VIERA v. VIERA (2025)

Appellant Fred Viera, Jr. (“Husband”) appeals a November 8, 2024 final order that, on the trial court's own motion, dismissed the underlying marital dissolution action for lack of prosecution (“Dismissal Order”). Husband argues that, prior to entry of the Dismissal Order, the parties were not served with the notice required by Florida Family Law Rule of Procedure 12.420, the rule governing case dismissals in family matters.¹

Because the record plainly reflects that the parties were not served with the notice required by rule 12.420(d) prior to the lower court's entry of the Dismissal Order, the parties’ due process rights were violated; hence, we are compelled to reverse the Dismissal Order and remand with instructions to reopen the case.² See Reed v. Reed, 386 So. 3d 574, 574 (Fla. 4th DCA 2024) (“The court dismissed the case pursuant to Family Law Rule of Procedure 12.420. Although there is a dearth of case law construing rule 12.420, the rule is nearly identical to Florida Rule of Civil Procedure 1.420(e), making the construction of rule 1.420(e) instructive.”); Gomes v. Tamiami Youth Basketball, Inc., 49 Fla. L. Weekly D1705, 2024 WL 3800625 (Fla. 3d DCA Aug. 14, 2024) (“The record plainly reflects, and [Appellee] does not refute, that Appellants were not provided the notice required under rule 1.420(e). Hence, to the extent that the circuit court's effective dismissal of this case was based on rule 1.420(e), a lack of notice to the parties violated Appellants’ right of due process. We reverse the Final Order and the Rehearing Denial Order and remand this case to the trial court to enter an order reopening the case and to conduct further proceedings not inconsistent with this opinion.”) (citation omitted).

Reversed and remanded with instructions.

FOOTNOTES

1.   The rule provides:(d) Failure to Prosecute. In all actions in which it appears on the face of the record that for a period of 10 months, no activity by filing of pleadings or order of court has occurred, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of the notice, and no record activity occurs within 60 days immediately following the service of the notice, and if no stay was issued or approved before the expiration of the 60-day period, the action must be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year is not sufficient cause for dismissal for failure to prosecute.Fla. Fam. L. R. P. 12.420(d) (emphasis added).

2.   In Viera v. Viera, 365 So. 3d 427, 431 (Fla. 3d DCA 2023) (Viera I), this Court affirmed a final judgment of dissolution of marriage, except as to the lower court's disposition of the parties’ marital home and the calculation of retroactive child support due to the wife. Viera I remanded with directions that the trial court address these issues. Id. Given the lack of record activity below following this Court's remand in Viera I, it appears that these issues may remain pending in the lower proceeding.

PER CURIAM.