## Facts

- Robert Dolan (former husband) and Kim Dolan (former wife) divorced under a final judgment that included Robert’s child-support obligation.
- In March 2009, Robert filed a petition to modify his child-support obligation under the final judgment.
- In September 2009, Kim filed her first motion to dismiss the modification petition for failure to state a claim.
- Kim’s first motion to dismiss addressed the petition on the merits and did not assert insufficiency of process, insufficiency of service of process, or any challenge to notice or personal jurisdiction based on service.
- The trial court denied Kim’s first motion to dismiss.
- In September 2010, Kim filed a second motion to dismiss, asserting for the first time that Robert had not properly served her with the modification petition.
- The trial court denied the second motion to dismiss, but later ordered Robert to properly serve an amended petition within five days.
- Robert attempted service multiple times but did not complete service within the five-day deadline.
- The trial court dismissed Robert’s modification petition with prejudice for failure to comply with the service requirement.
- Robert appealed, arguing Kim waived any objection to insufficient service by failing to raise it in her first motion to dismiss.

## Issues

1. Whether a party waives the defense of insufficiency of service of process by filing an initial merits-based motion to dismiss without raising the service defense, and then raising it later in a second motion.
2. Whether, after that waiver, the trial court could require re-service within a short deadline and dismiss the modification petition with prejudice when service was not completed by the deadline.

## Decision

- The Third District Court of Appeal reversed the order dismissing the former husband’s modification petition with prejudice.
- The court held the former wife waived any objection to insufficiency of service of process by not raising it in her first motion to dismiss, which attacked the petition on the merits.
- The court found no support in the record for the trial court’s later order requiring service within five days and then dismissing with prejudice based on noncompliance.
- The case was remanded for further proceedings on the modification petition.

## Legal Principles

- Under Florida Rule of Civil Procedure 1.140(b) and 1.140(h)(1), defenses including insufficiency of process and insufficiency of service of process must be raised in the first responsive pleading or the first motion directed to the pleading; otherwise, they are waived.
- When a party appears and seeks dismissal on the merits without timely asserting an available service-of-process defense, that party cannot later rely on defective service as a basis to dismiss the action.
- After waiver of the service-of-process defense, the trial court may not revive that defense by conditioning continuation of the case on new service and then dismissing the case based on failure to meet that condition.
- A dismissal with prejudice is not a proper remedy for a waived service-of-process objection.

## Conclusion

In Dolan v. Dolan, the Third District Court of Appeal reversed a dismissal with prejudice of a former husband’s child-support modification petition because the former wife waived the defense of insufficient service of process by omitting it from her first, merits-based motion to dismiss; once waived, defective service could not justify a later order requiring re-service and a subsequent dismissal for failure to complete service within a court-imposed deadline.


Dolan v. Dolan, 81 So. 3d 558 (2012)