## Facts

- Eskell H. Kitchen (husband) and Edith D. Kitchen (wife) divorced under a final judgment of dissolution that set out financial obligations between them.
- After entry of the dissolution judgment, the husband filed a petition to modify the judgment’s financial provisions, alleging a substantial change in circumstances since the divorce.
- The wife filed an answer to the modification petition and raised an affirmative defense asserting that the relief the husband sought was already addressed and controlled by the final judgment.
- The husband did not file a reply to the wife’s affirmative defense.
- About seven months later, the wife moved for judgment on the pleadings, arguing she was entitled to judgment as a matter of law because the husband had not replied to the affirmative defense.
- The trial court granted the wife’s motion and entered judgment on the pleadings against the husband’s modification petition.
- The husband appealed to the District Court of Appeal of Florida, Second District, arguing that a reply was required only if he sought to avoid the affirmative defense by pleading new matter, not when he merely disputed it.

## Issues

1. Under Fla. R. Civ. P. 1.100(a), was the husband required to file a reply to the wife’s affirmative defense when he did not seek to plead new matter in avoidance?
2. Could the wife obtain judgment on the pleadings solely because the husband filed no reply to the affirmative defense?

## Decision

- The Second District reversed the judgment on the pleadings and remanded for further proceedings.
- The court held that a reply to an affirmative defense is required only when the responding party seeks to avoid the defense by alleging new matter in avoidance; a reply is not required for a simple denial or dispute of the defense.
- Because no reply was required on these pleadings, the husband’s failure to reply did not operate as an admission of the affirmative defense and did not justify judgment on the pleadings.

## Legal Principles

- Under Fla. R. Civ. P. 1.100(a), a “reply” is required only if the opposing party seeks to avoid an affirmative defense by alleging new matter.
- A party generally does not file a reply merely to deny an affirmative defense; in that situation, the pleadings close with the answer (subject to any required reply for avoidance).
- Judgment on the pleadings is improper when it rests only on the absence of a responsive pleading that the rules do not require.
- Authorities treating an unanswered affirmative defense as admitted do not control where the rules do not require a reply because no new matter in avoidance is being alleged.

## Conclusion

Kitchen v. Kitchen holds that Florida’s civil rules require a reply to an affirmative defense only when the opposing party intends to plead new matter to avoid the defense. When the party simply disputes the defense, no reply is required, and the failure to file one cannot be used to treat the defense as admitted or to support judgment on the pleadings; accordingly, the Second District reversed and remanded.


Kitchen v. Kitchen, 404 So. 2d 203 (1981)