ERICA N. FLUHART
v.
BRANDON L. RASMUSSEN
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Erica Fluhart appealed a trial court's final judgment dissolving her marriage, which adopted a General Magistrate's recommended order. The Fifth District Court of Appeal affirmed the judgment but used the case to recede from its prior holding in Gatchell v. Kryvosheia that an appellant's failure to file a motion to vacate a magistrate's recommended order deprives the appellate court of jurisdiction.
The court receded from its prior holding in Gatchell v. Kryvosheia that such failure divests the appellate court of jurisdiction. However, Fluhart's failure to move to vacate did result in a failure to preserve for appellate review her claimed errors regarding the time-sharing and shared parental responsibility provisions.
[1] A party must file a motion to vacate a general magistrate's recommended order before appealing the trial court's adoption of that order to preserve issues for appellate r…
[2] Failure to file a motion to vacate a general magistrate's recommended order adopted by the trial court results in a failure to preserve issues for appellate review.
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“an appellant's failure to file a motion to vacate the recommended order under this rule constituted a failure to preserve issues for appellate review”
Describes the holding from Gatchell v. Kryvosheia that the court is reconsidering
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Join FLexlaw to unlock all legal intelligenceAfter a trial court entered an order adopting a General Magistrate's report and recommended final judgment of dissolution of marriage, Fluhart timely …
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EN BANC KILBANE, J. Erica Fluhart timely appeals the final judgment of dissolution of marriage rendered by the trial court in which the court accepted and adopted the report and recommended final judgment of dissolution of the parties’ marriage submitted by the General Magistrate (“GM”) following evidentiary hearings. We
affirm; but we have elected to consider this matter en banc to recede, in part, from our decision in Gatchell v. Kryvosheia, 370 So. 3d 374 (Fla. 5th DCA 2023).
Here, after the trial court entered its order adopting the GM’s report and recommended final judgment of dissolution of marriage, Fluhart timely filed her notice of appeal without first moving under Florida Family Law Rule of Procedure 12.490(e)(3) to vacate the order. In Gatchell, under sufficiently similar circumstances, our court held that an appellant’s failure to file a motion to vacate the recommended order under this rule constituted a failure to preserve issues for appellate review. Id. at 375–76. We dismissed the appeal, concluding that the appellant’s failure to preserve issues for appellate review by filing this motion constituted a failure to invoke our appellate jurisdiction. Id.
On further consideration, we find our conclusion in Gatchell that we lacked jurisdiction to be error; and we now specifically recede from that portion of the opinion. We do, however, affirm the instant final judgment because, under Gatchell, Fluhart’s failure to move to vacate the GM’s recommended final judgment adopted by the trial court resulted in a failure to preserve for appellate review her claimed error involving the court-ordered time-sharing and shared parental responsibility of the parties’ minor child.
AFFIRMED. EDWARDS, C.J., and MAKAR, WALLIS, LAMBERT, JAY, EISNAUGLE, HARRIS, SOUD, BOATWRIGHT, MACIVER, and PRATT, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
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