Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What can I do if I do not agree with the recommended order of the general magistrate in my family law case? This is a question asked by many who have had their case heard by a magistrate and are wondering what to do if the findings contained in the recommended order are inaccurate. This was an issue in the case Gatchell v. Kryvosheia, 5D22-2010 (Fla. 5th DCA September 1, 2023).
In this case, the former husband appealed the trial court’s entry of the general magistrate’s recommended order to set aside a marital settlement agreement and parenting plan previously entered by the trial court. Apparently, the former husband failed to file a motion to vacate the recommended order, and he appealed.
The appellate court dismissed the appeal, noting Fla. Fam. L. R. P. 12.490(e)(3) states “Upon receipt of a recommended order, the court must review the recommended order and must enter the order promptly unless the court finds that the recommended order is facially or legally deficient, in which case, it must identify the deficiency by written order and remand to the general magistrate to address and, if necessary, conduct further proceedings without the necessity of a new order of referral to general magistrate. Any party affected by the recommended order may move to vacate the recommended order by filing a motion to vacate within 10 days from the date of entry.”
The appellate court held “A party must still seek relief from the trial court through a timely motion to vacate the recommended order, as entered, to preserve issues for appeal and thus invoke appellate jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(iii)b. and c. Accordingly, because Former Husband failed to file a timely motion to vacate in accordance with Family Rule 12.490(e)(3), Former Husband’s appeal is dismissed.”
Schedule your meeting with a Miami family law attorney for specific advice about how the law may apply to your case.