ELAINE AUGUST, APPELLANT,
v.
FRED AUGUST, APPELLEE
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The court held that a post-judgment petition to set aside a divorce judgment based on misconduct must be filed within one year of the judgment's entry.
[1] A post-judgment petition to set aside a final judgment based on fraud, misrepresentation, or other misconduct of an adverse party must be filed within one year after the…
[2] A "fraud upon the court" exception to the one-year time limit for setting aside a judgment under Rule 1.540(b) requires an independent action and does not apply to allega…
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Join FLexlaw to unlock all legal intelligenceWife filed a post-judgment petition to set aside a divorce judgment approximately eighteen months after it was entered, alleging husband's misconduct …
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HUBBART, Judge.
By this interlocutory appeal, we are asked to review a trial court order dismissing one count of a post-judgment petition to set aside a final judgment of divorce. In such count, the appellant-wife (Elaine August) alleged that the final judgment should be set aside because of certain misconduct committed by the appellee-husband (Fred August) which led to a property settlement agreement later incorporated into the final judgment. The alleged misconduct consisted of undue influence, duress, and fraudulent concealment of assets. We affirm.
The law is clear that a post-judgment petition to set aside a final judgment on the grounds of fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party must be brought not more than one year after the final judgment is entered. Fla.R.Civ.P. 1.540(b). Since the instant petition was brought approximately eighteen months after the entry of the divorce judgment, the petition was untimely and the trial court properly dismissed it. See Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971).
Scales v. Scales, 237 So. 2d 50 (Fla. 3d DCA 1970), does not compel a contrary result. In that case, this court held that the proper venue for an action to modify a divorce judgment was in the court which originally entered the judgment. In obiter dicta, the court quite properly rejected a contention made by one of the parties that an attack on the divorce decree was forever precluded because one year had elapsed from the date of the entry of the decree. Fla.R.Civ.P. 1.540(b) specifically provides that an independent action may be filed at any time to relieve a party from a judgment for fraud upon the court. No such independent action has been filed in this case, and, in any event, the alleged fraud herein does not constitute a fraud upon the court. Alexander v. First National Bank of Titusville, 275 So. 2d 272 (Fla. 4th DCA 1973).
For the above reasons, the order appealed from is in all respects affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)…ree years prior to the commencement of this action. We find direct conflict with Truitt v. Truitt, 383 So. 2d 276 (Fla. 5th DCA 1980); Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978), review denied, 368 So. 2d 1366 (Fla.1979); August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977); and Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. We find that the conduct in this case did not constitute fraud on the court, as such fraud has…1 / 2
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…iting to Alexander, observed in dicta 8 that “an independent action in another [*713] court ... is improper to relieve a party from a judgment in the absence of allegations of proof of a fraud upon the court.” Id. at 561. Again, in August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977), where the court correctly rejected as untimely a post-judgment motion under Rule 1.540(b) filed in the original action more than a year after judgment, we, again in dicta, went on to repeat the Alexander litany that “an independe…1 / 2
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Truitt v. Truitt, 383 So. 2d 276 (Fla. 5th DCA 1980)…of an unsuccessful party from presenting his case, by deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit, etc. In August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977), it was held that a post-judgment motion to set aside a divorce judgment because of alleged misconduct by the husband (undue influence, duress, and fraudulent concealment of assets) was too late, since it was filed eighteen months…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alexander v. First Nat'l Bank OF Titusville, 275 So. 2d 272 (Fla. 4th DCA 1973)
- Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971)
- Key Scales v. Scales, 237 So. 2d 50 (Fla. 3d DCA 1970)