Summary
The Florida Third District Court of Appeal reversed the dismissal with prejudice of Robert Dolan's petition to modify a final judgment concerning child support. The court held that Kim Dolan waived any objection to insufficiency of service of process by failing to raise it in her initial motion to dismiss and instead addressing the merits. The case was remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the former wife waived an objection to insufficiency of service of process by failing to raise it in her initial motion to dismiss.
- Whether the former husband was required to file a motion for rehearing to preserve the service-of-process issue for appellate review.
Holdings
- A party waives an objection to insufficiency of service of process when the party fails to raise it in the first responsive pleading or motion, and a later motion filed after a substantial delay cannot resurrect the waived defense.
- A motion for rehearing was not required to preserve the service-of-process issue for appeal where the appellant was not challenging the sufficiency of the trial court's factual findings.
Key quotations
“If not raised in a responsive pleading or by motion filed by a party, an objection to improper service of process is waived.” (81 So. 3d at 559)
“The former wife, therefore, waived that issue by failing to raise it in her first motion to dismiss. Her subsequent motion to dismiss was filed a year later and cannot resurrect the issue.” (81 So. 3d at 560)
Factual background
In March 2009, the former husband filed a verified petition seeking to modify the final judgment concerning his child-support obligations. The former wife was served with the amended petition and initially moved to dismiss for failure to state a cause of action, addressing the merits without challenging service of process. Approximately one year later, she filed a second motion to dismiss raising insufficiency of service, after which the trial court permitted renewed service and ultimately dismissed the petition with prejudice when service was not completed within five working days.
Procedural history
Robert Dolan filed a second verified petition to modify his child-support obligations in March 2009. Kim Dolan responded with a motion to dismiss for failure to state a cause of action without objecting to service of process. After filing a later motion raising insufficiency of service, the trial court allowed the former husband five working days to serve the petition and then dismissed the petition with prejudice when service was not completed within that period. The Third District reversed and remanded.
Remand instructions
The case was remanded for further proceedings after reversal of the order dismissing the former husband's second amended petition with prejudice.