Victoria Rodriguez v. Angel Rodriguez, Jr.

Third District Court of Appeal State of Florida

Opinion filed August 21, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1817 Lower Tribunal No. 19-1033-K ________________

Victoria Rodriguez, Appellant,

vs.

Angel Rodriguez, Jr., Appellee.

An appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge.

Victoria Rodriguez, in proper person.

Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellee. Before SCALES, MILLER, and BOKOR, JJ.

MILLER, J.

Appellant, the mother, challenges a default final judgment of dissolution of marriage awarding appellee, the father, sole parental responsibility for their fourteen-year-old daughter and ordering the payment of child support. Contrary to the father’s contention, the denial of due process constitutes fundamental error, which can be raised for the first time on appeal. See Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014). Nonetheless, in this case, the undeveloped record compels affirmance. We do so, however, without prejudice to the mother’s ability to file a timely and appropriate motion pursuant to Florida Family Law Rule of Procedure 12.540(b) in the lower tribunal seeking to vacate the final order and convene an evidentiary hearing on her claim that she did not receive notice. See Vasquez v. Nadra, 337 So. 3d 403, 404 (Fla. 3d DCA 2021) (affirming denial of 1.540(b) motion without prejudice to timely filing of “an appropriate rule 1.540(b)(4) motion to allow the trial court, in the first instance, to address her voidness claim”); see also Fla. Fam. L. R. P. 12.440(c) (“[T]he court . . . shall enter an order setting the action for trial, fixing a date for trial, and setting a pretrial conference, if necessary. In the event a default has been entered, reasonable notice of not less than 10 days shall be given unless otherwise required by law.”).

Affirmed, without prejudice.