SALINAS v. PASCARIELLO (2016)

Appellant Manuel Salinas appeals a trial court order denying his verified motion to quash service and to set aside the order granting Appellee Kristin Pascariello's motion to modify timesharing and child support. Because Salinas's counsel's general appearance did not constitute waiver of service, we reverse.

The parties were divorced by entry of an April 28, 2010 final judgment for dissolution of marriage that ratified the parties' mediation agreement. On April 20, 2011, Pascariello filed a petition to modify the final judgment's parenting plan. The trial court granted that modification petition on June 7, 2011.

Although the record reflects that the summons to serve Salinas with Pascariello's petition was issued on April 20, 2011, Salinas asserts that he was never served with that petition. Salinas asserts under oath that he learned of the modification order only on June 2, 2014, when his attorney reviewed the trial court's files on this case. In order to conduct such review, Salinas's attorney filed a general notice of appearance.

On June 12, 2014, Salinas filed his verified motion to quash service and set aside the modification order. On February 17, 2015, without conducting a hearing on the motion, the trial court entered an order denying Salinas's motion. In relevant part, the order reads as follows: “Denied, as movant's counsel filed a General Appearance on 6/2/14.” This appeal follows.

A ruling on a motion to quash service is reviewed de novo. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007).

Salinas's motion to quash service never received a hearing, but was instead “denied, as movant's counsel filed a General Appearance on 6/2/14.” While a general appearance could waive objections relating to the trial court exercising personal jurisdiction over a defendant, an after-the-fact general appearance does not waive a defect in the service of process related to a supplemental modification petition. See DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So.3d 934 (Fla. 2d DCA 2012). In other words, whether Salinas's counsel made a general appearance in 2014 has no bearing on whether Salinas was given reasonable notice and an opportunity to be heard with respect to the Pascariello's modification petition.

Thus, we reverse the trial court's order denying Salinas's Motion to Quash Service and other assorted relief, and remand the motion for a hearing to allow the trial court to adjudicate the motion on its merits.¹

Reversed and remanded.

FOOTNOTES

1.  We express no opinion on the merits of Salinas's motion.

SCALES, J.