CHARLES COX, APPELLANT,
v.
DONNA COX, APPELLEE

Fla. 4th DCA | 1986-07-02
No. 85-2682
GLICKSTEIN and DELL, JJ„ concur.
490 So. 2d 1051 Florida District Court of Appeal, Fourth District (1986)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Charles Cox appeals non-final orders in his divorce proceedings, challenging the trial court's handling of temporary relief orders, service of notice, and referrals to a general master. The appellate court affirms most of the trial court's rulings but vacates one order for procedural non-compliance with the ten-day rule for entering orders on a master's report.


Holding

The court held that: (1) two grounds for reversal were waived because not raised below; (2) minor misspelling of counsel's name does not invalidate service absent a showing of prejudice when the correct address was used and a prima facie certificate of service exists; (3) express party agreement for master referrals is required only when the master determines all issues of fact and law, not for limited specific matters; and (4) the trial court violated the ten-day rule by entering the order approving the master's report too early, necessitating vacation of that order.


Headnotes

[1] Issues not raised in the trial court are waived and may not be considered on appeal.

[2] A certificate of service is prima facie proof of service, and proof of mailing raises a presumption of receipt.

Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“a certificate of service is "prima facie proof" that service has been made in compliance with the rules”

Establishes the standard for validating service of notice and that minor defects like misspelling of counsel's name do not invalidate service absent prejudice.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Charles Cox sought to set aside orders granting temporary relief to his wife in dissolution of marriage proceedings. The trial court referred certain …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HERSEY, Chief Judge.

HERSEY, Chief Judge.

Charles Cox seeks review of non-final orders entered in dissolution of marriage proceedings.

Two of appellant’s grounds for seeking-reversal of his motion to set aside the order granting temporary relief to the wife were not raised below and consequently may not appropriately be considered here. Ferris v. Ferris, 417 So. 2d 1066 (Fla. 4th DCA 1982) (where parties failed to object below to master’s noncompliance with rule 1.490, objections were waived for appellate purposes); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958) (issue of lack of compliance with rule regarding filing of motion for summary judgment and supporting affidavits was not preserved for appellate review in absence of timely objection below).

Appellant’s third ground, improper notice due to a slight misspelling of his counsel’s name, is without merit. Rule 1.080(f), Florida Rules of Civil Procedure, provides that a certificate of service is “pri-ma facie proof” that service has been made in compliance with the rules. See also Gavin v. Gavin, 456 So. 2d 535 (Fla. 1st DCA 1984); Scott v. Johnson, 386 So. 2d 67 (Fla. 3d DCA 1980). In the Scott case a certificate of service which read: “ ‘It is hereby certified that a true copy of this Order was mailed to each attorney of record and party appearing without counsel on the above date' ” was found sufficient to constitute prima facie evidence of mailing, and “proof of mailing raises the presumption that the mail was received....” 386 So. 2d at 69 (citations omitted). We hold that a stronger showing of valid service has been made in the present case than in Scott, since it was shown that notice was sent to the correct street address, including suite number. Under these circumstances a minor misspelling of counsel’s name (idem sonans) is not a sufficient basis for invalidating notice unless prejudice is shown.

Appellant also seeks to reverse certain orders of referral to a general master. Once objection was made the trial court vacated the prospective operation of the referrals but left intact matters already completed. We conclude that an express agreement of the parties with respect to referral to a master is required only where the master is given authority to determine “all issues, both fact and law.” Data Lease Financial Corp. v. Blackhawk Heating & Plumbing Co., 325 So. 2d 475, 477 (Fla. 4th DCA 1975). See also Little v. Little, 325 So. 2d 424 (Fla. 3d DCA), cert. denied, 341 So. 2d 1083 (Fla.1976). The instant case does not present such a situation, since only specific, limited matters were referred to the master for determination. Therefore, appellant’s failure to timely object constituted a waiver of that right with regard to completed referrals.

Finally, appellant correctly contends that the trial court erred in entering an order on the general master’s report earlier than ten days after filing of the report, even though the order was entered subject to timely exception. Berkheimer v. Berkheimer, 466 So. 2d 1219 (Fla. 4th DCA 1985). We therefore vacate the order of approval. However, exceptions having been filed and heard, there is no impediment at present to reentry of the order approving the master’s report, taking into account disposition of the objections.

Accordingly we affirm in part, reverse in part and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GLICKSTEIN and DELL, JJ„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw