MARTHA M. MARTINEZ, APPELLANT,
v.
MIGUEL A. MARTINEZ, APPELLEE
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The trial court erred in vacating a modification order based on insufficient allegations of fraud on the court.
Following a modification order in a marriage dissolution case, the former husband filed a motion to vacate alleging fraud on the court. The trial cour…
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PER CURIAM.
The trial court entered an order modifying a previously entered final judgment dissolving a marriage. In the modification order it increased child support, made the alimony award permanent and granted other relief to the former wife. Thereafter, the former husband filed a motion for rehearing. He then filed a motion to vacate pursuant to Florida Rule of Civil Procedure 1.540(b) alleging fraud on the court.1 This was met by a motion to strike alleging that the motion to vacate contained insufficient allegations to establish a fraud on the court. The trial court denied the motion to strike, took evidence and vacated the order of modification.2 We find that the trial court erred in entertaining the motion to vacate as insufficient grounds were alleged to establish fraud on the court under the reasoning in Myers v. Myers, 652 So. 2d 1214 (Fla. 5th DCA 1995); Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994); Poquette v. Poquette, 425 So. 2d 1203 (Fla. 2d DCA 1983). We therefore reverse the order granting the motion to vacate with directions to reinstate the original order of modification dated April 11, 1994, without prejudice to either party filing any additional motions to modify this order of modification because of a subsequent change in circumstances.
Reversed with directions.
. Most of the facts relied on occurred subsequent to the date of the order of modification.
. The appellee, during oral argument, conceded error in the vacation of the award of increased child support.
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Blakey v. Kendall Church OF GOD, Inc., 699 So. 2d 1042 (Fla. 3d DCA 1997)…PER CURIAM. Affirmed. Martinez v. Martinez, 662 So. 2d 1319 (Fla. 3d DCA 1995); Flemenbaum v. Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994); Batlemento v. Dove Fountain, Inc., 593 So. 2d 234 (Fla. 5th DCA 1991), review denied, 601 So. 2d 551 (Fla.1992); Smiles v. Young, 271 So. 2d 798, 802 (Fla. 3d DCA), ce…
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Quittner v. Quittner, 725 So. 2d 1168 (Fla. 3d DCA 1998)…before entering into the settlement agreement. See Poquette v. Poquette, 425 So. 2d 1203 (Fla. 2d DCA 1983). Accordingly, we hold that the record does not establish sufficient grounds to justify relief from the agreement. See Martinez v. Martinez, 662 So. 2d 1319 (Fla. 3d DCA 1995). As the Flemenbaum court observed, “[i]n many cases, the term ‘fraud’ is loosely used to label all conduct which has displeased an opposing party.” Flemenbaum, 636 So. 2d at 580. We, therefore, reverse the order with directions to…
Authorities Cited
- Flemenbaum v. Lily Flemenbaum, 636 So. 2d 579 (Fla. 4th DCA 1994)
- Myers v. Cardy Mae Myers, 652 So. 2d 1214 (Fla. 5th DCA 1995)
- Betty S. Poquette (Goode) v. Poquette, 425 So. 2d 1203 (Fla. 2d DCA 1983)