ERICA N. FLUHART
v.
BRANDON L. RASMUSSEN
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Erica Fluhart appeals a final judgment of dissolution of marriage adopted from a General Magistrate's report. The Fifth District Court of Appeal affirms the judgment but recedes from precedent holding that failure to move to vacate under Florida Family Law Rule 12.490(e)(3) deprives the court of appellate jurisdiction; the court now holds such failure constitutes a failure to preserve issues for appeal rather than a jurisdictional defect.
The court affirms the final judgment on the merits but recedes from Gatchell v. Kryvosheia to the extent that case held the failure to move to vacate constitutes a jurisdictional bar to appellate review. The failure to file the motion to vacate constitutes a failure to preserve issues for appellate review rather than a jurisdictional defect, but Fluhart's failure to preserve her claimed errors regarding time-sharing and parental responsibility requires affirmance of the judgment.
[1] A party's failure to file a motion to vacate a general magistrate's recommended order, which has been adopted by the trial court, results in a failure to preserve issues…
[2] An appellate court may recede from a prior holding that incorrectly determined it lacked jurisdiction.
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Join FLexlaw to unlock all legal intelligence“On further consideration, we find our conclusion in Gatchell that we lacked jurisdiction to be error; and we now specifically recede from that portion of the opinion.”
Establishes the court's recession from the jurisdictional holding in Gatchell
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a final judgment of dissolution of marriage adopting the General Magistrate's report and recommended judgment following eviden…
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KILBANE, J.
Erica Fluhart timely appeals the final judgment of dissolution of marriage rendered by the trial court in which the court accepted and adopted the report and recommended final judgment of dissolution of the parties’ marriage submitted by the General Magistrate (“GM”) following evidentiary hearings. We
affirm; but we have elected to consider this matter en banc to recede, in part, from our decision in Gatchell v. Kryvosheia, 370 So. 3d 374 (Fla. 5th DCA 2023).
Here, after the trial court entered its order adopting the GM’s report and recommended final judgment of dissolution of marriage, Fluhart timely filed her notice of appeal without first moving under Florida Family Law Rule of Procedure 12.490(e)(3) to vacate the order. In Gatchell, under sufficiently similar circumstances, our court held that an appellant’s failure to file a motion to vacate the recommended order under this rule constituted a failure to preserve issues for appellate review. Id. at 375–76. We dismissed the appeal, concluding that the appellant’s failure to preserve issues for appellate review by filing this motion constituted a failure to invoke our appellate jurisdiction. Id.
On further consideration, we find our conclusion in Gatchell that we lacked jurisdiction to be error; and we now specifically recede from that portion of the opinion. We do, however, affirm the instant final judgment because, under Gatchell, Fluhart’s failure to move to vacate the GM’s recommended final judgment adopted by the trial court resulted in a failure to preserve for appellate review her claimed error involving the court-ordered time-sharing and shared parental responsibility of the parties’ minor child.
AFFIRMED.
EDWARDS, C.J., and MAKAR, WALLIS, LAMBERT, JAY, EISNAUGLE, HARRIS, SOUD, BOATWRIGHT, MACIVER, and PRATT, JJ., concur. _____________________________