JAMES O. WILEY, APPELLANT,
v.
KIMBERLY S. WILEY, APPELLEE

Fla. 4th DCA | 1989-07-26
No. 88-1957
HERSEY, C.J., and GARRETT, J., concur.
546 So. 2d 1149 Florida District Court of Appeal, Fourth District (1989) Positive Treatment
Cited by 7 cases

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

A former husband appealed a contempt finding for failure to pay child support, claiming newly discovered evidence (receipts) that would reduce his arrearages. The court reversed and remanded because the trial court erred by failing to conduct an evidentiary hearing on the motion for relief from judgment based on newly discovered evidence.


Holding

The trial court committed reversible error by declining to conduct an evidentiary hearing on the husband's motion for relief from judgment, as the receipts constituting allegedly newly discovered evidence were highly relevant to determining the amount of arrears, whether contempt was warranted, and the purge provision amount.


Headnotes

[1] A motion seeking relief from judgment based on newly discovered evidence is timely if filed within a reasonable time, even if it would be untimely as a motion for reheari…

[2] A trial court errs by denying a motion for relief from judgment based on newly discovered evidence without conducting an evidentiary hearing.

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Key Quotes

“We hold that it was error for the trial court to decline to conduct an evidentiary hearing on the husband's motion for relief from judgment.”

Establishes the core holding that the trial court committed reversible error by not holding a hearing on the newly discovered evidence motion.

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Facts & Procedural History

The trial court approved a Domestic Relations Commissioner's report finding the former husband in contempt for failure to pay child support, setting a…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

The former husband timely appeals an order of the trial court denying a motion which was alternatively styled a Petition for Rehearing (Florida Rule of Civil Procedure 1.530) or in the alternative, Motion to Set Aside Judgment on the basis of newly discovered evidence [Florida Rule of Civil Procedure 1.540(b)]. Appellant’s motion was directed to an order dated September 28,1987, wherein the trial court approved a report of the Domestic Relations Commissioner recommending that the former husband be found in contempt for failure to pay child support, setting the arrears in the amount of $5,863, withholding imposition of sentence, and setting a purge provision.

The appellant’s alternative motion, filed fifteen days after the September 28, 1987 order, would have been untimely insofar as it was a motion for rehearing under Florida Rule of Civil Procedure 1.530. However, since it asked in the alternative for relief from judgment based on alleged newly discovered evidence, it was a timely motion under Florida Rule of Civil Procedure 1.540(b). The gist of that portion of the motion was that the former husband’s newly discovered evidence consisted of receipts showing that he would be entitled to credits totaling $2,410 against the arrearages of $5,863. He further alleged the reason this was not presented to the Domestic Relations Commissioner was that the receipts were in the hands of his prior attorney, and he was unable to obtain them in time for said hearing.

Upon receipt of appellant’s alternative motion, the trial court directed the parties, in effect, to try to work out an agreement as to the credits claimed by the former husband. After a number of months, during which the parties were unable to reach such an agreement, the trial court entered its order denying the appellant’s motion for alternative relief, thus leading to this appeal.

We hold that it was error for the trial court to decline to conduct an evidentiary hearing on the husband’s motion for relief from judgment. Clearly, the subject matter of the motion, the existence of receipts which would tend to show the former husband’s entitlement to a substantial credit against the amount determined to be in arrears, would be extremely relevant to the issues then before the court: the amount of the arrears, whether or not the husband should be found in contempt, and the amount of any purge provision. As to the question of whether this evidence truly constituted “newly discovered evidence which, through the use of due diligence, could not have been produced at the time of the hearing before the Domestic Relations Commissioner” would be a matter for the trial court’s determination upon such an evidentiary hearing. The failure of the trial court to afford the appellant such an evidentiary hearing constitutes reversible error. We therefore reverse and remand for further proceedings consistent with this opinion.

HERSEY, C.J., and GARRETT, J., concur.


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Citator

Cited By

  • Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)
    …on asserted that the husband had testified at trial that a statue was worth $100, while being fully aware that its true value was $35,000. If proven, this allegation would have changed the court’s equitable distribution of assets. In Wiley v. Wiley, 546 So. 2d 1149 (Fla. 4th DCA 1989), the husband’s motion specified receipts showing that he was entitled to a $2,410.00 credit against child support arrear-ages. The husband’s motion in Ross v. Bandi, 566 So. 2d 55, 57 (Fla. 4th DCA 1990), alleged that after the f…
  • Elliott Ross v. Bandi, 566 So. 2d 55 (Fla. 4th DCA 1990)
    …al court to make a fair determination. Therefore, we reverse point III on appeal. We must also reverse as to point IV on appeal, since the trial court failed to grant appellant an evidentiary hearing on his rule 1.540(b) motion. In Wiley v. Wiley, 546 So. 2d 1149 (Fla. 4th DCA 1989), we found it to be reversible error for a trial court to deny the husband an evidentiary hearing on his rule 1.540(b) motion when he alleged “newly discovered evidence, which, could not have been produced at the time of the heari…
  • Crowley v. Crowley, 678 So. 2d 435 (Fla. 4th DCA 1996)
    …d 1386 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989), cert. denied, 493 U.S. 1085, 110 S.Ct. 1147, 107 L.Ed.2d 1051 (1990), an evidentiary hearing is necessary if the essential facts of the fraud are pleaded with specificity. Wiley v. Wiley, 546 So. 2d 1149 (Fla. 4th DCA 1989); Stella v. Stella, 418 So. 2d 1029 (Fla. 4th DCA 1982). Considering the nature of the marital assets distributed to the husband, which consisted almost exclusively of the stock in Dry Cleaning Depot, coupled with the fact that o…

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