TAMMY WESTWOOD, APPELLANT,
v.
PAUL WESTWOOD, APPELLEE
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Tammy Westwood appealed the trial court's denial of her petition to modify a partial final judgment allowing her children to relocate to the United Kingdom with their father. The Fifth District Court of Appeal affirmed the denial, holding that the petition was an untimely motion for reconsideration that was properly denied without a hearing because it was not properly served on the opposing party.
The petition was properly characterized as an untimely motion for reconsideration rather than a supplemental petition and was therefore properly denied without a hearing. The failure to serve the petition on the opposing party and the thirty-four-day filing delay supported treating it as a motion for reconsideration under Florida Rule of Civil Procedure 1.580.
[1] A pleading filed more than 30 days after a final judgment, which seeks to challenge the merits of the judgment without proper service of process, may be treated as an unt…
[2] A motion for reconsideration is properly denied without a hearing if it is untimely.
Previewing 2 of 4 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“Ms. Westwood neither obtained a summons nor served the Petition on Mr. Westwood. As a result, we believe the trial judge was correct in viewing the pleading as an untimely motion for rehearing or reconsideration. It was therefore properly denied without a hearing.”
Establishes the controlling principle that failure to serve a petition with a summons renders it an untimely motion for reconsideration that may be denied without a hearing.
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Join FLexlaw to unlock all legal intelligenceBoth parties were non-U.S. citizens residing in the United States at trial. The trial court issued a partial final judgment allowing the parties' mino…
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Tammy Westwood appeals the denial of her “Verified Petition for Modification of Partial Final Judgment of Dissolution of Marriage, or in the Alternative Motion for Reconsideration” (“the Petition”). Ms. Westwood argues that the trial court violated her due process rights by denying her relief without a hearing. The resolution of this issue depends on whether the Petition was actually a supplemental petition or an untimely motion for reconsideration;
At the time of trial, both parties were residing in the United States but were not U.S. citizens. In the partial final judgment of dissolution of marriage, the court ruled that the parties’ minor children should be allowed to move to the United Kingdom with Mr. Westwood.1 The court reserved jurisdiction to provide for a parenting plan and child support. Neither party appealed. Instead, thirty-four days later, Ms. Westwood filed the Petition, challenging the court’s finding that relocation was in the children’s best interest. The trial court summarily denied relief.
While the Petition attempted to cover all bases, Ms. Westwood neither obtained a summons nor served the Petition on Mr. Westwood. As a result, we believe the trial judge was correct in viewing the pleading as an untimely motion for rehearing or reconsideration. It was therefore properly denied without a hearing. See Fla. R. Civ. P. 1.580.
This opinion is without prejudice to Ms. Westwood’s ability to refile a properly served petition for modification. If she chooses to do so, Ms. Westwood will need to plead and prove a substantial, material, and unanticipated change of circumstances, and establish that modification is in the children’s best interest. See, e.g., Delivorias v. Delivorias, 80 So.3d 352, 353 (Fla. 1st DCA 2011).
AFFIRMED.
TORPY, C.J., SAWAYA and COHEN, JJ., concur.