Toledo v. Torres
The trial court denied, without an evidentiary hearing, a husband's rule 12.540(b) motion to vacate a default final judgment of dissolution, reasoning that he had not first sought relief from the underlying clerical default. The Third District reversed, holding that even though the default itself stands (because of lack of due diligence in attacking it), the separate allegations that the wife falsely told him she had abandoned the petition and instructed him not to attend trial stated a colorable entitlement to relief from the final judgment requiring an evidentiary hearing.
Key facts
- Husband failed to appear at trial in a dissolution of marriage case, resulting in a default final judgment in favor of the wife.
- Husband filed a rule 12.540(b) motion to vacate the default final judgment, alleging the wife falsely told him she had abandoned the petition and instructed him not to attend trial.
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Why it matters
The opinion draws a useful line between relief from a clerical default (which may be barred by lack of due diligence) and relief from the resulting final judgment based on adverse-party misconduct — the latter survives… — full analysis with a trial
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