THE STATE OF FLORIDA, ETC., APPELLANT,
v.
ELIFET J. DORCE, APPELLEE
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The Florida Department of Revenue appeals the trial court's denial of its motion to vacate a child support modification order. The court reverses, holding that the DOR's motion to vacate was timely filed and remands for the trial court to address the merits of the DOR's arguments.
The DOR's motion to vacate was timely filed. An order is rendered when a signed, written order is filed with the clerk of court, not when it is signed. Since the order was filed on March 1, 2016, the DOR's motion filed on March 9, 2016, was within the ten-day period and therefore timely.
[1] A motion to vacate an order is timely if filed within ten days of the order's rendition, which occurs when a signed, written order is filed with the clerk of the court.
[2] A trial court errs by denying a motion to vacate as untimely when it incorrectly calculates the filing period based on the date an order was signed rather than the date i…
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Join FLexlaw to unlock all legal intelligence“An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.”
Establishes the legal standard for when an order becomes rendered for purposes of calculating the timeliness deadline for motions to vacate.
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Join FLexlaw to unlock all legal intelligenceIn August 2015, the trial court set the father's monthly child support obligation at $951.64. In October 2015, the father filed a petition for modific…
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The Department of Revenue [“DOR”] appeals from the denial of its motion to vacate an order granting modification of child support. We reverse the order, and remand for a determination on the merits of the motion to vacate.
In August of 2015, the trial court set the Father’s, Elifet Dorce, monthly child support obligation at $951.64. He did not move for rehearing or to vacate, and did not appeal. In October of 2015, Dorce filed a petition for modification of child support. He did not allege any change in circumstances, but merely claimed he was unable to pay the ordered monthly support.
At the January 2016 hearing on Dorce’s petition, both parties submitted financial affidavits, but the record indicates Dorce did not argue a substantial change in circumstances necessary to justify a downward modification, pursuant to section 61.30(b), Florida Statutes (2016). The court applied the guidelines and came up with a reduced support obligation of $835.91, and granted Dorce’s petition for modification of child support. That order was signed on February 22, 2016, but not rendered until March 1, 2016.
The DOR filed its motion to vacate the Modification Order on March 9, 2016. The trial court denied it as untimely filed, because the court erroneously used the date the order was signed, rather than the date it was rendered to determine timeliness. That was error.
The DOR’s motion to vacate was timely filed on March 9, 2016. The record shows that, while the trial court signed the underlying written order on February 22, 2016, the order was not filed with the clerk of court until March 1, 2016. As such, the order on appeal was not “rendered” for purposes of the ten-day filing period for a *335motion to vacate until March 1, 2016, the date the order was filed with the clerk. Fla. R. Civ. P. 9.020(i) (2016) provides that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” See e.g. Amos v. Reich, 208 So.3d 796 (Fla. 3d DCA 2016). Therefore, the DOR’s motion to vacate was timely filed within ten days from the date the child support modification order was rendered.1 Although the Family Law Rule uses the language “date of entry,” this does not contradict FRCP 9.020’s definition of rendition. Finally, the DOR’s appeal from the modification order is premature. The trial court must first address the substance of the DOR’s arguments on its motion to vacate the modification order.
We therefore reverse the order denying the DOR’s motion to vacate the order granting modification of child support and l'emand with instructions to determine the merits of the motion.