Kozell v. Kozell

• Decision Date: 26 March 2014
• Docket Number: No. 4D12-2404,4D12-2404
• Parties: RICHARD STEVEN KOZELL, JR., Appellant, v. THERESA ANN KOZELL, Appellee.
• Court: Florida District Court of Appeals

RICHARD STEVEN KOZELL, JR., Appellant, v. THERESA ANN KOZELL, Appellee.

No. 4D12-2404

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

January Term 2014

March 26, 2014

LEVINE, J.

The former husband appeals an order denying his petition for modification of child support, entered after the trial court granted the former wife's motion to vacate an order granting modification of child support. We find that the trial court lacked jurisdiction to vacate its earlier order. As such, we reverse for reinstatement of the order granting modification.

The former husband petitioned for modification of child support due to a decrease in his income. On February 3, 2012, the trial court entered an order granting the petition consistent with the magistrate's recommendation. On February 21, 2012, the former wife served and filed a motion to vacate the order. Although the motion sought to "vacate" the order, substantively the motion sought rehearing. The trial court initially denied the motion as untimely, finding that the time for rehearing had passed. The trial court reversed its ruling after the former wife argued that her motion was timely when one added five days for the mailing of the judgment.

Contrary to the former wife's argument below, five days are not added to the time for moving for rehearing. The five-day rule in effect in February 2012 applied only "[w]hen a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail." Fla. R. Civ. P. 1.090(e) (emphasis added). In contrast, the time for filing a motion for rehearing runs from the date the judgment is rendered, not from the time of service. FloridaFamily Law Rule 12.491(f) provides that "[a]ny party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry." (emphasis added). Similarly, the 2012 version of Florida Rule of Civil Procedure 1.530(b) stated that a motion for rehearing "shall be served not later than 10 days after . . . the date of filing of the judgment." (emphasis added). See also Dominguez v. Barakat, 609 So. 2d 664, 664-65 (Fla. 3d DCA 1992) (recognizing that rule 1.090(e) applies "only when there is 'a prescribed period after . . . service . . . and the notice or paper is served . . . by mail,'" whereas the "service requirement of Fla. R. Civ. P. 1.530(b) runs from 'the filing of the judgment'").

The plain language of these rules makes clear that the five-day mailing rule did not apply, and the former wife's motion to vacate was untimely. Because the motion was untimely, the trial court lacked jurisdiction to reverse its ruling. See Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970); Dep't of Revenue ex rel. Cockerham v. Cockerham, 981 So. 2d 630, 632 (Fla. 2d DCA 2008). As such, we reverse and remand with directions to reinstate the order granting the petition for modification.

In his initial brief, the former husband also challenges an order denying his motion to disqualify the trial judge, which he filed a week and a half after the court denied his motion for rehearing. As the former wife points out, this court lacks jurisdiction to review this order, as it is not mentioned in or attached to the notice of appeal. See Fla. R. App. P. 9.110(d); Seaboard Air Line R.R. Co. v. Holt, 80 So. 2d 354, 357 (Fla. 1955); Greyhound Corp. v. Carswell, 181 So. 2d 638, 640 (Fla. 1966). Even if w...