MICHELLE SCHELLER, APPELLANT,
v.
SALVATORE SOLLECITO, APPELLEE
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A mother appealed a successor judge's order that vacated a final paternity judgment and threatened a new trial unless the parties agreed on the wording of the final order. The appellate court reversed, holding that the successor judge lacked jurisdiction to sua sponte order a new trial more than 15 days after the final judgment was entered.
The successor judge lacked jurisdiction to sua sponte order a new trial because the order was entered more than 15 days after the final judgment (December 27, 2012) was entered, exceeding the time limits under Florida Rules of Civil Procedure 1.530(d) and 1.540.
[1] A successor judge may not sua sponte vacate a final judgment more than 15 days after its entry, absent grounds for relief under Rule 1.540.
[2] Judicial errors affecting the substance of a judgment must be corrected within ten days after entry of the judgment or by appellate review.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a trial court may, on its own initiative, "order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party," but that authority exists only within 15 days following final judgment.”
Establishes the time limit for sua sponte orders of new trials under Florida Rule 1.530(d).
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Join FLexlaw to unlock all legal intelligenceA trial court held a paternity hearing on November 19, 2012, and entered a final written order on December 27, 2012, incorporating its oral rulings by…
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A mother seeks review of an order by a successor judge, which effectively vacated a final order in a paternity action. She argues the successor judge erred in sua sponte ordering a new trial in the paternity action unless the parties could reach an agreement on the wording of the final order. We agree and reverse.
A father petitioned the court to determine paternity. The original trial court heard the evidence and orally pronounced its rulings at a November 19, 2012 hearing. The trial court then entered a final written order, incorporating its oral rulings by reference and attaching the transcript.
The order required the parties to attend reunification counseling. The mother was to submit a list of three therapists covered by her health insurance. The father was to select a therapist from that list.
The father chose a particular therapist, but for some unknown reason, the thera*87pist was no longer available. The father asked the mother if she would see another therapist. The mother did not respond.
The father then moved for sanctions and to compel appointment of the alternative therapist as the reunification counselor. The mother responded by moving for contempt against the father for contacting the children in violation of the final order.
Due to the retirement of the original trial judge, a successor judge heard the matter on September 30, 2013. That hearing resulted in the following order:
The Court has reviewed the file and the hearing from the final order transcript was not reduced to a written Final Judgment with findings, [sic] Therefore, unless the parties can agree on the wording of the Final Judgment, the hearing will be de novo.
The mother appealed the order. The notice of appeal explained that the successor judge sua sponte vacated the final order unless the parties could agree on the wording for the final order.
Under Rule 1.530(d) of the Florida Rules of Civil Procedure, a trial court may, on its own initiative, “order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party,” but that authority exists only within 15 days following final judgment. Fla. R. Civ. P. 1.530(d) (incorporated by reference in Fla. Fam. L. R. P. 12.530). Sua sponte relief from judgment under Rule 1.540 is also limited. Fla. R. Civ. P. 1.540 (incorporated by reference in Fla. Fam. L. R. P. 12.540).
A trial court may, on its own initiative, correct clerical errors at anytime pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that affect the substance of a judgment, must be corrected within ten days after entry of the judgment pursuant to Florida Rule of Civil Procedure 1.530, or by appellate review.
Corvette Country, Inc. v. Leonardo, 997 So.2d 1272, 1273 (Fla. 4th DCA 2009) (emphasis added) (citations omitted).
Here, the final order was entered on December 27, 2012. The successor judge entered an order sua sponte granting rehearing on September 30, 2013. This ruling exceeded the 15-day limit under Rule 1.530 and the 10-day limit under Rule 1.540. The trial court lacked jurisdiction to enter the order on appeal. See Kirby v. Speight, 217 So.2d 871 (Fla. 1st DCA 1969).1
We therefore reverse and remand with instructions to enforce the final order as written.
Reversed and Remanded.
CIKLIN and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kirby v. Speight, 217 So. 2d 871 (Fla. 1st DCA 1969)
- Corvette Country, Inc. v. Carlo Leonardo, 997 So. 2d 1272 (Fla. 4th DCA 2009)