Opinion
No. 3D21-1226
12-01-2021
Juan CONTRERAS, Appellant, v. Norma CONTRERAS, Appellee.
John Paul Arcia, P.A., and Michael Farrar, for appellant. Thomas Butler, P.A., and Thomas J. Butler, for appellee.
John Paul Arcia, P.A., and Michael Farrar, for appellant.
Thomas Butler, P.A., and Thomas J. Butler, for appellee.
Before LOGUE, SCALES, and MILLER, JJ.
MILLER, J.
Appellant, Juan Contreras, the husband, appeals a final judgment of dissolution rendered upon default after service of process was effectuated through publication. On appeal, the husband challenges a provision in the final judgment awarding appellee, Norma Contreras, the wife, a portion of the surplus funds derived from the judicial foreclosure sale of certain property located in Miami-Dade County, Florida. Concluding the process served on the husband was insufficient to confer jurisdiction on the court to adjudge the respective rights of the parties to the surplus, we reverse and remand for further proceedings.
The wife filed a petition for dissolution in the lower tribunal. After confirming the husband was incarcerated in Mexico, the wife filed an affidavit of diligent search and perfected service by way of publication. The notice of action did not contain a description of any real property. The husband failed to file a responsive pleading, and the lower tribunal entered a default and final judgment of dissolution. In the final judgment, provision was made for the wife to receive fifty percent of the surplus from the foreclosure sale of property identified as the marital residence. The instant appeal ensued.
Under well-settled Florida law, property rights cannot be adjudicated in dissolution proceedings "where service is by publication, except to the extent that the court obtains in rem jurisdiction over particular real property described in the notice of action." 26 Fla. Jur. 2d Family Law § 1073. To acquire such jurisdiction in the absence of personal service, the property "must be specifically described in the petition and notice of constructive service." Steffens v. Steffens, 593 So. 2d 1156, 1158 (Fla. 2d DCA 1992) ; see also § 49.08, Fla. Stat. (2021) ("[A] notice of action ... shall set forth: ... The description of real property, if any, proceeded against.").
Here, although the wife described the property in her petition, it is axiomatic "there [was] nothing in the notice of action to put the [husband] on notice that his ... interest in real property in Florida [would] be proceeded against." 26 Fla. Jur. 2d Family Law § 1073. The wife argues, however, that, having failed to move for rehearing below, the husband waived any defect. We are not so persuaded.
"A legion of cases make it clear that the issue of subject matter jurisdiction may be considered by an appellate court even though raised for the first time on appeal." Parker v. Parker, 553 So. 2d 309, 311 (Fla. 1st DCA 1989) ; see, e.g., Bohlinger v. Higginbotham, 70 So. 2d 911 (Fla. 1954) ; City of Miami v. Cosgrove, 516 So. 2d 1125 (Fla. 3d DCA 1987). Further, "because in rem jurisdiction is a special type of subject matter jurisdiction, unlike personal jurisdiction, it may not be waived." 12A Fla. Jur. 2d Courts and Judges § 73 ; see also Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994).
Accordingly, we conclude the court was "without power to include provisions affecting rights in such property in its judgment dissolving the marriage," and we reverse and remand for further proceedings consistent herewith. 26 Fla. Jur. 2d Family Law § 1073 ; see Davis v. Dieujuste, 496 So. 2d 806, 808 (Fla. 1986) ; Wright v. Wright, 411 So. 2d 1334, 1335 (Fla. 4th DCA 1982) ; Lahr v. Lahr, 337 So. 2d 837, 838 (Fla. 2d DCA 1976) ; Nethery v. Nethery, 212 So. 2d 10, 11 (Fla. 1st DCA 1968) ; Hennig v. Hennig, 162 So. 2d 288, 289 (Fla. 3d DCA 1964) ; Webb v. Webb, 156 So. 2d 698, 703 (Fla. 3d DCA 1963) ; see also Montano v. Montano, 520 So. 2d 52, 53 (Fla. 3d DCA 1988).
Reversed and remanded.