DEBORAH J. BELK, APPELLANT,
v.
JAMES B. MCKAVENEY, APPELLEE
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In a paternity dispute, the trial court set aside a settlement agreement judgment based on newly discovered evidence (psychological and guardian ad litem reports). The appellate court reversed, holding that the reports were available in time for the father to file a motion for rehearing and thus did not qualify as newly discovered evidence under Florida Rule of Civil Procedure 1.540(b)(2).
The trial court abused its discretion by setting aside the judgment based on newly discovered evidence because the psychologist's and guardian's reports were available before the deadline to file a timely motion for rehearing (ten days after entry of judgment). Rule 1.540(b)(2) does not provide relief when evidence could have been discovered in time for a rehearing motion.
[1] A trial court abuses its discretion by setting aside a final judgment based on newly discovered evidence under Rule 1.540(b)(2) when that evidence could have been discove…
[2] Relief from a final judgment based on newly discovered evidence under Rule 1.540(b)(2) is not available if the evidence could have been discovered in time to move for a r…
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Join FLexlaw to unlock all legal intelligence“Rule 1.540(b)(2) does not offer relief to parties who could have discovered the evidence in time to file a motion for rehearing.”
Establishes the controlling legal standard for newly discovered evidence under Florida procedural rules
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Join FLexlaw to unlock all legal intelligenceThe mother and father settled a paternity action on July 19, 2004, with the settlement agreement granting the mother sole parental responsibility and …
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STRINGER, Judge.
Deborah Belk, the Mother, seeks review of the trial court’s “Order on Guardian Ad Litem’s Motion for Reconsideration; .Order on Respondent’s Motion for Reconsideration, and Order on Respondent’s Motion to Set Aside Final Judgment” in this paternity action with the Father, James McKaveney. The Mother challenges that portion, of the order that sets aside the August 9, 2004, supplemental final judgment. Because the trial court erred in granting the Father’s “Motion to Set Aside Final Judgment” based on newly discovered evidence, we reverse as to that portion of the order and remand for the trial court to reinstate the supplemental final judgment.
We affirm as to the remainder of the order. The challenged order of the trial court set aside the supplemental final judgment that incorporated the terms of a settlement agreement entered into by the Mother and the Father, giving the Mother sole parental responsibility of the minor child and denying the Father visitation until recommended and agreed to by the child’s therapist and the Mother. The supplemental final judgment was set aside, pursuant to Florida Rule of Civil Procedure 1.540(b)(2), based on a finding that a report from the child’s psychologist and a report from the child’s guardian ad litem, appointed in a related case, were newly discovered evidence because they were not known at the time the parties entered into the settlement agreement.
We review for an abuse of discretion the trial court’s ruling on a rule 1.540 motion to set aside judgment. See Allstate Ins. Co. v. Gulisano, 722 So. 2d 216, 218 (Fla. 2d DCA 1998).
Rule 1.540(b)(2) provides in part that the court may relieve a party from a final judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.” Thus, by its express terms, rule 1.540(b)(2) does not offer relief to parties who could have discovered the evidence in time to file a motion for rehearing. See also Bellino v.W & W Lumber & Bldg. Supplies, Inc., 902 So. 2d 829 (Fla. 4th DCA 2005).
Pursuant to Florida Rule of Civil Procedure 1.530, a motion for rehearing is timely if filed no later than ten days after the date of filing of the judgment in a nonjury trial.
In this case, the trial court found the psychologist’s and guardian’s reports were newly discovered evidence because they were not known at the time the parties entered into the settlement agreement on July 19, 2004.
However, the psychologist faxed her report to counsel for both parties on August 6, 2004, and the guardian served his report on August 16, 2004.
Thus, both reports were available to be discovered in time for the Father to move for a rehearing on the supplemental final judgment rendered on August 9, 2004. The Father, however, failed to file a timely motion for rehearing, and the trial court abused its discretion by granting the Father’s motion to set aside the supplemental final judgment based on the grounds of newly discovered evidence.
Accordingly, we reverse as to that portion of the order and remand for the trial court to reinstate the supplemental final judgment.
Affirmed in part, reversed in part, and remanded with instructions.
DAVIS and CANADY, JJ., Concur.
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State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So. 3d 528 (Fla. 2d DCA 2017)…it too implies that the trial court found the stipulated judgment void and ordered relief accordingly. State Farm timely appeals. II. We ordinarily' review an order granting a motion under rule 1.540(b) for abuse of discretion. Belk v. McKaveney, 903 So. 2d 337, 337 (Fla. 2d DCA 2005). But see Wiggins v. Tigrent, Inc., 147 So. 3d 76, 80 (Fla. 2d DCA 2014) (“The de novo standard of review also applies to the review of ah order [entered pursuant to rule 1.540(b)(4)] determining whether a final judgment by de…
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Casteel v. Maddalena, 109 So. 3d 1252 (Fla. 2d DCA 2013)…owever, to obtain relief from judgment based on newly discovered evidence, the movant must demonstrate that she could not have discovered the evidence through due diligence within the time to move for rehearing or a new trial. See Belk v. McKaveney, 903 So. 2d 337, 338 (Fla. 2d DCA 2005) (citing rule 1.540(b)(2)). The trial court did not make a finding as to whether Maddalena had proven due diligence. Instead, the trial court found that “[a] party is not required to anticipate false testimony and therefore i…
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Neapolitan Enters. v. Fishman, 303 So. 3d 1258 (Fla. 2d DCA 2020)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Ins. Co. v. Gulisano, 722 So. 2d 216 (Fla. 2d DCA 1998)
- Bellino v. W & W Lumber & Bldg. Supplies, Inc., 902 So. 2d 829 (Fla. 4th DCA 2005)