Opinion
No. 77-2010.
April 18, 1978. Rehearing Denied May 12, 1978.
Appeal from the Circuit Court, Dade County, Rhea P. Grossman, J.
Dennis M. O'Connor, in pro per.
Richard C. Carter, Jr., Angelo P. Demos, Smathers Thompson, Colson Hicks, Miami, for appellee.
Before PEARSON, HENDRY and BARKDULL, JJ.
The marriage of the parties to this appeal was dissolved July 3, 1972. The litigation was prolonged and bitterly contested. We note, however, that the judgment apparently was not appealed.
On July 21, 1977, the former husband filed below a petition for relief from the judgment pursuant to Rule 1.540(b)(4). The burden of the petition was that the judgment was void for want of jurisdiction because the wife did not, in fact, reside in the state for six months before filing the action. See Section 61.021, Florida Statutes (1971). Fraud upon the court is not alleged, nor is it alleged that the husband was without knowledge of the claimed issue at the time of entry of the judgment. The trial judge denied the petition and this appeal is from that order.
The trial court correctly determined that the issue was foreclosed by the final judgment, which was not appealed. See Beaty v. Beaty, 177 So.2d 54, 57 (Fla.2d DCA 1965).
Affirmed.