child Support Guidelines.
215
Can a default fj be entered if the default party doesn't comply with 12.285?
Yes
216
Can an FA be compelled in an enforcement or contempt proceeding?
Yes - 12.287 - a short form FA must be filed within 10 days (can seek more or less time by approval of court)
217
When may a party request any other party to submit to an examination by a qualified expert?
When the condition that is the subject of the request is in controversy and there is good cause
218
What is needed for a request for a examination of physical condition?
1. Condition must be in controversy
2. Burden on requesting party to show good cause
3. Request must specify reasonable time, place, manner, conditions and scope of exam.
4. Exam takes place in county of party's residence
5. 30 days after request, other party shall file a response agreeing or objecting (or 45 days if request made with initial petition)
6. If other people to be present - request / response should say so.
219
How long does a party have to file a Motion to Vacate a Recommended Order of GM?
15 days from entry of the recommended order and then a cross motion must be filed within 5 days of service of the motion to vacate..
220
When does a hearing on a Motion to Vacate a Recommended Order of a GM be heard?
30 days from the date the motion to vacate was filed.
221
How long does a party have to file a motion to vacate a recommended order of an HO?
15 days from entry of the recommended order, and then a cross motion must be filed within 5 days of service of the motion to vacate.
