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

What are the reasons a Florida family law order will be set aside? There are various ways to challenge a court order, and knowing which way is best is the key to optimizing your chances of success on a motion to vacate an order. In the case Romero v. Brabham, 4D19-3769 (Fla. 4th DCA July 22, 2020), the former wife challenged an order holding her in contempt after she did not appear at a hearing.

The parties were divorced after entering a marital settlement agreement which provided in pertinent part that the former wife would claim the parties’ minor child as a dependent for tax purposes in even years, while the former husband would claim the parties’ minor child as a dependent for tax purposes in odd years. The parties were further ordered to execute forms necessary to effectuate this provision as required by federal law. In 2017, the former wife claimed the minor child as a dependent in violation of the agreement. The former husband filed a motion for contempt/enforcement, and the former wife defended on the basis that the former husband had been late on his child support payments. The court ultimately found the marital settlement agreement did not require the former husband to be current on support payments in order to claim the child for tax purposes. The former wife was ordered to amend her tax return to remove the child, to provide a copy of the amended tax return to the former husband’s counsel and to file a redacted copy of the tax return with the clerk of court.

The former husband filed a motion for contempt alleging the former wife had not complied with the court’s order to amend her tax return. A hearing was scheduled on this motion, and 10 days prior, the former wife filed a copy of her amended return showing she had deleted the child as a dependent. Three days before the hearing, the former wife requested to appear at the hearing by telephone since her lawyer had withdrawn. The hearing proceeded on the scheduled date without the former wife’s appearance, and the trial court entered an order granting the motion for contempt. The court entered an order obligating the former wife to “provide her amended 1040x along with all attachments and schedules, along with proof of filing same with the IRS.” The former wife then filed a motion to vacate the order contending she had complied with the previous order and that she had a receipt for scheduling of a call through CourtCall which was accepted. She alleged she waited on the phone for 40 minutes for the hearing to start but was never let in to the hearing by phone. The court summarily denied her motion and she appealed.

The appellate court agreed with the former wife that denial of her motion without a hearing was improper. The court held “The former wife’s motion to vacate and the attachments thereto presented a colorable entitlement to relief. She alleged that she requested a telephonic hearing and apparently was allowed to schedule one, waited on the phone for forty minutes, and found out only days later that the trial court denied her request on the day of the hearing.” The court further held “Further, the former wife’s motion to vacate alleged a meritorious defense to the motion for commitment, contempt and/or enforcement— that she allegedly had already complied with the prior order by filing the amended tax return deleting the child as a dependent, and by providing a copy of the amended tax return to the former husband’s attorney. As to the second order requiring the former wife to provide the former husband’s attorney with all the schedules and attachments to the tax return, that requirement was not expressed in the prior order, nor was it requested in the motion for commitment. Thus, the motion to vacate alleged another colorable entitlement to relief, that is, being denied due process by having to provide relief which was not expressly requested or granted in the prior order.”

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