Summary
applying motion-to-vacate procedure in former Family Rule 12.491(f), appeal was dismissed for lack of jurisdiction due to failure to timely file motion to vacate trial court's entry of hearing officer's recommended order
Summary of this case from Gatchell v. KryvosheiaOpinion
No. 1D12–4267.
2013-01-10
Matthew D. CHRIST, Former Husband, Appellant, v. Kathryn K. CHRIST, Former Wife, Appellee.
Matthew D. Christ, Former Husband, pro se, Appellant. Kathryn K. Christ, Former Wife, pro se, Appellee.
Matthew D. Christ, Former Husband, pro se, Appellant. Kathryn K. Christ, Former Wife, pro se, Appellee.
PER CURIAM.
DISMISSED. Upon consideration of appellant's response to the Court's show cause order of October 3, 2012, the Court has determined that it lacks jurisdiction and the appeal must be dismissed. Appellant seeks review of three orders entered in a post-dissolution of marriage modification proceeding. The appeal is either untimely or unauthorized with respect to each of these orders.
Although the July 6, 2012, Supplemental Final Judgment Adjudicating Child Support Arrearage and Modifying Child Support is a final appealable order, appellant failed to timely invoke the Court's jurisdiction to review the order. Appellant's motion to vacate the order failed to delay its rendition because the motion was not filed within ten days of the order as required by Florida Family Law Rule of Procedure 12.491(f). Thus, rendition of the order occurred on July 6, 2012, and appellant's notice of appeal failed to timely invoke the Court's jurisdiction to review it.
In addition, to the extent that appellant seeks review of the August 9, 2012, Order Denying Motion to Vacate Supplemental Final Judgment Adjudicating Child Support Arrearage and Modifying Child Support as Untimely, appellate review is unavailable. Although Florida Rule of Appellate Procedure 9.130(a)(5) provides for review of an order on a motion to vacate, the rule requires that the motion precipitating the order be both authorized and timely. Here, as determined by the lower tribunal and conceded by appellant, the motion to vacate was not timely. Thus, the order does not fall within the scope of rule 9.130(a)(5).
Finally, appellant's attempt to appeal the August 24, 2012, Order Denying Motion for Rehearing fails. Although a motion for rehearing is capable of delaying rendition of the underlying order where the motion is both timely and authorized, seeFlorida Rule of Appellate Procedure 9.020(h), here, the motion was timely, but not authorized. SeeFla. R.App. P. 9.130(a)(5). Moreover, the order denying rehearing is not independently reviewable. Fla. R.App. P. 9.130(a)(4); Grant v. Jones, 933 So.2d 32 (Fla. 1st DCA 2006). For the foregoing reasons, the Court lacks jurisdiction and the appeal is hereby dismissed.