PENNY MCLEMORE, APPELLANT,
v.
KLENTON MCLEMORE, APPELLEE
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Penny McLemore appeals an order granting her ex-husband's motion for rehearing in a divorce case. The appellate court reversed, holding that a successor judge cannot review and correct errors made by a predecessor judge, and that such corrections are properly left to appellate review.
A successor judge may not correct errors of law committed by a predecessor judge and cannot reverse or modify the predecessor's final orders and decrees on the merits. Corrections for errors must be pursued through appellate review procedures.
[1] A successor trial judge may rule upon a matter overlooked or omitted by the predecessor judge, but may not correct errors committed by the predecessor.
[2] A successor trial judge cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor.
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Join FLexlaw to unlock all legal intelligence“A successor trial judge, under proper circumstances, may rule upon a matter overlooked or omitted by the predecessor judge, but may not correct errors committed by the predecessor”
Establishes the core distinction between a successor judge's proper and improper authority
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Join FLexlaw to unlock all legal intelligenceJudge Bower entered a final judgment in the parties' dissolution of marriage on March 17, 1985, and then withdrew from the case. Judge Costello was su…
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BARFIELD, Judge.
Penny McLemore appeals from an order granting Klenton T. McLemore’s amended motion for rehearing. We reverse.
Judge Bower entered final judgment in the parties’ dissolution of marriage proceeding on March 17, 1985, and thereafter withdrew from further proceedings. Judge Costello was subsequently assigned to the case and ruled on Mr. McLemore’s amended motion for rehearing. Judge Costello’s order granting the rehearing was appealed to this court. No other ruling has been appealed.
The appellee asserted three bases for granting rehearing, all of which were questionably proper for consideration by the judge who first heard the case and not proper for a successor trial judge to consider. The first contention in the amended motion was that the husband had no ability to pay the exorbitant amount of lump-sum alimony. The second contention was that the husband did not have the ability to pay the exorbitant amount of periodic alimony and child support and that the wife was young and healthy and could support herself. The third contention was that the judgment failed to recognize the husband’s special equity in selected properties resulting from his extraordinary contributions. These assertions generally reargue the case but collectively may assert that the rulings were not supported by competent substantial evidence. It is arguable that this issue may be asserted in a motion for rehearing by reason of the language of Florida Rules of Civil Procedure 1.530(e),1 but the issue cannot be submitted to a trial judge who did not try the case. A successor trial judge, under proper circumstances, may rule upon a matter overlooked or omitted by the predecessor judge, but may not correct errors committed by the predecessor, Groover v. Walker, 88 So. 2d 312 (Fla.1956).
The order granting a rehearing held that there was no substantial competent evidence to support the judgment, the judgment left the husband with insufficient assets from which to pay alimony, the judgment was “not supported by the law,” and there was no way to correct the judgment. The function undertaken by Judge Costello was properly left to appellate review. In the language of the Supreme Court in Gro-over at p. 313:
The Court is committed to the general proposition that a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor. There being no other issue properly presented to this court for review, the order granting rehearing is REVERSED with directions that the final judgment be reinstated, and the parties may proceed in accordance with the applicable rules of appellate procedure.
SHIVERS and NIMMONS, JJ., concur. . See discussion in Trawick, Fla.Prac. and Proc., § 26-1.
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Marsh & McLennan, Inc. v. Aerolineas Nacionales del Ecuador, 530 So. 2d 971 (Fla. 3d DCA 1988)…here is a narrow exception to this. "A successor judge, under proper circumstances, may rule [on rehearing] upon a matter overlooked or omitted by the predecessor judge, but may not correct errors committed by the predecessor.” McLemore v. McLemore, 520 So. 2d 637, 638 (Fla. 1st DCA 1988) (emphasis added). See also Groover v. Walker, 88 So. 2d 312 (Fla.1956); Paragon Group, Inc. v. Hoeksema, 475 So. 2d 244 (Fla. 2d DCA 1985); Doane v. Rapp, 453 So. 2d 1197 (Fla. 3d DCA 1984); Better Construction, Inc. v. Cama…
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Berrien v. State, 189 So. 3d 285 (Fla. 1st DCA 2016)…his predecessor.” Groover v. Walker, 88 So. 2d 312, 313 (Fla.1956); see also Hewlett v. State, 661 So. 2d 112, 115 (Fla. 4th DCA 1995) (“[0]ne circuit court judge cannot reverse the prior order of another circuit court judge”); McLemore v. McLemore, 520 So. 2d 637, 638 (Fla. 1st DCA 1988) (citing Groover). An exception to this general rule may arise, allowing a successor judge to modify or reverse a predecessor judge’s order, if “there exists' some special circumstances such as mistake or fraud upon‘the cour…
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Dortheanne Roberts v. Roberts, 128 So. 3d 856 (Fla. 1st DCA 2013)…e. The Former Wife then abandoned her motion by filing this appeal, see Fla. R. App. P. 9.020(h)(3), which seems a reasonable decision in view of the fact that a successor judge cannot correct a predecessor’s errors. See, e.g., McLemore v. McLemore, 520 So. 2d 637, 638 (Fla. 1st DCA 1988). This Court has appellate jurisdiction. Id. The Former Wife asserts a number of valid concerns with the final judgment, including: an inconsistent parental responsibility allocation between the final judgment and a parentin…
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- Groover v. Walker, 88 So. 2d 312 (Fla. 1956)