MARIN v. MARIN (2003)

Orlando Marin appeals the entry of a partial final judgment of dissolution of marriage, and appellee Maria E. Marin cross-appeals the entry of the final judgment.   We reverse the portion of the partial final judgment in which the trial court reserved jurisdiction to award alimony and attorney's fees because these claims were never pled, and affirm the judgments in all other respects.

The parties married on March 17, 1972 and divorced on September 18, 1979 in Cuba. On September 22, 1979, the parties remarried in Cuba.¹ In 1980, the parties relocated to Florida, resided together until July of 1987, and became the parents of Jeanette Melissa Marin.   In 1996, the husband married Rosa Caridad Marin.

On January 28, 2002, the trial court entered a Partial Final Judgment of Dissolution of Marriage, dissolving the parties' marriage and reserving jurisdiction on the issues of distribution of marital assets, child support, retroactive child support, alimony, retroactive alimony, attorney's fees, costs and suit monies.   Prior to the entry of the partial final judgment, the trial court struck the husband's pleadings and entered a default judgment against him.   On February 12, 2002, the trial court entered a Final Judgment of Dissolution of Marriage.

 A party against whom a default is entered can only be said to have admitted the well-pleaded facts and to have acquiesced in the relief specifically prayed for.   See Williams v. Williams, 227 So.2d 746, 748 (Fla. 2d DCA 1969).   See also Freeman v. Freeman, 447 So.2d 963, 964 (Fla. 1st DCA 1984)(it is error to award relief that is not sought).

The wife in this case did not plead entitlement to alimony or attorney's fees, and merely prayed for divorce and pleaded grounds in support.   The trial court thus exceeded its jurisdiction.   To hold otherwise deprives the husband of due process.   See Williams, 227 So.2d at 748.

Affirmed in part, reversed in part and remanded.

FOOTNOTES

1.   The husband, however, alleged that the parties never remarried and that their marriage dissolved in Cuba on September 18, 1979.

RAMIREZ, J.