Tata v. Tata

CONNER, J.,

dissenting.

I respectfully dissent from the affir-mance of the trial court. My view of the record on appeal leads me to conclude the trial court did not properly consider the issues of laches and waiver raised by the appellant/grandmother in opposing the ap-pellee’s/father’s arguments that the custody order awarding the appellant/grandmother custody of the child is void for lack of notice of the proceedings and personal service. As the appellant/grandmother accurately argues, the right to contest a personal jurisdiction and notice can be waived by failure to assert the procedural defect in subsequent proceedings. Johnson v. DOR, 973 So.2d 1236, 1239 (Fla. 1st DCA 2008) (“We have held, moreover, that, although a court has already entered judgment, a party waives the right to contest personal jurisdiction by entering a general appearance without contesting personal jurisdiction at the same time.”); see Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (holding party lost right to contest default final judgment on grounds of defective service of process by entering general appearance without simultaneously contesting service of process or raising issue of personal jurisdiction); Starks v. Howard, 611 So.2d 52, 53-54 (Fla. 3d DCA 1992) (holding party alleging he never received notice of paternity action waived right to challenge final judgment of paternity on grounds of insufficiency of process by admitting paternity in subsequent proceedings). It appears to me, from the record on appeal, that is the situation in this ease. I would reverse the order vacating the 2008 custody order.