ROBERT DIGIORGIO
v.
ZANDRA DIGIORGIO
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Former Husband appeals from an amended final judgment of dissolution of marriage. The court affirmed the judgment on the merits but remanded for vacatur of a parenting plan that was improperly entered as an exhibit after the notice of appeal was filed, as the trial court lacked jurisdiction to modify the judgment post-appeal.
The trial court lacked jurisdiction to enter the parenting plan as an exhibit after the notice of appeal was filed because the action had the effect of modifying the substance of the final judgment under appellate review. The amended final judgment itself is affirmed, but the parenting plan order must be vacated.
[1] A trial court is divested of jurisdiction upon the filing of a notice of appeal, except for matters that do not interfere with the appellate court's authority or the righ…
[2] A trial court lacks jurisdiction to modify the substance of a final judgment after a party files a notice of appeal.
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Join FLexlaw to unlock all legal intelligence“A trial court does not have jurisdiction to enter an order which modifies the substance of a final judgment after a party files a notice of appeal.”
Establishes the core principle that trial courts lose jurisdiction to modify final judgments once an appeal is initiated.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered an amended final judgment of dissolution of marriage on November 3, 2022. After the Former Husband filed his notice of appeal,…
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FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
Case No. 5D2022-2406 LT Case No. 2019-DR-000640 _____________________________
ROBERT DIGIORGIO,
Appellant,
v. ZANDA DIGIORGIO,
Appellee.
_____________________________
On appeal from the Circuit Court for Hernando County. Thomas R. Eineman, Judge. Robert DiGiorgio, Homosassa, pro se. Zanda DiGiorgio, Spring Hill, pro se.
June 28, 2024 PER CURIAM.
Robert DiGiorgio (“Former Husband”) appeals from an amended final judgment of dissolution of marriage entered on November 3, 2022. The amended final judgment is affirmed.
However, pending resolution of this appeal, the trial court entered a parenting plan as an exhibit to the amended final judgment. While it appears that the trial court had intended to attach the parenting plan to the amended final judgment, it did not do so prior to Former Husband filing his notice of appeal. As the trial court’s action had the effect of modifying the substance of the amended final judgment under review, the trial court was without jurisdiction to take that action. See, e.g., Duncan v. Duncan, 598 So. 2d 205, 207 (Fla. 2d DCA 1992) (“[A] trial court does not have jurisdiction to enter an order which modifies the substance of a final judgment after a party files a notice of appeal.”); Schultz v. Schickedanz, 884 So. 2d 422, 424 (Fla. 4th DCA 2004) (“[A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” (alteration in original) (quoting Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979))).
Accordingly, we affirm the trial court’s amended final judgment of dissolution of marriage but remand for vacatur of the trial court’s order entering the parenting plan as an exhibit to the amended final judgment of dissolution of marriage. Our remand for vacatur is not a comment on the propriety of the substance of the parenting plan and is without prejudice to any party seeking appropriate relief, if any, or the trial court taking further action as authorized by the law, following the issuance of the mandate in this appeal.
AFFIRMED; REMANDED with instructions. WALLIS, SOUD, and KILBANE, 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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