Carneal v. Carneal, 5D04-1049.

• Decision Date: 21 May 2004
• Docket Number: No. 5D04-1049.,5D04-1049.
• Citation: 873 So.2d 562
• Parties: Robert CARNEAL, Sr., Petitioner, v. Alyson CARNEAL, Respondent.
• Court: Florida District Court of Appeals

873 So.2d 562

Robert CARNEAL, Sr., Petitioner, v. Alyson CARNEAL, Respondent.

No. 5D04-1049.

District Court of Appeal of Florida, Fifth District.

May 21, 2004.

Patricia K. Herman, Orlando, for Petitioner.

Michael J. Barber of Michael J. Barber, P.A., Kissimmee, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Respondent.

PER CURIAM.

Robert Carneal, Sr., ("the former husband"), petitions for a writ of prohibition to prevent the trial court from conducting a hearing relating to the sale of a marital residence which is the subject of a pending appeal in this court. Because the trial court has done nothing except schedule a hearing at the request of a litigant, we deny the petition.

A hearing was scheduled for April 5, 2004, at the request of the former wife, to hear arguments on her "Motion for Enforcement of Final Judgment Regarding Refinancing of Former Marital Residence." Although counsel for the former husband informed the trial court that a matter related to the scheduled motion had been appealed, the trial court indicated that the hearing would take place. The former husband then filed this petition and this court entered an order to show cause which operated as a stay of the enforcement proceedings.

The rule limiting trial court jurisdiction pending an appeal provides:

Rule 9.600. Jurisdiction of Lower Tribunal Pending Review

(a) Concurrent Jurisdiction. Only the court may grant an extension of time for any act required by these rules. Before the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any other procedural matter relating to the cause, subject to the control of the court.

(b) Further Proceedings. If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal.

(c) Family Law Matters. In family law matters:

(1) The lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, attorneys' fees and costs for services rendered in the lower tribunal, temporary attorneys' fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.

(2) The receipt, payment, or transfer of funds or property under an order in a family law matter shall not prejudice the rights of appeal of any party. The lower tribunal shall have the jurisdiction to impose, modify, or dissolve conditions upon the receipt or

...