JOSE M. COLON, APPELLANT,
v.
ELSA MILAGROS COLON, APPELLEE
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In this dissolution of marriage case, the husband appeals the trial court's order denying his motion for relief from judgment as untimely. The appellate court reversed, holding that the trial court erred by summarily dismissing the entire motion when part of it properly asserted a claim for relief from a void judgment under Florida Rule of Civil Procedure 1.540(b)(4), which has no time limit.
The trial court erred in summarily denying the entire motion as untimely. Although the rehearing portion was properly subject to the ten-day deadline, the claim for relief from a void judgment under Rule 1.540(b)(4) may be granted at any time and therefore was not untimely. The trial court must reconsider the motion on the merits.
[1] A motion for relief from a void judgment under Rule 1.540(b)(4) may be granted at any time, as the "reasonable time" requirement does not impose a time limit when the jud…
[2] A trial court errs by dismissing an entire motion as untimely when the motion contains both a request for rehearing and a claim for relief from a void judgment.
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Join FLexlaw to unlock all legal intelligence“Because relief from a void judgment pursuant to Rule 1.540(b) may be granted at any time, the trial court erred in denying the former husband's motion.”
Establishes the core holding that motions for relief from void judgments are not subject to time limitations
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Join FLexlaw to unlock all legal intelligenceAfter the wife filed for dissolution of marriage, the trial court appointed a family court mediator. The husband failed to appear for mediation and th…
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The husband appeals the trial court’s order denying his “motion for relief from judgment” in this dissolution of marriage action. Because the trial court erred in dismissing his entire motion as untimely and treating it as a motion for rehearing, rather than a motion for relief from judgment, we reverse and remand for the trial court to consider the merits of the motion.
After the wife filed a petition for dissolution of marriage, the court appointed a family court mediator. The wife appeared for mediation, but the husband did not. The case was referred to a general magistrate, who filed his report recommending that the trial court adopt the proposed final order. The husband failed to appear for the final hearing, and the trial court entered the Final Judgment of Dissolution of Marriage on December 31, 2008.
On June 18, 2009, the husband filed a pro se motion labeled “motion for relief from judgment.” However, the motion contained both a request for rehearing and for relief from judgment. Regarding the latter, the husband argued that the judgment was void because the court failed to provide him notice of mediation and notice of the final hearing. This resulted in a denial of due process. On June 30, 2009, the trial court entered an order denying the husband’s motion as untimely because it was not filed within ten days.
Although the trial court’s ruling was correct as to that portion of the husband’s motion that was essentially a motion for rehearing, the trial court erred in summarily denying the entire motion as untimely, because part of the motion properly asserted a claim for relief from judgment, i.e., that the judgment was *554void pursuant to Florida Rule of Civil Procedure 1.540(b)(4). See Fla. R. Civ. P. 1.540(b)(4) (2009) (“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (4) that the judgment or decree is void;.... The motion shall be filed within a reasonable time.”).
Because relief from a void judgment pursuant to Rule 1.540(b) may be granted at any time, the trial court erred in denying the former husband’s motion. See Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009) (citing Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006)). See also M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000) (“While it is true that Rule 1.540(b)(4) states that a motion for relief from a void judgment must be made within a ‘reasonable time,’ most courts have felt constrained to interpret the ‘reasonable time’ requirement of the rule to mean no time limit when the judgment attacked is void: ‘Assuming that a judgment is null and void for lack of jurisdiction does a Rule 1.540(b) motion for relief not brought within a reasonable time have the effect of making a void judgment valid? The answer is “no.” ’ ” (quoting Whigham v. Whigham, 464 So.2d 674, 676 (Fla. 5th DCA 1985))).
We therefore reverse the order and remand for the trial court to reconsider the former husband’s motion for relief from judgment. ,
Reversed and Remanded.
TAYLOR, HAZOURI and CIKLIN, JJ., concur.
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Citator
Cited By
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Taylor v. Taylor, 67 So. 3d 359 (Fla. 4th DCA 2011)…, and due diligence. “It is well settled that a judgment entered without notice to a party is void.” Watson, 583 So. 2d at 411 (citations omitted). “[R]elief from a void judgment pursuant to Rule 1.540(b) may be granted at any time.” Colon v. Colon, 45 So. 3d 553, 554 (Fla. 4th DCA 2010). We also reject the wife’s argument that we should affirm because the husband did not provide the court or the wife’s counsel with another address and did not have his mail forwarded to another address. The husband’s unrebu…
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Mousie Salim v. Flynn (15th Cir. Ct. App. Div. 2010)…ter as a Motion for Rehearing and denied it as "untimely" without holding an evidentiary hearing on the same. Failure to receive notice of a proceeding may result in a void judgment which may be vacated pursuant to Rule 1.540(b)(4). Colon v. Colon, 45 So. 3d 553 (Fla. 4th DCA 2010); see also Touloute v. City of Fort Lauderdale, 80 So. 3d 1129 (Fla. 4th DCA 2012). The Fourth District Court of Appeal has held that a party alleging a judgment is void for failure to receive notice is entitled to an evidentiary…
Authorities Cited
- Terrie G. Viets v. Am. Recruiters Enters., Inc., 922 So. 2d 1090 (Fla. 4th DCA 2006)
- Dorsey v. State, 769 So. 2d 1079 (Fla. 2d DCA 2000)
- Shiver v. Wharton, 9 So. 3d 687 (Fla. 4th DCA 2009)
- Whigham v. Whigham, 464 So. 2d 674 (Fla. 5th DCA 1985)