STATE v. THURMOND

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Docket Number

No. 98-1249.

Attorney(S)

Robert A. Butterworth, Attorney General, and Barbara A. Ard, and Jon J. Johnson, Assistant Attorneys General, for appellant. George M. Evans, Coral Gables, for appellee.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

The State of Florida, on behalf of Shirley D. Prinzee, initiated a child support enforcement action against Calvin Lamar Thurmond in 1984. The court confirmed a stipulation requiring Thurmond to pay fifty dollars biweekly. In 1988, the court found Thurmond in arrears for 1986 and 1987 and issued a writ of bodily attachment and an income deduction order. On June 8, 1995, the trial court sua sponte scheduled an uncontested final hearing and/or status conference, mailing notice only to Thurmond's counsel, who was directed to notify other parties. The state did not appear at the hearing, resulting in dismissal of the case and setting aside the writ of bodily attachment on July 18, 1995. The state later moved to vacate the dismissal order, asserting it received no notice of the hearing and that the dismissal was prejudicial. The trial court denied this motion, prompting the present appeal.

Legal Issues Presented

Whether the trial court erred in denying the state's motion to vacate the dismissal order entered without notice to the state.
Whether a judgment entered without notice to a party is void and subject to relief under Florida Rule of Civil Procedure 1.540(b)(4).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Metropolitan Dade County v. Curry, 632 So.2d 667 (Fla. 3d DCA 1994)	A judgment entered without notice to a party is void ab initio.	Supported the conclusion that the dismissal order without notice was void and subject to vacation.
Cam-La, Inc. v. Fixel, 632 So.2d 1067 (Fla. 3d DCA 1994)	Void judgments due to lack of notice may be vacated at any time.	Reinforced the principle allowing relief from void judgments under rule 1.540(b)(4).
McAdam v. Thom, 610 So.2d 510 (Fla. 3d DCA 1992)	Judgments entered without notice are void.	Supported the court's finding that the dismissal was void.
Shields v. Flinn, 528 So.2d 967 (Fla. 3d DCA 1988)	Judgment without notice is void and subject to vacation.	Applied to affirm the state's right to relief from the dismissal order.
Falkner v. Amerifirst Federal Savings and Loan Ass'n, 489 So.2d 758 (Fla. 3d DCA 1986)	Void judgments may be set aside regardless of the passage of time.	Supported the court's reasoning that time does not validate a void judgment.
Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980)	Judgments without notice are void.	Reinforced the principle underlying relief from the dismissal.
Ramagli Realty Co. v. Craver, 172 So.2d 648 (Fla. 1960)	"The passage of time cannot make valid that which has always been void."	Grounded the court's conclusion that the dismissal order remained void despite delay.
Watson v. Watson, 583 So.2d 410 (Fla. 4th DCA 1991)	Relief from void judgments is appropriate.	Supported reversal of the trial court's denial of the motion to vacate.
Taylor v. Bowles, 570 So.2d 1093 (Fla. 4th DCA 1990)	Void judgments may be vacated at any time.	Applied to affirm the state's entitlement to relief.
Clement v. Marcus, Stowell Beye, Inc., 516 So.2d 1137 (Fla. 4th DCA 1987)	Judgments entered without notice are void and subject to vacation.	Supported the court's decision to reverse and remand.

Court's Reasoning and Analysis

The court analyzed the procedural history and recognized that the dismissal order was entered without notice to the state, a party entitled to notice. Under Florida Rule of Civil Procedure 1.540(b)(4), a judgment or order that is void may be vacated at any time. The court cited longstanding precedent establishing that judgments entered without notice are void ab initio and that the passage of time does not cure such defects. The trial court's denial of the state's motion to vacate was an abuse of discretion because it failed to recognize the void nature of the dismissal order. Consequently, the appellate court reversed the denial and remanded with instructions to reinstate the case and the writ of bodily attachment.

Holding and Implications

The appellate court reversed the trial court's denial of the state's motion to vacate the dismissal order and remanded with directions to reinstate the cause and the writ of bodily attachment.

The direct effect of this decision is to restore the state's enforcement action against Thurmond, allowing the case to proceed on the merits. The opinion does not establish new legal precedent but reaffirms the principle that judgments entered without notice are void and subject to vacation under rule 1.540(b)(4).

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STATE of Florida, DEPARTMENT OF REVENUE on Behalf of Shirley D. PRINZEE, Appellant, v. Cal

PER CURIAM.

This is an appeal from an order denying the state's motion to vacate and set aside the trial court's order dismissing this cause. We reverse.

The State of Florida, on behalf of Shirley D. Prinzee, originally commenced this action against Calvin Lamar Thurmond, for payment of child support, in 1984. The court subsequently entered an order confirming a stipulation between the parties for Thurmond to pay fifty dollars every two weeks as child support. In 1988, the lower court found Thurmond to be in arrears for the years 1986 and 1987. Accordingly, the court issued a writ of bodily attachment and an income deduction order.

On June 8, 1995, the trial court sua sponte entered an order scheduling an uncontested final hearing and/or status conference for this case. The face of the order clearly reflects that it was mailed only to Thurmond's counsel, but Thurmond's counsel was directed in the body of the order to notify all other parties. When the state thereafter failed to make an appearance at the scheduled hearing, the court entered an order dated July 18, 1995, dismissing this cause and setting aside the writ of bodily attachment.

On January 29, 1998, the state moved to vacate this order of dismissal pursuant to Florida Rule of Civil Procedure rule 1.540(b)(4), on the grounds that it had received no notice of the final hearing and/or status conference and that the order was otherwise prejudicial. Although the trial court acknowledged that the state had received no notice of the hearing, it summarily denied the state's motion. In so doing, we agree with the state that the court erred.

This rule provides, in relevant part, that:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:

. . . (4) that the judgment or decree is void[.]

Fla.R.Civ.P. 1.540(a)(4).

This court has repeatedly held that a judgment entered without notice to a party is void ab initio. See Metropolitan Dade County v. Curry, 632 So.2d 667, 668 (Fla. 3d DCA 1994); Cam-La, Inc. v. Fixel, 632 So.2d 1067, 1068 (Fla. 3d DCA 1994); McAdam v. Thom, 610 So.2d 510, 512 (Fla. 3d DCA 1992) Shields v. Flinn, 528 So.2d 967, 968 (Fla. 3d DCA 1988); Falkner v. Amerifirst Federal Savings and Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986); Gelkop v. Gelkop, 384 So.2d 195, 199 (Fla. 3d DCA 1980). In accordance with rule 1.540(b)(4), relief from a void judgment may therefore be granted at any time. See Curry, 632 So.2d at 668; Shields, 528 So.2d at 968; Falkner, 489 So.2d at 759. Indeed, this legal principle is grounded in the notion that "[t]he passage of time cannot make valid that which has always been void". Ramagli Realty Co. v. Craver, 1721 So.2d 648, 654 (Fla. 1960). Thus, we conclude that the lower court abused its discretion when it denied the state's motion seeking to vacate the order of dismissal. See Watson v. Watson, 583 So.2d 410, 411 (Fla. 4th DCA 1991); Taylor v. Bowles, 570 So.2d 1093, 1094 (Fla. 4th DCA 1990); Clement v. Marcus, Stowell Beye, Inc., 516 So.2d 1137, 1138 (Fla. 4th DCA 1987). Hence, we reverse and remand with directions that this cause, including the writ of bodily attachment, be reinstated.

Reversed.