ROSIE LEE WILLIAMS vs ROGER WILLIAMS

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ROSIE LEE WILLIAMS,
Appellant,
v. Case No. 5D23-478
LT Case No. 2022-DR-00660
ROGER WILLIAMS, SR.
Appellee.
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Opinion filed May 1, 2023
Nonfinal Appeal from the Circuit Court
for Clay County,
Gary L. Wilkinson, Judge.
J. Nickolas Alexander, Jr., of J.
Nickolas Alexander, Jr., P.A., Orange
Park, for Appellant.
No Appearance for Appellee.
LAMBERT, C.J.
Rosie Lee Williams (“Wife”) appeals the trial court’s “interim” order
entered after a hearing in her dissolution of marriage litigation below that she
asserts denied her motions for temporary spousal support, for interim partial
equitable distribution of marital assets, and to enjoin Roger Williams, Sr.
(“Husband”) from dissipating certain marital assets. While orders denying
an injunction or determining the right in family law matters to immediate
monetary relief are reviewable under Florida Rule of Appellate Procedure
9.130, the instant order merely granted Husband’s motion to stay the
proceedings. Such an order is not one of the listed nonfinal orders
reviewable under this rule. See Westwood One, Inc. v. Flight Express, Inc.,
940 So. 2d 1241, 1243 (Fla. 5th DCA 2006) (“Appellate jurisdiction to review
an appeal from a non-final order is limited to the types of rulings set forth in
rule 9.130 of the Florida Rules of Appellate Procedure.”).
This, however, does not end our analysis. The proper remedy for an
alleged erroneous entry of a stay is certiorari relief. See Shoemaker v. State
Farm Mut. Auto. Ins., 890 So. 2d 1195, 1197 (Fla. 5th DCA 2005) (“A trial
court has broad discretion to grant a motion for stay, but certiorari is available
as a remedy if the delay in proceedings constitutes a departure from the
essential requirements of law causing material injury that cannot be
remedied on direct appeal.” (citing Smith v. St. Vil, 765 So. 2d 60, 61 (Fla.
4th DCA 2000))). Accordingly, we shall treat this appeal as a petition seeking
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certiorari relief 1 and, for the following reasons, dismiss the petition.
To obtain a writ of certiorari, Wife here must show that the nonfinal
order entered is “(1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the case (3) that cannot
be corrected on postjudgment appeal.” Golub v. Golub, 325 So. 3d 164, 170
(Fla. 5th DCA 2021) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.
2011)). These “second and third prongs are sometimes collectively referred
to as the ‘irreparable harm’ element, and they are jurisdictional.” Id. (citing
Fla. Dep’t of Agric. & Consumer Servs. v. Mahon, 293 So. 3d 1091, 1095
(Fla. 5th DCA 2020)).
The trial court was apprised that petitions had been filed in separate
cases to determine whether Husband was mentally incapacitated and, if so,
to appoint a plenary guardian for Husband. The court indicated that it
anticipated that orders would be issued within the month resolving those
petitions and thus elected to briefly stay the dissolution of marriage
proceedings until these separate orders were entered.
1
See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy,
the cause shall be treated as if the proper remedy had been sought . . . .”
(emphasis added)); Pridgen v. Bd. of Cnty. Comm’rs of Orange Cnty., 389
So. 2d 259, 260 (Fla. 5th DCA 1980) (concluding that the language in rule
9.040(c) is mandatory).
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As previously indicated, a trial court has broad discretion to grant a
motion for stay. Shoemaker, 890 So. 2d at 1197. Under these specific
circumstances, we conclude that there is a lack of irreparable harm caused
by this brief stay. We therefore dismiss the petition. See Golub, 325 So. 3d
at 170 (recognizing that absent a showing of irreparable harm, an appellate
court lacks jurisdiction to issue a writ of certiorari and the proceeding is to be
dismissed, rather than denied (citing Mahon, 293 So. 3d at 1096)). Our
dismissal, however, is without prejudice to Wife seeking further relief if,
assuming Husband has been found incapacitated and had a guardian
appointed, the trial court does not thereafter vacate the stay in the dissolution
of marriage litigation.
DISMISSED, without prejudice.
BOATWRIGHT and KILBANE, JJ., concur.
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