Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When a party voluntarily dismisses a Florida family law case, the court no longer has jurisdiction over the dismissed case. This means the same case cannot be re-opened and re-litigated. A party wishing to proceed again on the case needs to file a new case under a new case number. In the recent appellate case Carlton v. Zanazzi, 2D18-603 (Fla. 2d DCA March 6, 2019), the court reviewed a case in which a divorce was dismissed but then later re-filed under the previous case number.

In 2015, the former wife filed a dissolution of marriage petition which was followed by a counter-petition by the former husband. Subsequently, the parties voluntarily dismissed their pending petitions. In 2016, the wife filed a new petition, but listed the case number from the voluntarily dismissed case. This case was resolved by agreement and a final judgment was entered listing the old case number. The former husband then filed a petition for modification after which he sought to vacate the final judgment arguing the court had no jurisdiction to enter a final judgment under the voluntarily dismissed case number.

The trial court granted the former husband’s motion to vacate the final judgment and the former wife appealed. The former wife took the position that the filing of her new petition under the old case number was essentially a scrivener’s error which did not divest the trial court of jurisdiction. Essentially, she argued filing it under the old case number was a technicality which should not act to unravel a final judgment.

The appellate court agreed with the former wife, holding “When a case is filed in the wrong division, it should be transferred to the correct division. [. . .] The same is true of a pleading filed with a case number that the parties and circuit court should recognize is improper. The use of the original case number on a new and separate petition is more in the nature of a scrivener's error than a jurisdictional defect. [. . .] The former wife's new petition clearly sought to invoke the circuit court's jurisdiction to dissolve the parties' marriage, and the new petition should have been assigned a new case number. But neither the failure of the parties to use a new case number nor the failure of the circuit court to assign a new case number to the former wife's new petition operated to divest the circuit court of jurisdiction to consider the new petition.”

The appellate court further noted, “We also note that prior to raising this issue in his motion to vacate, the former husband had (1) agreed to the trial court's entering the final judgment of dissolution in the original case number and (2) sought relief from the trial court by filing a petition for modification of the parenting plan in November 2017, also listing the original case number. We recognize that a party may not waive the issue of subject matter jurisdiction, but as we have concluded, this is not a matter of subject matter jurisdiction. By agreeing to the final judgment of dissolution and by seeking affirmative relief, the former husband waived any claim that the trial court erred in entering judgment using the wrong case number.”

Following Florida Family Law Rules of Procedure allows a court to proceed with your case appropriately. To ensure you are following the rules, start with a consultation with a Florida family law attorney.