RICHARD DIMOSI DIASOLWA
v.
ALEXA BURNEIKIS
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Father appealed an amended final judgment in a paternity case, but the appeal was untimely because the operative judgment was rendered on October 22, 2019, and Father failed to appeal within 30 days or file a timely post-judgment motion tolling rendition; the amended judgment merely corrected a typographical error and did not restart the appeal period.
An appeal from an amended final judgment that corrects only a typographical error is untimely when the original judgment was rendered more than 30 days prior and no timely post-judgment motion was filed to toll rendition.
[1] An amended final judgment that corrects only a typographical error or clerical error does not restart the 30-day appeal period and is not treated as a new final judgment…
[2] A party claiming lack of notice of a final judgment must file a motion for relief from judgment under the applicable family law rules rather than attempting to appeal an…
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Join FLexlaw to unlock all legal intelligence“Jurisdiction of the court under this rule [to review final orders] shall be invoked by filing a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.”
Establishes the 30-day jurisdictional requirement for invoking appellate jurisdiction.
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Join FLexlaw to unlock all legal intelligenceFather and Mother were parties to a paternity action involving child support and the child's legal name. The trial court rendered a Final Judgment on …
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Opinion filed November 30, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0899 Lower Tribunal No. 16-7099 ________________
Richard Dimosi Diasolwa, Appellant,
vs.
Alexa Burneikis, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David Young, Judge.
Nancy A. Hass, P.A., and Nancy A. Hass (Ft. Lauderdale), for appellant.
Marks & West, P.A., and Evan R. Marks, and Carolyn W. West; Shutts & Bowen, LLP, and Jennifer E. Reisler (West Palm Beach), and Julissa Rodriguez, and Garrett A. Tozier (Tampa), for appellee.
Before SCALES, LINDSEY, and BOKOR, JJ. LINDSEY, J.
On Motion to Dismiss
Appellant Richard Dimosi Diasolwa (the “Father”) appeals from an
Amended Final Judgment of Paternity. Appellee Alexa Burneikis (the
“Mother”) has filed a motion to dismiss for lack of jurisdiction on the basis that the Father did not timely appeal the operative October 22, 2019 Final
Judgment. The Father claims he never received notice of the October Final
Judgment. Because the appeal is untimely, we are compelled to dismiss.
This is a paternity action. The primary disputes below involved the parties’ child support obligations and the child’s legal name. On October 22,
2019, the trial court rendered a Final Judgment.1 The Father did not appeal the Final Judgment within 30 days, nor did he file a timely post-judgment motion that would toll rendition. See Fla. R. App. P. 9.110(b) (“Jurisdiction of the court under this rule [to review final orders] shall be invoked by filing a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed . . .
.”); see also Fla. R. App. P. 9.020(h)(1) (listing motions that toll rendition, so long as they are authorized and timely filed).
November 25, 2019, counsel for the Father sent an email to the judicial assistant claiming he never received a copy of the Final Judgment:
Please be advised that counsel for the Father has never received a signed Final Judgment by the Court. Much to my surprise, a Final Judgment seems to be entered by the Court on October 22, 2019. I have checked all of my emails on my email designation and no emails from the Court have been received. Please advise as to where the Court sent this Final Judgment as the Father and his counsel never received any notice.
Despite claiming not to have received notice of the Final Judgment, the
Father did not file a motion for relief from judgment pursuant to Florida Family
Law Rule of Procedure 12.540(b)(4), 3 which is the established procedure for challenging a judgment entered without notice. See, e.g., Lamoise Grp., LLC v. Edgewater S. Beach Condo. Ass’n, 278 So. 3d 796, 799 (Fla. 3d DCA
2 This cannot be considered a timely motion to amend, which would toll rendition, because a timely motion to amend must be filed within 15 days of rendition of the final order. See Fla. Fam. L. R. P. 12.530(h).3 “On motion and on such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) that the judgment is void . . . .” Fla. Fam. L. R. P. 12.540(b)(4).
So. 3d 726, 729 (Fla. 3d DCA 2017))); see also Philip J. Padovano,5 Fla.
Prac., Civil Prac. § 13:8 (2022 ed.) (“It is a well established principle that a judgment entered without notice is void.”). Consequently, the trial court never determined whether the Father had notice, and the October 22, 2019
Final Judgment still stands.
The trial court rendered an Amended Final Judgment on November 25,
2019, which fixed the typographical error but is otherwise the same as the
October Final Judgment. It is from this Amended Final Judgment that the
Father attempts to invoke this Court’s appellate jurisdiction.4 But because the Amended Final Judgment only fixes a typographical error, the operative judgment is still the October Final Judgment. Consequently, the Amended
4 Judgment cannot be treated as a new final judgment for the purposes of appellate jurisdiction. See, e.g., DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 631–32 (Fla. 3d DCA 2000) (“Florida follows the majority rule that,
where a judgment is amended in a material respect, the appeal time runs from the date of the amendment, provided the amendment is material, not minor or formal. . . . The effect of the amendment was to correct mere clerical errors, which had no impact on the rights of the parties or the finality of the trial court’s original final summary judgment and order for purposes of appeal."); Padovano, supra, at § 2:4 (“Of course, an amended judgment is appealable in its own right to the extent that it adjudicates an issue not addressed in the original judgment. However, unless there has been a material change, the scope of review on appeal from an amended final judgment is limited to the new issues adjudicated by the amended judgment.”).
We are therefore compelled to dismiss the appeal as untimely. Our dismissal is without prejudice to the Father seeking relief from judgment below pursuant to Florida Family Law Rule of Procedure 12.540(b).5
Motion to dismiss granted; appeal dismissed.
5