ANNALEE ERHARDT, APPELLANT,
v.
HAROLD GEORGE ERHARDT, APPELLEE
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In this Florida divorce case, the husband sought relief from a final dissolution judgment on grounds of alleged fraud regarding his income, which had been used to calculate alimony and child support obligations. The appellate court held that Rule 1.540(b) permits relief from a judgment for fraud only when there is actual fraud upon the court, and since the trial court found no such fraud (only an honest mistake of fact), relief could not be granted, particularly where the application was untimely.
The appellate court held that Rule 1.540(b)'s final sentence permits relief from a judgment only on the basis of fraud upon the court, not as two separate alternative grounds. Since the trial court found no fraud upon the court had been committed—only an honest mistake of fact—the trial court lacked authority to grant relief, particularly where the petition was filed nearly two years after the original judgment, making it untimely under the one-year limitation period.
[1] A court may grant relief from a final judgment under Rule 1.540(b) of the Florida Rules of Civil Procedure only upon a showing of fraud upon the court.
[2] An independent action to relieve a party from a judgment under Rule 1.540(b) requires a demonstration of fraud upon the court.
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Join FLexlaw to unlock all legal intelligence“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: [...] (3) fraud (whether heretofore denominated intrinsic or extrinsic) [...] This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.”
The applicable rule providing the standard for relief from final judgments, which the husband invoked
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Join FLexlaw to unlock all legal intelligenceA final decree of dissolution was entered on August 19, 1975, awarding the wife $300 per month alimony and requiring the husband to pay $600 per month…
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PER CURIAM.
Subsequent to the entry of an order granting the motion for default filed by appellant/wife Annalee Erhardt, the trial court entered a final decree of dissolution of the marriage between appellant and appellee/husband Harold George Erhardt on August 19, 1975. Appellant was awarded $300 per month permanent alimony, and appellee was ordered to provide $600 per month child support.
On May 3, 1977 appellee, in an independent action, filed a petition for relief from that final judgment alleging that appellant had fraudulently misrepresented the income of appellee and that the trial court relied on this misrepresentation as a basis for the alimony and child support awards. The petition requested that appellee be relieved of the child support and alimony obligations. It should be noted that at the time the petition was filed appellee was approximately $17,000 in arrears on these obligations. After appellee filed his petition, the trial court in effect reopened the dissolution action and consolidated it with appellee’s petition.
At the conclusion of an evidentiary hearing on the petition the trial court found that appellee was not making as much money as appellant had said he was during the dissolution action. However, the court found that no fraud had been committed upon the court, but that appellant had been “working under a bonafide [sic] mistake of fact.” The court further ruled that appel-lee was relieved of the obligations imposed under the previous final judgment of dissolution, including the $17,000 in arrearages. The court directed the husband to begin paying $300 per month child support, but did not require him to pay any alimony. Soon thereafter the trial court entered an amended final judgment in the original dissolution proceedings embodying the above. It is from this amended final judgment that wife appeals.
Rule 1.540(b) of the Florida Rules of Civil Procedure provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic) . . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court. (Emphasis added).
Appellee contends that even though the trial court did not find that appellant had committed fraud upon the court he could still be granted relief under the last sentence of Rule 1.540(b). Appellee argues that this final sentence empowers a trial court to entertain petitions for relief seeking either (1) “[relief] from a judgment, decree, order or proceeding” or (2) “to set aside a judgment or decree for fraud upon the court.” In other words appellee views the two portions of the final sentence disjunctively and finds two separate grounds for relief, one of which requires a showing of fraud and one of which does not. We reject this reasoning. We read the final sentence to provide only one basis for relief and that requires a showing of fraud upon the court.
As mentioned previously, the trial court found at the conclusion of the hearing that appellee had committed no fraud upon the court. We hold that this finding was supported by the evidence. Therefore, since no fraud was committed upon the court, the court had no power to grant relief under the final sentence of Rule 1.540(b) because appellee’s application for relief was untimely.
Accordingly, the amended final judgment is vacated and the final judgment of August 19, 1975 is reinstated.
GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.
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DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)…aside a property settlement agreement approved in the final judgment of dissolution entered three 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.…1 / 2
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Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)…e court is the exclusive ground for an independent action, then Kimbrough must take its place alongside the other blind followers of the Alexander dictum. The last surviving heir of Alexander which we have been able to locate is Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978). While Erhardt pays no tribute to the progenitorship of Alexander or any other case, its distinct resemblance to Alexander gives us confidence that we are correct about its bloodline. Erhardt, in which the critical allegation in t…1 / 2
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Rosella Futch Mopsick v. Futch, 386 So. 2d 815 (Fla. 2d DCA 1980)…PER CURIAM. Affirmed on authority of Erhardt v. Erhardt, 362 So. 2d 70 (Fla. 2d DCA 1978). SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.…
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