Michelle Scheller v. Salvatore Sollecito

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
MICHELLE SCHELLER,
Appellant,
v.
SALVATORE SOLLECITO,
Appellee.
No. 4D13-4055
[August 27, 2014]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Laura M. Watson, Judge; L.T. Case No.
10-16213 FMCE.
Michael A. Hymowitz of Braverman & Hymowitz, Fort Lauderdale, for
appellant.
No brief filed on behalf of appellee.
MAY, J.
A mother seeks review of an order by a successor judge, which
effectively vacated a final order in a paternity action. She argues the
successor judge erred in sua sponte ordering a new trial in the paternity
action unless the parties could reach an agreement on the wording of the
final order. We agree and reverse.
A father petitioned the court to determine paternity. The original trial
court heard the evidence and orally pronounced its rulings at a November
19, 2012 hearing. The trial court then entered a final written order,
incorporating its oral rulings by reference and attaching the transcript.
The order required the parties to attend reunification counseling. The
mother was to submit a list of three therapists covered by her health
insurance. The father was to select a therapist from that list.
The father chose a particular therapist, but for some unknown reason,
the therapist was no longer available. The father asked the mother if she
would see another therapist. The mother did not respond.
The father then moved for sanctions and to compel appointment of the
alternative therapist as the reunification counselor. The mother
responded by moving for contempt against the father for contacting the
children in violation of the final order.
Due to the retirement of the original trial judge, a successor judge heard
the matter on September 30, 2013. That hearing resulted in the following
order:
The Court has reviewed the file and the hearing from the final
order transcript was not reduced to a written Final Judgment
with findings. [sic] Therefore, unless the parties can agree on
the wording of the Final Judgment, the hearing will be de
novo.
The mother appealed the order. The notice of appeal explained that the
successor judge sua sponte vacated the final order unless the parties could
agree on the wording for the final order.
Under Rule 1.530(d) of the Florida Rules of Civil Procedure, a trial court
may, on its own initiative, “order a rehearing or a new trial for any reason
for which it might have granted a rehearing or a new trial on motion of a
party,” but that authority exists only within 15 days following final
judgment. Fla. R. Civ. P. 1.530(d) (incorporated by reference in Fla. Fam.
L. R. P. 12.530). Sua sponte relief from judgment under Rule 1.540 is also
limited. Fla. R. Civ. P. 1.540 (incorporated by reference in Fla. Fam. L. R.
P. 12.540).
A trial court may, on its own initiative, correct clerical errors
at anytime pursuant to Florida Rule of Civil Procedure
1.540(a), but judicial errors, which include errors that
affect the substance of a judgment, must be corrected
within ten days after entry of the judgment pursuant to
Florida Rule of Civil Procedure 1.530, or by appellate review.
Corvette Country, Inc. v. Leonardo, 997 So. 2d 1272, 1273 (Fla. 4th DCA
2009) (emphasis added) (citations omitted).
Here, the final order was entered on December 27, 2012. The successor
judge entered an order sua sponte granting rehearing on September 30,
2
2013. This ruling exceeded the 15-day limit under Rule 1.530 and the 10-
day limit under Rule 1.540. The trial court lacked jurisdiction to enter the
order on appeal. See Kirby v. Speight, 217 So. 2d 871 (Fla. 1st DCA 1969).1
We therefore reverse and remand with instructions to enforce the final
order as written.
Reversed and Remanded.
CIKLIN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 While the successor judge indicated an inability to determine the terms of
the final order, we have reviewed the transcript of the paternity hearing and find
the terms sufficiently detailed. Because the final order incorporated the oral
findings, and the transcript was attached, not only was the court’s attempt to
vacate the final judgment untimely and without jurisdiction, there was no reason
to vacate the final judgment.
3