HomeMy WebLinkAbout2262 CENTER V. CEI~_ . ~R ~
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Both parents are to be commended for their concern and devotion to the
welfare of their children. Both apparently have contributed to the rehab-
ilitation of the children and from the facts gleaned from their respective
affidavits, it appears their efforts were successful. The Court can under-
stand appreciate the wife's determination to do what she considered most
impurtant. In her affidavit she states that she could not conduct the battle
against drugs and the legal proceedings instituted against her husband at (
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the same time without prejudicing either cause. That well may be the ~
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case, however, there were other steps that could have been taken by the
wife or her counsel which would liave pravented dismissal of her petition
for lack of prosecution. There was pending a motion to dismiss filed by
the husband which for one year was not set down for hearing. The Wife's
attendance would not have been necessary at a hearing on this motion.
Wife's counsel made no effort to have this motion set down for hearing.
No motion for continuance was ever filed by the wife or her counsel so the
Court had no opportunity to grant an extension of time. Not until more than
one year had passed and the Husband had moved for dism issal for lack of
prosecution did the wife bring to the Court's attention her problem.
The law in Florida is clear that if no affirmative action_ in the prose-
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~ cution of a cause is taken within a period of one yea.r, upon motion of any
interested party, the Court must dismiss the action for want of prosecution
unless there has been good cause shown why the action should remain pending.
Koppers Company, Inc. v. Victorire Develop~nent Corp. , Fla. , 284 So. 2d
193. Determination of the "good cause sufficient to prevent a dismissal for
- lack of prosecution requires the exercise of sound judicial discretion. However,
this cannot be an arbitrary or unrestrained discretion. Accepting the Wife's
affidavit at face value and resolving all conflicts between her affidavit and
~ the affidavit submitted by the husband in her favor, the fact remains that the
Wife could and should have taken some action to preserve her cause of action.
The Court concludes that the Wife has failed to sho~v good cause why the action
should remain pending, therefore, the Husband's motion to dismiss fo: failure
to prosecute be and the same is hereby granted and the Wife's petition is dis-
missed.
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