Bigelow v. Ritsema

Full title: NICOLE BIGELOW, Appellant, v. CHRISTOPHER RITSEMA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Date published: Jan 24, 2020

Case No. 5D18-762 (Fla. Dist. Ct. App. Jan. 24, 2020)

Opinion

Case No. 5D18-762 Case No. 5D18-2520

01-24-2020

NICOLE BIGELOW, Appellant, v. CHRISTOPHER RITSEMA, Appellee.

Gary S. Israel, of Gary Israel, P.A., Orlando, for Appellant. No Appearance for Appellee.

WALLIS, J.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Seminole County, Michael J. Rudisill, Judge. Gary S. Israel, of Gary Israel, P.A., Orlando, for Appellant. No Appearance for Appellee. WALLIS, J.

In this paternity action, Appellant, Nicole Bigelow, appeals the order denying her motion to set aside the final judgment and the amended final judgment. The trial court entered the final judgment on September 26, 2017. Appellant did not file a timely motion for rehearing and instead filed a motion to set aside the final judgment based on excusable neglect. After holding an evidentiary hearing on the motion to set aside, the court found that Appellant had chosen not to participate in the litigation and that her actions did not constitute excusable neglect. Ten months after issuing the final judgment, the trial court rendered an amended final judgment, which made substantive changes to the final judgment and included findings of fact related to relevant statutory factors. The trial court's order denying the motion to set aside is supported by competent, substantial evidence. We, therefore, affirm that ruling without further comment. However, we agree with Appellant that the trial court erred in entering the amended final judgment.

Florida Family Law Rule of Procedure 12.530(d) provides that:

[n]ot later than 15 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

This language represents a well-established rule that "trial courts have no authority to alter, modify, or vacate a final judgment except as provided in Florida Rules of Civil Procedure 1.530 and 1.540" and Florida Family Law Rules of Procedure 12.530 and 12.540. Levy v. Levy, 900 So. 2d 737, 745 (Fla. 2d DCA 2005); see Malone v. Percival, 875 So. 2d 1286, 1288 (Fla. 2d DCA 2004) (finding that rule 1.540(a), which allows the court to correct clerical errors in a judgment at any time on its own initiative, does not permit the trial court to correct mistakes in the substance of the judgment). Thus, a trial court lacks jurisdiction to amend a final judgment after the time for rehearing has expired or after it has ruled on a timely motion for rehearing. Levy, 900 So. 2d at 745.

Here, the amended final judgment made substantive changes to the final judgment and was rendered after the time for rehearing had expired.¹ Therefore, the trial court was without jurisdiction to enter the amended final judgment. See id.

1 The motion to set aside was filed more than fifteen days after the final judgment was rendered. Thus, it cannot be considered a motion for rehearing filed pursuant to Florida Family Law Rule of Procedure 12.530(b). --------

AFFIRM Order Denying Motion to Set Aside Final Judgment; VACATE Amended Final Judgment. ORFINGER, J., concurs.
EISNAUGLE, J., concurs in result only without opinion.