CECILIA A. JOHNSON, PETITIONER,
v.
HON. RALPH B. FERGUSON, JR., JUDGE OF THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA, RESPONDENT
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Johnson sought a writ of mandamus to prevent the circuit court from ordering the immediate sale of the former marital home. The Third District Court of Appeal held that the trial court lacked jurisdiction to enter the sale order more than one month after the final judgment of dissolution and after notice of appeal had been filed, and the order was not authorized under Florida appellate procedure rules.
The trial court lacked jurisdiction to enter the order compelling immediate sale of the home because the order was entered more than one month after the final judgment of dissolution and after notice of appeal was filed. The order was not an order contemplated by Florida Rules of Appellate Procedure rule 9.600(c), which permits lower courts to retain jurisdiction to enter orders necessary to protect the welfare and rights of parties pending appeal.
[1] A trial court lacks jurisdiction to enter an order compelling the sale of a marital home after a notice of appeal has been filed in the dissolution proceeding.
[2] A trial court's order compelling the sale of a marital home is not an order necessary to protect the welfare and rights of any party pending appeal under rule 9.600(c), F…
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Join FLexlaw to unlock all legal intelligence“We grant the petition for writ of mandamus because we find the trial court lacked jurisdiction to order an immediate sale of the home. The order of the trial court was entered more than a month after the final judgment of dissolution and after the notice of appeal had been filed.”
Establishes the core holding that the trial court lost jurisdiction to enter new orders after the final judgment and notice of appeal
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Join FLexlaw to unlock all legal intelligencePursuant to a final judgment dissolving the marriage, Johnson was awarded the right to remain in the marital home until the minor child reached age ei…
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BASKIN, Judge.
In this petition for writ of mandamus, we are asked to order respondent, Honorable Ralph B. Ferguson, Jr., to rescind his order compelling the immediate sale of the former marital home of the parties. We find the circuit court judge exceeded his jurisdiction in entering the order and grant the petition for writ of mandamus.
Under the terms of a final judgment dissolving the marriage, case number 78-16336 FC (04), petitioner was awarded the right to remain in the marital home until the minor child reached the age of eighteen. The husband and wife were each ordered to pay half the mortgage payments on the property, which the parties now own as tenants in common.
Neither party paid his share of the mortgage payments, and a final judgment foreclosing the mortgage was entered in Oritani Savings and Loan Association v. James B. Johnson and Cecilia A. Johnson, case number 79-15275. The home was ordered to be sold in accordance with the mortgage foreclosure proceedings. A stay of the foreclosure sale has been granted until May 23, 1980.
The trial court, in the dissolution proceeding, entered an order compelling the showing of and the immediate sale of the former marital home. It is this order petitioner seeks to have rescinded on the ground that her right to the property vested upon rendition of the final judgment of dissolution.
We grant the petition for writ of mandamus because we find the trial court lacked jurisdiction to order an immediate sale of the home. The order of the trial court was entered more than a month after the final judgment of dissolution and after the notice of appeal had been filed. The trial court, therefore, lacked jurisdiction to enter the order compelling sale. Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978) and Liberman v. Rhyne, 248 So. 2d 242 (Fla. 3d DCA 1971). Respondent relies Upon rule 9.600(c), Florida Rules of Appellate Procedure, which allows the lower court to retain jurisdiction to enter and enforce orders necessary to protect the welfare and rights of any party pending appeal. We hold that the order requiring the sale of the home is not an order within the contemplation of the rule. See generally Horton v. Horton, 330 So. 2d 69 (Fla. 1st DCA 1976) and Simon v. Simon, 293 So. 2d 780 (Fla. 3d DCA 1974).
We note that the trial court apparently sought to protect the parties from a loss of their marital home under the final judgment of foreclosure. Although we grant the relief sought by petitioner, we realize that the actions of the parties in failing to make their mortgage payments will result in the loss of their equity in the home unless immediate action is taken in other pending cases.
For the foregoing reasons, we direct the trial court to vacate the order compelling the parties to sell the property. We do not issue the final writ of mandamus because we believe the trial court will act in accordance with the decision of this court.
Because the foreclosure sale is presently set for May 23,1980, we decline to entertain petitions for rehearing. This opinion is final.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)…e trial court’s order. Of course, reliance on this rule is not appropriate to justify trial court orders not contemplated by the rule on the theory that they are made to protect the welfare and rights of the parties. See, e. g., Johnson v. Ferguson, 383 So. 2d 715 (Fla. 3d DCA 1980).…
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Floyd v. Floyd, 500 So. 2d 317 (Fla. 2d DCA 1986)…se they are an attempt to modify the final judgment, which the trial judge had no jurisdiction to do. A trial judge is without jurisdiction to alter an order or judgment once an appeal from that order or judgment has been filed. Johnson v. Ferguson, 383 So. 2d 715 (Fla. 3d DCA 1980); Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978). We point out that our reversal of the orders under review means that the rights and obligations of the parties determined by the final judgment are governed by the provisions…
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Adams v. Adams, 676 So. 2d 526 (Fla. 4th DCA 1996)…rder while an appeal of that order was pending. Id. at 318. The court reversed those orders stating: A trial judge is without jurisdiction to alter an order or judgment once an appeal from that order or judgment has been filed. Johnson v. Ferguson, 383 So. 2d 715 (Fla. 3d DCA 1980); Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978). Id. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. GLICKSTEIN and SHAHOOD, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haskell Liberman and Leatrice Liberman v. Rhyne, 248 So. 2d 242 (Fla. 3d DCA 1971)
- Simon v. Simon, 293 So. 2d 780 (Fla. 3d DCA 1974)
- Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978)
- Horton v. Horton, 330 So. 2d 69 (Fla. 1st DCA 1976)