Gorny v. Leger

114 So. 3d 238, 2013 WL 132458, 2013 Fla. App. LEXIS 469
CourtDistrict Court of Appeal of Florida
DecidedJanuary 11, 2013
DocketNo. 5D11-4123
StatusPublished
Cited by1 cases

This text of 114 So. 3d 238 (Gorny v. Leger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gorny v. Leger, 114 So. 3d 238, 2013 WL 132458, 2013 Fla. App. LEXIS 469 (Fla. Ct. App. 2013).

Opinion

PER CURIAM.

David Alan Gorny [“Gorny”] appeals two non-final orders in the proceeding below by which Renee L. St. Leger [“St. Leger”] is attempting to collect almost $200,000 in unpaid child support. In one, the trial court determined that service of process on Gorny had been effectuated, and set the case for a hearing on St. Leger’s amended petition for domestication and enforcement of a foreign judgment. In the second, a composite order, the trial court denied St. Leger’s motion for judicial default, and also denied Gor-ny’s motion to strike St. Leger’s motion for contempt, his motion for protective order, and his motion to dismiss St. Leger’s amended petition for domestication and enforcement. We find merit only in Gor-ney’s claim that service of process was not established.

St. Leger filed a petition for domestication and enforcement of a foreign judgment from Tennessee in 2007. The Sheriff attempted service of process on Gorny at 144 Deerpath Road, DeBary, FL 32713, on September 11, 2007, but, according to the return of non-service, after diligent search and inquiry, he was unable to find Gorny in Volusia County, Florida. According to the resident at the address where service was attempted, Gorny lived in the Cayman Islands at the time.

[239]*239Thereafter, on May 28, 2008, St. Leger filed an amended petition for domestication and enforcement of the foreign judgment, as well as a motion for contempt for Gorny’s alleged failure to pay child support. She filed a notice of filing “ORIGINAL AFFIDAVIT OF SERVICE OF ALIAS SUMMONS: PERSONAL SERVICE ON AN INDIVIDUAL, SERVED UPON SUBSTITUTE FOR RESPONDENT ON JUNE 7, 2008.” The affidavit indicates that substitute service of process was made on Gorny through his son at 144 Deerpath Road, DeBary, FL 82718, on June 7, 2008.

Through an untitled pro se pleading, which was sent via certified mail to the Clerk of Court, Gorny objected to the substitute service, asserting:

IN REFERENCE TO THE SUMMONS SERVED UPON MY FORMER ADDRESS OF 144 DEERPATH ROAD, DEBARY, FL. 32713. THIS IS NOT MY LEGAL ADDRESS AND THE TENANTS THAT RESIDE THERE NOTIFIED ME THAT THIS SUMMONS WAS SERVED THERE ON JUNE 7, 2008.
ATTACHED YOU WILL FIND MY WORK PERMIT GRANT FOR WORKING AND LIVING IN GRAND CAYMAN, CAYMAN ISLANDS. I HAVE BEEN A RESIDENT OF THE CAYMAN ISLANDS SINCE MAY, 2007 AND MY WIFE HAS BEEN A RESIDENT HERE SINCE FEBRUARY 2008. MY HOME AT 144 DEERPATH ROAD IS RENTED AND SERVICE SHOULD NOT BE ACCEPTED THERE.
THE PETITIONER RENEE L. ST LEGER IS WELL AWARE OF [sic] THAT I NO LONGER LIVE AT THE FLORIDA ADDRESS AND I HAVE BEEN OUT OF THE COUNTRY. I WILL BE HAPPY TO ADDRESS THIS SITUATION WITH THE PETITIONER ONCE I RETURN TO THE UNITED STATES.

The trial court treated Gorny’s objection as a motion to quash service and directed that a hearing on the motion be held.

It appears that, as a result of a hearing held on August 16, 2010, counsel for St. Leger sent Gorny copies of the documents that had been filed in the case, including but not limited to the summons and alias summons, through certified mail with return receipt requested to 144 Deerpath Road, DeBary, FL 32713 and P.O. Box 30751 SMB Grand Cayman, Cayman Islands, KYI-1204.

On September 2, 2010, the trial court entered an order setting the case for trial. Thereafter, on November 3, 2010, the trial court entered a final judgment of domestication and enforcement. In the final judgment, the trial court provided that Gorny “failed to appear” and found that Gorny “was provided with proper notice of the trial on this matter at both of his mailing addresses in Florida and the Cayman Islands.” It provided that Gorny was in arrears on child support in the amount of $138,005.00, and that the interest on the arrearage totaled $45,451.30.

Gorny filed a motion for reconsideration, for rehearing, to vacate final judgment, and to dismiss. He asserted that the purported substitute service of the amended petition was invalid because the substitute service was made at an address at which he was not then residing, and that the scheduled hearing for his pleading that the trial court treated as a motion to quash service was never held.

On March 3, 2011, the trial court entered an order on Gorny’s motion for reconsideration, for rehearing, to vacate final judgment, and to dismiss the amended petition. In the order, the trial court found [240]*240that venue was not proper, granted the motion to vacate final judgment and the motion to quash service, and denied the motion to dismiss the amended petition.

It appears that, on May 3, 2011, counsel for St. Leger sent a copy of all pleadings in the case to counsel for Gorny, explaining in a cover letter:

Enclosed herewith please find a copy of all pleadings filed by my office in the above entitled matter. In accordance with Fla. R. Civ. P. 1.080(b) and Fla. Fam. L.R.P. 12.080(a)(1), this perfects service of process upon your client, and a timely response is expected.

Subsequently, on June 15, 2011, the trial court entered a case management order, finding:

1. Former Wife filed an Amended Petition for Domestication and Enforcement of Final Judgment of Dissolution of Marriage on May 13, 2008.
2. To date, service of said Petition has not yet occurred.
3. Counsel for Former Wife has indicated that she has registered a foreign judgment pursuant to Florida Statutes § 55.501- § 55.509.
4. The Court finds that certain requirements for proper registration of a foreign judgment in accordance with the above referenced statutes have not yet been met.

It ordered:

To aid in the disposition of this cause pursuant to Florida Rule of Civil Procedure 1.200, the Court ORDERS the following herein:
1.Pursuant to Florida Statutes § 55.505(2), counsel for Former Wife must send a Notice of Recording of Foreign Judgment via registered mail with return receipt requested to Former Husband at the address given in the Affidavit setting forth the name, address, and social security number of judgment creditor and debtor and shall record proof of mailing with the Clerk, within sixty (60) days.

On August 12, 2011, St. Leger filed a certificate of service of pleadings with an attached domestic return receipt, certifying that a true and correct copy of the certificate of service of pleadings and the attached domestic return receipt had been furnished to counsel for Gorny. Included among the pleadings that were certified to have been “served by Certified mail, Return Receipt” upon Gorny were the petition for domestication and enforcement, the summons, the notice of recording foreign judgment, the amended petition for domestication and enforcement, and the alias summons. The attached domestic return receipt indicates that Gorny received an article at 144 Deerpath Road, DeBary, FL 32713 on August 3. ' The signed domestic return receipt bears a date stamp of August 3, 2010, but a track and confirm print-out lists a delivery date of August 3, 2011.

On October 25, 2011, St. Leger filed a motion for judicial default, asserting:

1. The Amended Petition for Domestication and Enforcement was served upon Husband by Certified Mail, per the Court’s instruction, on August 3, 2011.
2.

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Bluebook (online)
114 So. 3d 238, 2013 WL 132458, 2013 Fla. App. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorny-v-leger-fladistctapp-2013.