JOSEPH ARTHUR WIENDL
v.
STEPHANIE WIENDL
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The appellate court reversed a trial court's denial of a motion to vacate a contempt order. The court found that the trial court erred by not holding a mandatory hearing on the motion to vacate, as required by Florida Family Law Rule of Procedure 12.491(f).
Yes, the trial court erred in denying the motion to vacate without a hearing. The email sent by the Former Husband's counsel was sufficient to trigger the mandatory hearing requirement under Rule 12.491(f).
[1] A party's application for a hearing on a motion to vacate under Florida Family Law Rule of Procedure 12.491(f) may be made by referencing the rule in correspondence to th…
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Join FLexlaw to unlock all legal intelligence“Any party affected by the order may move to vacate the order by filing a motion to vacate within [ten] days from the date of entry. . . . A motion to vacate the order shall be heard within [ten] days after the movant applies for hearing on the motion.”
This quote states the rule that the appellate court found was violated by the trial court.
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Join FLexlaw to unlock all legal intelligenceFollowing a final order of dissolution and a child support obligation, the Former Wife filed a motion to hold the Former Husband in contempt for non-p…
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SLEET, Judge. A final order of dissolution of the marriage between Joseph Wiendl, the Former Husband, and Stephanie Wiendl, the Former Wife, was rendered on June 22, 2017. The final judgment required the Former Husband to pay child support. On January 23, 2019, the Former Wife filed a motion seeking to hold the Former Husband in contempt for failing to pay that obligation and for not complying with prior orders of the court entered to enforce that obligation. On July 10, 2019, following a hearing
- 2 - before a hearing officer, the trial court entered an order adopting the report and recommendation in which the hearing officer found the Former Husband to be in willful indirect civil contempt and to be in arrears on his child support obligation in the amount of $63,411.
The trial court also found that the Former Husband had the ability to pay his child support obligation and set a purge amount at $4000.
On July 19, 2019, the Former Husband filed a motion to vacate the trial court's July 10 order. The Former Husband now challenges the trial court's order denying his motion to vacate. Because the trial court erred in denying the motion without a hearing, we reverse and remand for further proceedings.
In his motion to vacate, the Former Husband cited Florida Family Law Rule of Procedure 12.491(f), which provides in pertinent part as follows: "Any party affected by the order may move to vacate the order by filing a motion to vacate within [ten] days from the date of entry. . . . A motion to vacate the order shall be heard within [ten] days after the movant applies for hearing on the motion." (Emphasis added.)
It is undisputed that in filing the motion to vacate, the email sent by counsel for the Former Husband to the trial judge's judicial assistant stated as follows: Attached please find the MOTIONS TO VACATE THE ORDER OF THE COURT DATED JULY 9, 2019 WHICH RATIFIED THE REPORT OF THE CHILD SUPPORT HEARING OFFICE[R] DATED JULY 5, 2019 PURSUANT TO FLA. FAM.
L. R. P. 12.491(F).
Pursuant to Rule 12.491(f) a motion to vacate shall be heard within 10 days after the movant applies for a hearing on the motion. Please advise. (Emphasis added.)
This verbiage was sufficient to trigger the plain language of the rule that requires the trial court to hold a hearing on the motion within ten days if "the movant
- 3 - applies for hearing on the motion." See Fla. Fam.
L. R. P. 12.491(f) (emphasis added).
Nothing in the rule explains how a movant is to "apply" for a hearing, but there would be no reason for the Former Husband's email to the judge's judicial assistant to reference subsection (f) of the rule and ask "[p]lease advise" if he was not seeking a hearing on the motion. The Former Wife argues on appeal that "there is no evidence that the Former Husband or his counsel ever followed up with the court to set a hearing as is their responsibility to do." But the rule does not require a certain number of attempts before it can be said that the movant has applied for a hearing. While, of course, it would be best practices to follow up and confirm that a hearing had been set, the plain language of the rule simply does not require such. And since the rule uses the word "shall," the hearing was mandatory once counsel referenced the rule and asked, "Please advise."
Accordingly, we reverse the trial court's order denying the Former Husband's motion to vacate the prior contempt order and remand with instructions that the trial court hold a hearing on the motion.
Reversed and remanded. SILBERMAN and ATKINSON, JJ., Concur.