JO ANN WOLVERTON, APPELLANT,
v.
MORTON E. WOLVERTON, APPELLEE

Fla. 2d DCA | 2000-06-23
No. 2D99-4758
NORTHCUTT, A.C.J., and SALCINES, J., Concur.
760 So. 2d 1092 Florida District Court of Appeal, Second District (2000) Positive Treatment
Cited by 4 cases

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Synopsis

Jo Ann Wolverton appeals a successor judge's post-dissolution order redistributing marital assets and liabilities, claiming it improperly modified the original final judgment entered by the initial trial judge. The court agrees and reverses, holding that only a Rule 1.540 motion can set aside a final judgment, and the successor judge lacked authority to modify the distribution plan absent such a motion.


Holding

No. The successor judge's order improperly modified the original final judgment. Absent a timely appeal, Florida Rule of Civil Procedure 1.540 is the only procedural vehicle to set aside a final judgment, and because no motion sufficiently invoked that rule, the successor judge lacked authority to alter the distribution scheme.


Headnotes

[1] A successor judge cannot modify a final judgment entered by a predecessor judge absent a timely appeal or a motion properly invoking Florida Rule of Civil Procedure 1.540…

[2] A final judgment entered by a trial court cannot be set aside or modified by a successor judge without adherence to the procedural requirements of Florida Rule of Civil P…

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Key Quotes

“Absent a timely appeal, Florida Rule of Civil Procedure 1.540 is the only procedural vehicle to set aside a final judgment, but no motion sufficiently invoked the rule.”

Establishes the legal principle that only Rule 1.540 motions can modify final judgments once the appeal period expires

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Facts & Procedural History

Following a two-day trial, the initial judge dissolved the marriage and entered oral orders granting Ms. Wolverton an option to purchase the marital h…

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Opinion of the Court
CASANUEVA, Judge.

CASANUEVA, Judge.

Jo Ann Wolverton appeals an equitable distribution order entered post-dissolution by a successor judge, contending that the successor judge erred in modifying the final judgment entered by his predecessor. We agree and reverse.

Following a two day trial, the initial judge dissolved the marriage and entered oral orders concerning equitable distribution. The judge granted Ms. Wolverton an option to purchase the marital home within 30 days, and further ordered an equal division of assets and liabilities. As requested by the judge, the attorneys then submitted a proposed final judgment to which both parties agreed. After the judgment was entered, neither party appealed.

Unfortunately, the parties quickly reached an impasse about how to implement the equal distribution and filed post-judgment motions to enforce the final judgment or to determine the distribution of assets. Because the judicial assignments had changed, a successor judge ruled upon the postjudgment motions and entered an order redistributing the marital assets and liabilities. Ms. Wolverton now challenges the successor judge’s redistribution order, asserting that it improperly modifies the final judgment’s equitable distribution plan. Despite the successor judge’s valiant effort to effect his predecessor’s distribution plan, we are compelled to agree with her contention.

The effect of the successor judge’s order was to set aside or to modify the original final judgment. Absent a timely appeal, Florida Rule of Civil Procedure 1.540 is the only procedural vehicle to set aside a final judgment, but no motion sufficiently invoked the rule. See Seiffert v. Seiffert, 702 So. 2d 273 (Fla. 1st DCA 1997). Therefore, because the successor judge’s order unacceptably altered the original final judgment, we reverse.

With the benefit of the perfect vision afforded hindsight, and with respect to the initial trial judge, we observe that these problems arose because the initial final judgment failed to implement completely the distribution scheme. Although it may be appropriate to grant skilled marital lawyers the latitude to make adjustments to a proposed equitable distribution plan, we suggest that a trial judge is better advised not to enter a final judgment without including sufficient orders to accomplish the goals of the distribution.

On remand, the original final judgment shall be reinstated without prejudice to either party’s right to move to compel its enforcement.

NORTHCUTT, A.C.J., and SALCINES, J., Concur.


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Citator

Cited By

  • Shuzuka Yawata Mannino v. Mannino, 980 So. 2d 575 (Fla. 2d DCA 2008)
    …ect matter jurisdiction is void and subject to collateral attack under rule 1.540 at any time.’ ” McGhee v. Biggs, 974 So. 2d 524, 526 (Fla. 4th DCA 2008) (citing Strommen v. Strommen, 927 So. 2d 176 (Fla. 2d DCA 2006))6; see Wolverton v. Wolverton, 760 So. 2d 1092, 1092 (Fla. 2d DCA 2000) (“Absent a timely appeal, Florida Rule of Civil Procedure 1.540 is the only procedural vehicle to set aside a final judgment....”). Sgt. Mannino did not file a motion under rule 12.540 in the proceedings before the trial co…
  • Benton v. Tracie Benton, 895 So. 2d 1101 (Fla. 1st DCA 2005)
    …n such a deal.” [*1103] Under the facts of this record, a party may only set aside a final judgment pursuant to Rule 1.540(b)(3), Florida Rules of Civil Procedure. See Seiffert v. Seiffert, 702 So. 2d 273 (Fla. 1st DCA 1997); Wolverton v. Wolverton, 760 So. 2d 1092, 1092 (Fla. 2d DCA 2000). This subsection provides for relief from judgment for fraud, misrepresentation or other misconduct by an adverse party. The findings in this record are insufficient to establish fraud. To establish fraud, there must be com…

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