Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Once an appeal is filed in a Florida family law case, the trial court is prohibited from taking action on the issue appealed. For example, the trial court generally cannot enter an amended judgment if the original judgment is being appealed. This was an issue in the case Digiorgio v. Digiorgio, 5D2022-2406 (Fla. 5th DCA June 28, 2024).
The former husband in this case appealed an amended final judgment entered by the court. While his appeal was pending, the trial court entered a parenting plan as an exhibit to the amended final judgment. It seems the trial court forgot to attach the parenting plan to the amended final judgment, but it did not do so until after the former husband filed his notice of appeal. The appellate court held “As the trial court’s action had the effect of modifying the substance of the amended final judgment under review, the trial court was without jurisdiction to take that action. See, e.g., Duncan v. Duncan, 598 So. 2d 205, 207 (Fla. 2d DCA 1992) (‘[A] trial court does not have jurisdiction to enter an order which modifies the substance of a final judgment after a party files a notice of appeal.’) [. . .]”
The court concluded “Accordingly, we affirm the trial court’s amended final judgment of dissolution of marriage but remand for vacatur of the trial court’s order entering the parenting plan as an exhibit to the amended final judgment of dissolution of marriage. Our remand for vacatur is not a comment on the propriety of the substance of the parenting plan and is without prejudice to any party seeking appropriate relief, if any, or the trial court taking further action as authorized by the law, following the issuance of the mandate in this appeal.”
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