Tag Archives: Florida Rule of Civil Procedure 1.530

A Motion for Rehearing in a Family Law Matter May be Vital to Preserve Your Argument for Appeal

An effective appeal begins in the lower court.  In Florida, the general rule is that an issue must first be presented to the trial court before it can be raised on appeal.  An appellate court is not going to cut your client a break because the stakes are high. As a result, it is important to know when and how to preserve errors on appeal.    

Recently, the Florida Supreme Court amended Florida Family Law Rule 12.530(a) to provide: “[t]o preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise the issue in a motion for rehearing under this rule.”  This rule is not retroactive.  See McGill v. McGill,2023 Fla. App. Lexis 922 (Fla. 2d DCA 2023). It only applies to judgments entered after the amendment became effective. Id. The Fourth District Court of Appeal has begun to apply this new rule. 

The Fourth District Court of Appeal has recognized that no longer may a party raise for the first time on appeal the failure to attach a child support guideline scoresheet to the final judgment. Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022).  Rather, in light of Fla. Fam. L. R. Proc.12.530(a), such error must be raised in a motion for rehearing first. Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022).

More importantly, up until this new rule, the Fourth District Court of Appeal had advised that it was not going to require in family law cases a motion for rehearing to preserve the issue of the trial court’s failure to make statutorily required findings of fact regarding alimony, equitable distribution and child support unless a rule was put in place.  Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018).  Now that this rule has been put in place, Fox v. Fox, may no longer be good law. 

Moreover, the Fourth District Court of Appeal recently recognized based on this rule [or the identical civil rule] that a court’s failure to make findings of fact in a final judgment, cannot be raised on appeal unless preserved by a motion for rehearing challenging the trial court’s lack of findings of fact.  See Hiatt v. Mathieu, 350 So. 3d 387, 388 (Fla. 4th DCA 2022)(“Based on the amended rule, when a trial court fails to make findings of fact or attach a child support guidelines scoresheet to the final judgment, the parties must bring this deficiency to the attention of the trial court through a motion for rehearing where it can be easily corrected before an appeal.”); Jackson v. City of S. Bay, Fla., 358 So. 3d 18 n.1 (Fla. 4th DCA 2023)(Noted based on Fla. R. Civ. P. 1.530(a) that the issue was “not preserved because it was not addressed in the final judgment and Jackson did not move for rehearing challenging the trial court’s lack of findings concerning the handwritten notes.”).  As a result, when reviewing the final judgment, if the court has failed to make required findings of fact or failed to attach a child support guideline scoresheet then you should file a motion for rehearing to preserve the issue for appeal.  Otherwise, the appellate court may not address the merits of the issue on appeal. 

The Florida Supreme Court Clarifies the Importance of a Motion for Rehearing When Challenging a Trial Court’s Findings

In the end of August 2022, the Florida Supreme Court, acting on its own motion, has amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530. See In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).  These amendments add a sentence to Fla. R. Civ. P. 1.530(a) and Fla. Fam. L. R. Proc 12.530(a), which states: “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise the issue in a motion for rehearing under this rule.” In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).     

Accordingly, these amendments make it clear “that filing a motion for rehearing is required to preserve an objection to insufficient trial court findings in a final judgment order.” In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).   These amendments do not change any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review. In re Amendments to Fla. Rule of Civil Proc. 1.530, 47 Fla. L. Weekly S204 (Fla. August 25, 2022).

These amendments took effect immediately, however, due to these revisions not being published for comment previously, interested persons have been given 75 days, until November 8, 2022 to file comments with the Court.

DON’T ASSUME THE FINAL JUDGMENT IS ENFORCEABLE

A final judgment has been entered.  A timely and authorized motion for rehearing was filed by the opposing party pursuant to Fla. R. Civ. P. 1.530 or Fla. Fam. L. R. P. 12.530 and it is currently pending.   The opposing party is not complying with the final judgment and your client wants you to move to enforce the final judgment.

Don’t assume the final judgment is enforceable. When a motion for rehearing, which is timely and authorized, is pending, it has been recognized by Florida Courts that the enforcement of the final judgment is suspended until the motion is disposed of. See Francois v. Library Square Ass’n, 250 So. 3d 728 (Fla. 4th DCA 2018); 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So. 3d 470 (Fla. 3rd DCA 2016); Rohret v. Zucco, 2022 Fla. App. Lexis 843 (Fla. 2nd DCA 2022); Diaz v. U.S. Bank, N.A., 239 So. 3d 151 (Fla. 3rd DCA 2018). Moreover, it has been considered error for a trial court to enforce a final judgment during this period. See 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So. 3d 470 (Fla. 3rd DCA 2016).

Additionally, at least one court has attempted to try to get around this restriction by entering an order denying a motion for rehearing “nunc pro tunc” to a date preceding the enforcement of the judgment.  The Second District Court of Appeals did not agree with this tactic and rather held that it does not rectify the defect.  See Rohret v. Zucco, 2022 Fla. App. Lexis 843 (Fla. 2nd DCA 2022).  Thus, it is probably best to wait until the motion for rehearing is disposed of before you move to enforce the final judgment.

BEWARE OF THE UNRECORDED FINAL JUDGMENT

You won your case. The court entered a final judgment in your client’s favor.  Thirty days has passed since the final judgment was filed with the clerk of court.  The opposing party did not file a motion for rehearing or motion to alter or amend the judgment or any motion that would toll the time to file an appeal.  The opposing party did not file a notice of appeal. Your client is very happy with you.       

But you did not make sure that the final judgment was recorded in the official records.  Why does this matter?  By failing to ensure the final judgment is recorded, you have left open the opposing parties right to file a motion to alter or amend the judgment, which is a motion that tolls the time for an appeal.

Fla. R. Civ. P. 1.530(g) provides that a motion to alter or amend a final judgment be served not later than fifteen days after entry of the judgment.  Entry of the judgment refers to the date on which the judgment is recorded in the court’s official records.  See Fisher v. Fisher, 787 So. 2d 926 (Fla. 2d DCA 2001)(“Entry of judgment” in Fla. R. Civ. P. 1.530(g) is “the date on which the judgment is recorded in the court’s official records.”); Casto v. Casto, 404 So. 2d 1046 (Fla 1981)(“It is well settled that “entry of judgment”…means the recording of the judgment-the spreading of the judgment upon the court’s official records”). A motion to alter or amend the judgment is timely when it precedes the entry of judgment.  Fla. R. Civ. P. 1.530(g); S. Atl. Constr. Corp. v. First Corp., 419 So. 2d 729 (Fla. 4th DCA 1982)(Timely filed because served within 10 days from when the judgment was recorded, which was within 10 days from entry of judgment.); Hauss v. Waxman, 866 So. 2d 758 (Fla. 4th DCA 2004)(if treated as a motion to alter or amend the final judgment under rule 1.530(g), then the motion was timely filed because it preceded the entry of a final judgment).   Thus, if the final judgment is not recorded, the opposing party has an open ended right to pursue a motion to alter or amend the final judgment.

Oh no.  This is a motion that opens the door to an appeal.   Generally, a party has 30 days from rendition of the final judgment to file an appeal.  Fla. R. App. P. 9.110(b).  Rendition generally means from when the final judgment “is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h).  However, the meaning of rendition changes when a motion to alter or amend is filed. See Fla. R. App. P. 9.020(h).  If an authorized and timely motion to alter or amend has been filed in the lower tribunal directed to a final judgment then the final judgment “shall not be deemed rendered as to any existing party until all of the motions are …resolved by the rendition of an order disposing of the last of such motions.”  Fla. R. App. P. 9.020(h). In other words, when a timely and authorized motion to alter or amend is filed, the opposing party’s time to file an appeal of the final judgment is different.  It is generally now 30 days from when the order disposing of said motion is filed with the clerk of court.  Thus, the door to an appeal of a final judgment, which was filed with the clerk of court more than 30 days prior, is no longer fully closed. Don’t make this mistake.  As soon as the court rules in your client’s favor make sure it is recorded in the official records. Don’t leave this loophole for your opposition.