HOWARD A. SHEPARDSON, APPELLANT,
v.
KRISTA S. SHEPARDSON, APPELLEE

Fla. 1st DCA | 2002-05-09
No. 1D01-4479
ALLEN, C.J., BOOTH and WEBSTER, JJ., CONCUR.
820 So. 2d 360 Florida District Court of Appeal, First District (2002) Positive Treatment
Cited by 5 cases

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Holding

The court denied the motion to dismiss, holding that an order dissolving a marriage but bifurcating proceedings and reserving jurisdiction over other issues is appealable as a partial final judgment, consistent with precedent.


Headnotes

[1] An order dissolving a marriage and bifurcating proceedings, reserving jurisdiction over remaining issues, is appealable as a partial judgment of dissolution.

[2] Orders that purport to be final judgments but fail to dispose of all issues are nonfinal and nonappealable unless they involve bifurcated dissolution proceedings.

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Facts & Procedural History

Appellee moved to dismiss an appeal from a Final Judgment of Dissolution of Marriage that dissolved the marriage but bifurcated and continued remainin…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellee has filed a motion to dismiss this appeal from a Final Judgment of Dissolution of Marriage, Order of Continuance and Bifurcation of Trial. The order on appeal dissolves the marriage of the parties, bifurcates the proceedings and continues the remaining issues for disposition at a later date. Relying upon supreme court precedent, we have held such an order appealable as a “partial judgment of dissolution.” See Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990).

The appel-lee cites Klein v. Klein, 551 So. 2d 1235 (Fla. 3d DCA 1989), and Hoffman v. O’Connor, 802 So. 2d 1197 (Fla. 1st DCA 2002), in support of the argument that the order is a nonfinal, nonappealable order. But neither of those cases involved a bifurcated dissolution proceeding. Both instead involved orders that purported to be final judgments, but failed to dispose of all issues. The lack of finality appeared to.be by defect rather than by design. Neither Klein nor Hoffman is therefore on point.

Accordingly, the appellee’s motion to dismiss is denied.

However, we write to express a concern about whether orders such as this should be immediately appealable. The Florida Rules of Appellate Procedure provide for review of final orders and a certain class of nonfinal orders. Fla. R.App. P. 9.110, 9.130. Otherwise piecemeal appeals are not permitted. See S.L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla.1974). The class of final appealable orders include partial final judgments of which there are two types. Orders that dispose of a separate and distinct portion of the litigation are considered sufficiently final so as to be subject to immediate appeal, as are orders that finally dispose of an entire case as to any party to the litigation. Fla. R.App. P. 9.110(k).

An order dissolving the marriage but declining to address the remaining issues has been treated as a partial final judgment. See Galbut v. Garfinkl, 340 So. 2d at 470 (Fla.1976).

The line of cases out of which this conclusion arose generally involves bifurcated dissolution proceedings. There is significant case law addressing the trial court’s authority to dissolve a marriage while specifically reserving jurisdiction to address such other matters as alimony, child support, and the equitable distribution of property. See Hyman v. Hyman, 310 So. 2d 378 (Fla. 2d DCA 1975); Klarish v. Klarish, 296 So. 2d 497 (Fla. 3d DCA 1974); Lippincott v. Lippincott, 287 So. 2d 144 (Fla. 3d DCA 1973).

In Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990), we-reviewed an order that dissolved the marriage and reserved jurisdiction to divide the property as a “partial judgment of dissolution.” We cited Galbut, in which the Florida Supreme Court held that a similar order was a partial judgment of dissolution that was “final insofar as the marital status of the parties is concerned.” In Galbut, the Supreme Court cited Klarish for .the proposition that it is common for a judge to enter an order dissolving the marriage and to reserve jurisdiction to determine the severable issues of alimony, custody and support. In Klarish, the Third District relied on Lippincott in concluding that issues of alimony, custody and support are severable, and that jurisdiction to dispose of those issues is commonly reserved after the marriage is dissolved.

However, the specific idea that the issues are severable appears to have been generated in Klarish rather than Lippincott.

It appears to us that the courts have made a leap in analysis from an observation that it is (or was at the time) common practice for the trial court to bifurcate the proceedings, to a conclusion that the order dissolving the marriage is immediately appealable. But we fail to see why a trial court’s authority to consider the dissolution proceedings in a piecemeal fashion should impact the appellate court’s jurisdiction to review the resulting interlocutory orders.

It does not seem to us that the' rationale and policy reasons behind allowing immediate appellate review of true partial final judgments exist in this context. An order dissolving the marriage but reserving jurisdiction over issues such as alimony, custody, support and property cannot be characterized as either of the two recognized types of partial final judgment: (1) a partial judgment that is final as to a discrete issue, or (2) a partial judgment that finally disposes of a party.

Because this case involves a recurring issue relating to the jurisdiction of the appellate courts of this state, we certify the following question of great public importance:

IS AN ORDER OF A TRIAL COURT BIFURCATING DISSOLUTION OF MARRIAGE PROCEEDINGS AND DISSOLVING THE MARRIAGE BUT RESERVING JURISDICTION TO CONSIDER THE REMAINING ISSUES IMMEDIATELY APPEAL-ABLE AS A PARTIAL FINAL JUDGMENT.

MOTION DENIED; QUESTION CERTIFIED.

ALLEN, C.J., BOOTH and WEBSTER, JJ., CONCUR.


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Citator

Cited By

  • Arvita M. Bland v. Bland, 971 So. 2d 210 (Fla. 5th DCA 2007)
    …a separate and distinct portion of a case” or “a judgment that ‘totally disposes of an entire case as to any party’ but not all of the parties in the case.” Philip J. Padovano, FLORIDA Appellate PRACTICE § 21.5 (2007 ed.); Shepardson v. Shepardson, 820 So. 2d 360, 361 (Fla. 1st DCA 2002). The case law indicates that an order that dissolves a marriage and reserves jurisdiction to determine all other issues is a partial final judgment for purposes of Rule 9.110(k). See Galbut v. Garfinkl, 340 So. 2d 470 (Fla.…
  • Mohamed EL Gohary v. EL Gohary, 76 So. 3d 355 (Fla. 2d DCA 2011)
    …inal appealable orders include partial final judgments that fall within two categories: (1) those which dispose of a separate and distinct part of the litigation, and (2) those which dispose of an entire case as to a party. Shepardson v. Shepardson, 820 So. 2d 360, 361 (Fla. 1st DCA 2002). However, an order that purports to be a final judgment of dissolution but fails to dispose of integrally related issues is nonfinal. See id. at 362; Hoffman v. O’Connor, 802 So. 2d 1197, 1197 (Fla. 1st DCA 2002). We conclu…
  • Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440 (Fla. 5th DCA 2006)
    …e, and Bonnie are not named parties in any other count. Therefore, the order dismissing Count III with prejudice completely disposed of Walters’s claims against them. See Fla. R.App. P. 9.110(k); Dalola, 757 So. 2d at 1216; Shepardson v. Shepardson, 820 So. 2d 360, 362 (Fla. 1st DCA 2002). Therefore, this court has jurisdiction over the appeal of the order dismissing Walters’s count for specific performance against them. See, e.g., Bankers Mut. Capital Corp. v. United States Fid. & Guar. Co., 784 So. 2d 485,…

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