Posted by Nydia Streets of Streets Law in Florida Divorce
Under Florida Rule of Family Law Procedure 12.540(b), a party can ask the court to set aside a court order based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment is void; or (5) that the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. This rule states “The motion must be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, order, or proceeding was entered or taken; except that there will be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases.” The timing of a hearing on this type of motion was an issue in the case Brooks v. Brooks, 3D21-1693 (Fla. 3d DCA June 8, 2022).
The parties were divorced in 2003. Almost one year later, the former husband filed a motion to set aside the final judgment, alleging there was a mistake as to survivorship benefits in the qualified domestic relations order entered the year before. Over another year later, the former husband filed an amended motion seeking the same relief, but did not pursue a hearing on the motion. About 15 years later, the former husband filed a motion to reopen the case and set his 2005 amended motion for hearing. The former wife filed a motion to dismiss which was granted, and the former husband appealed.
The appellate court noted that while the former husband did file the motion on time, he did not pursue a hearing on time, and his failure to do so rendered his request untimely. The court held “The trial court correctly recognized that an attempt to vacate a final judgment pursuant to 1.540(b)(1) after sixteen years would inherently frustrate the rule’s purpose in finality of judgments and limiting a trial court’s jurisdiction.” The court further held “We find no error in the trial court’s determination that the former husband did not bring his amended motion to vacate under subsection (5) within a reasonable time. The former husband knew of the alleged mistake in 2004, yet did not seek resolution on his motion until 2020. Significantly, the former husband did not allege any new or changed post-judgment circumstances in his written motion, nor does the record reveal any such circumstances. Quite the opposite, the record reveals the former husband was aware of the alleged grounds raised within one year of the final judgment and failed to seek resolution on his motion for over sixteen years. The former husband’s motion to vacate also unequivocally provides he had a chance to litigate his survivorship benefits before judgment and these benefits were not new issues that arose after judgment.”
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