DOROTHY M. KIRKHAM, APPELLANT,
v.
FRED R. KIRKHAM, APPELLEE
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A successor judge cannot rule on a motion for rehearing unless the original judge is unable or unwilling to do so.
After a final judgment was entered, the wife filed a motion for rehearing. The original judge rotated to a different division, and a successor judge r…
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SCHEB, Chief Judge.
The husband sued to annul his marriage to the wife who counterpetitioned for dissolution. The case was assigned to Judge Grissim H. Walker who presided at the final hearing and entered final judgment on June 13, 1979, granting the annulment and directing disposition of some joint assets. The wife timely moved for rehearing alleging the final judgment contained clerical errors and failed to dispose of some issues raised by the parties. She requested Judge Walker’s office to set a hearing on her motion.
On July 1, under a plan established by the judges of the Twelfth Judicial Circuit, Judge Walker rotated to a different division. The circuit court then assigned the wife’s motion for rehearing to Judge Schaub, Judge Walker’s successor, who corrected the clerical errors but otherwise denied the motion. The wife argues that it was error for a successor judge to rule on her motion for rehearing. We agree.
Unless the original trial judge is unable by reason of death, disability or other equivalent event, or is unwilling by reason of recusation to consider a motion for rehearing, that judge should review and determine the motion. Epperson v. Epperson, 101 So. 2d 367 (Fla.1958). Here, even though the circuit court assigned Judge Walker to another division, his jurisdiction to hear a motion for rehearing continued. See Mason v. Martino, 336 So. 2d 396 (Fla.3d DCA 1976). Under these circumstances Judge Walker should have heard the motion. Balfe v. Gulf Oil Co., 279 So. 2d 94 (Fla.3d DCA 1973).
Accordingly, we vacate the order denying rehearing and remand to the trial court for further proceedings consistent with this opinion.
GRIMES and CAMPBELL, JJ., concur.
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Tompkins Land & Hous., Inc. v. Terryceia Vann White, 431 So. 2d 259 (Fla. 2d DCA 1983)…Hodges to enter the final judgment, he was required to review testimony which he did not have an opportunity to see and hear. Under the circumstances, he should have granted the motion for mistrial or alternative relief. See also Kirkham v. Kirkham, 385 So. 2d 733 (Fla. 2d DCA 1980). Accordingly, we reverse the final judgment and remand to the trial court for further proceedings consistent with this opinion. DANAHY, A.C.J., and SCHOONOVER, J., concur.…
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Paragon Grp., Inc. v. Hoeksema, 475 So. 2d 244 (Fla. 2d DCA 1985)…hite, 431 So. 2d 259 (Fla. 2d DCA 1983). A successor judge who does not hear all the evidence may only enter a judgment on retrial or, where the parties stipulate, on the basis of the record of the prior proceedings. Id. See also Kirkham v. Kirkham, 385 So. 2d 733 (Fla. 2d DCA 1980) (a successor judge may not rule on a party’s motion for rehearing where the original trial judge has been assigned to a different division in the circuit court). Accordingly, we remand to the Honorable Guy W. Spicola, Chief Judge.…
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Chapman Realty Corp. v. Madeira Mgmt., Inc., 414 So. 2d 1180 (Fla. 2d DCA 1982)…ted. A copy of Judge Anderson’s order was mailed to Judge Murphree but no response was received. We find that it was a departure from the essential requirements of law for Judge Anderson to entertain the motion for new trial. In Kirkham v. Kirkham, 385 So. 2d 733 (Fla. 2d DCA 1980), a husband’s petition to annul his marriage was granted and the wife timely moved for rehearing. Before a hearing was set on the wife’s motion, the judge who entered the final judgment of annulment rotated to a different division…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Epperson v. Epperson, 101 So. 2d 367 (Fla. 1958)
- Balfe v. Gulf OIL Company-Latin Am., 279 So. 2d 94 (Fla. 3d DCA 1973)
- Mason v. Martino, 336 So. 2d 396 (Fla. 3d DCA 1976)