Opinion
No. 4D07-2025.
April 16, 2008.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 1997DR004272 XXXXMBFA.
V. Julia Luyster of Valdini Palmer, P.A., Fort Lauderdale, and Tina Lewert of Lewert Law Office, P.A., Boca Raton, for appellant.
Mitchell Haymes of Law Offices of Glantz Glantz, P.A., Plantation, for appellee.
This is an appeal by the former wife, April A. Kruger, from the Order Granting Former Husband's Motion to Enforce Final Judgment, for Contempt, Petition to Change Custody of Minor Children. We affirm.
As her first issue appellant urges the trial court committed reversible error in entertaining a motion for modification of child custody instead of a petition for modification of child custody and for modifying child custody as a sanction for civil contempt.
Family Law Rule 12.110 provides "that proceedings to modify a final judgment in a family law matter shall be initiated only pursuant to rule 1.110(h) and not by motion." Florida Rule of Civil Procedure 1.110(h) states:
When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.
Fla.R.Civ.P. 1.110(h) (2007); Braswell v. Braswell, 935 So. 2d 604, 606 (Fla. 3d DCA 2006) ("Florida law unequivocally requires that dissolution judgment modifications assert any change of circumstances in the form of a petition."). The difference in filing a motion and a petition is that with a petition, the rules regarding the filing of an answer and defenses under rule 1.140, Florida Rules of Civil Procedure, apply. In Re: Florida Rules of Civil Procedure, 253 So. 2d 404, 406 (Fla. 1971).
However, the failure to follow rule 12.110, does not create "per se reversible error on appeal." Cuartas v. Cuartas, 951 So. 2d 980, 983 (Fla. 3d DCA 2007). In Cuartas, the former husband appealed the denial of his motion for contempt and change of primary residence. Id. at 981. The trial court denied the motion because the former husband did not follow rule 12.110 and filed a petition instead. Id. The appellate court reversed, finding that because the former wife agreed to try the matter before a general magistrate and only raised the procedural deficiency in exceptions filed after the magistrate's decision, she waived her rights to enforce rule 12.110. Id.
As stated in Cuartas:
Despite the mandatory connotation of the language of the rule and the compulsory tenor of the decisions which have treated it in contexts similar to ours-including especially our recent Braswell decision-we conclude that Rule 1.110(h) should not be slavishly applied. As with most rules, a litigant can waive the benefit of the rule.
951 So. 2d at 983. The record in this case reflects that appellant, as in Cuartas, waived the benefit of Florida Rule of Civil Procedure 1.110(h).
We hold all other issues raised by appellant to be without merit and affirm without discussion.
Affirmed.
POLEN and MAY, JJ., concur.
Not final until disposition of timely filed motion for rehearing