07-3302 TIMOTHY D. JOHNSON v. STATE OF FLORIDA, DEPT. OF REVENUE, on behalf of DAISHAI D. LAMONTAGNE

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State: Florida

Court: Florida First District Court

Docket No: 07-3302

Case Date: 01/24/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA TIMOTHY D. JOHNSON, Appellant, v. STATE OF FLORIDA, DEPARTMENT OF REVENUE, on behalf of DAISHAI D. LAMONTAGNE, Appellee. ___________________________/ Opinion filed January 24, 2008. An appeal from the Circuit Court of Nassau County. Robert M. Foster, Judge. Timothy D. Johnson, pro se, Appellant. Albert Thornburn, Department of Revenue, Child Support Enforcement, Tallahassee, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-3302

BENTON, J. Timothy Johnson appeals the order denying his motion to vacate a default final judgment of paternity entered against him in 1994, which adjudicated him the father of a child born in 1991. The sworn motion and attached affidavit alleged that appellant was never served with process and did not learn of the action until after the

trial court entered judgment. Without a hearing, the trial court denied the motion, on grounds that the appellant had made a voluntary appearance by filing various motions relating to the 1994 paternity judgment between 1995 and 2006.1 We reverse and remand for further proceedings. We have jurisdiction because the order below was "entered on [a] motion[] filed under Florida Rule of Civil Procedure 1.540 . . . and Florida Family Law Rule of Procedure 12.540." Fla. R. App. P. 9.130(a)(5) (2007). In the trial court, the rule provides that "Florida Rule of Civil Procedure 1.540 shall govern." Fla. Fam. L. R. P. 12.540. According to the order under review, at no previous time since "the inception of this case . . . has defendant sought to have the final judgment vacated," so the matter is not res judicata. On proper motion, trial courts must set aside void judgments pursuant to Florida Rule of Civil Procedure 1.540(b)(4). See Dep't of Transp. v. Bailey, 603 So. 2d 1384, 1386-87 (Fla. 1st DCA 1992) ("If it is determined that the judgment entered is void, the trial court has no discretion, but is obligated to vacate the judgment."). Although a motion to set aside a judgment must be filed "within a reasonable time," see Fla. R. Civ. P. 1.540(b) (2007), because the mere passage of time cannot make a
1

Appellee Department of Revenue neither responded to appellant's motion below nor filed an answer brief in this court. Accordingly, pursuant to our order of October 19, 2007, we consider this appeal without benefit of appellee's answer brief. 2

void judgment valid, a motion to vacate a judgment as void may "reasonably" be filed many years after the judgment was entered. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So. 2d 1079, 1082 (Fla. 4th DCA 2000) (citing Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla. 1960)). See also DeClaire v. Yohanan, 453 So. 2d 375, 379 (Fla. 1984) (stating that no time limitation exists for a motion filed under rule 1.540(b) to vacate a void judgment), superseded by rule on other grounds as stated in Lefler v. Lefler, 776 So. 2d 319, 322 n.1 (Fla. 4th DCA 2001); Greisel v. Gregg, 733 So. 2d 1119, 1121 (Fla. 5th DCA 1999); Del Conte Enters. v. Thomas Publ'g Co., 711 So. 2d 1268, 1269 (Fla. 3d DCA 1998). The record does not refute appellant's claims that he was not served with process and had no knowledge that a paternity action had been commenced against him until after the court adjudged him the father of the child. If appellant can carry his burden of proof, his failure to move for relief from judgment until 2007, standing alone, is no bar to his obtaining such relief. See, e.g., Greisel, 733 So. 2d at 1121 (holding that a party's failure to move to vacate a default judgment until six years after learning of entry of the judgment did not preclude challenge to the judgment as void because a void judgment "creates no binding obligation on the parties, is legally ineffective and is a nullity," and "may be attacked at any time"). Because a judgment entered by a court lacking jurisdiction over the person of the party against whom the 3

judgment purports to run is a legal nullity, it may be set aside as void at any time. See Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 32 Fla. L. Weekly D2608, D2610 (Fla. 2d DCA Nov. 2, 2007); M.L. Builders, 769 So. 2d at 1082; Del Conte, 711 So. 2d at 1269 ("It is well settled that a judgment entered without due service of process is void."). The trial court denied the motion below on the ground that appellant had made appearances in 1995 and 1997

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