Opinion
No. 1D22-733
08-02-2023
Kenneth STEPHENS, Appellant, v. Morgan STEPHENS, Appellee.
Zachary Vandyke, Panama City Beach, for Appellant. John Young Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
Zachary Vandyke, Panama City Beach, for Appellant.
John Young Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
Per Curiam
Kenneth Stephens (Father) seeks review of the trial court's denial of his self-titled motion for rehearing and relief from final judgment of dissolution. He argues the trial court abused its discretion in denying rehearing after proceeding with the trial in his absence and setting the trial less than thirty days from notice in violation of Florida Family Law Rule of Procedure 12.440. We find no merit in the second argument but vacate the order and remand for an evidentiary hearing.
Facts
In January 2021, Morgan Stephens (Mother) filed a petition for dissolution of marriage from Father. The parties were married in 2017 and separated in 2020. Father was in the Army and deployed out of the country at various times. The parties had one child together, born in 2019. Mother's petition requested, among other things, shared parental responsibility, that the trial court develop a parenting plan and time-sharing schedule that was in the child's best interest, and child support consistent with the guidelines. Father filed a counter-petition for dissolution of marriage also requesting shared parental responsibility, child support per the guidelines, and shared decision-making authority.
On November 23, 2021, Mother filed a notice with the trial court advising the case was ready for setting of a non-jury trial. She sent a Notice of Hearing to Father's counsel. That same day, the trial court issued an order scheduling the trial for December 20, 2021. On January 10, 2022, the trial court issued the Final Judgment of Dissolution of Marriage. The final judgment detailed that Father and his counsel failed to appear at trial and that Father had not seen the child since May 2020, making only marginal attempts to maintain contact. The trial judge ultimately ordered that the parties would share parental responsibility but awarded Mother ultimate decision-making authority as it relates to the following: education/academic matters; non-emergency medical/dental care; religion/religious training; extra-curricular activities; counseling or mental health care; and childcare. Mother was also awarded majority time-sharing, but the final judgment did not establish a timesharing schedule, instead reserving jurisdiction for future hearing if the parties could not agree on a schedule.
On January 25, 2022, a motion was filed by Father's counsel. The motion requested that the final judgment be set aside because the trial proceeded in Father's absence, that his absence was the result of excusable neglect, and that the setting of the trial less than thirty days from the notice violated procedural rules. Father's counsel asserted that on the day he received the pre-trial order he and his paralegal emailed counsel for Mother and staff and advised that he was unavailable on the day the trial was scheduled. No response was received. He attached the emails as exhibits. Further, he advised that he contracted pneumonia and was out of the office from November 24, 2021, through December 7, 2021. Attached to the motion was a note from his physician confirming his illness and treatment dates. Father's counsel also advised that when he returned to the office, he "handled business to catch up from the long absence and this case was inadvertently overlooked." He asserted that this conduct was "excusable neglect, not intentional or contumacious in nature." Father's counsel requested that the motion be granted, and Father be given the opportunity to be heard on the best interest of the child before the trial court determined child custody matters. The trial court summarily denied the motion. This timely appeal followed.
Analysis
"The standard of review for an order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of discretion." Buckman v. Beighley , 128 So. 3d 133, 134 (Fla. 1st DCA 2013) (quoting Carmona v. Wal-Mart Stores, E., LP , 81 So. 3d 461, 464 (Fla. 2d DCA 2011) ). Florida Family Law Rule of Procedure 12.540(b) provides:
The family law rule uses the same material language as Florida Rule of Civil Procedure 1.540(b)(1). "As such, ‘motions filed under rule 12.540(b) are governed by the body of law applicable to rule 1.540(b).’ " Gjokhila v. Seymour , 349 So. 3d 496, 499 n.2 (Fla. 1st DCA 2022) (quoting Sanchez v. Sanchez , 285 So. 3d 969, 974 n.1 (Fla. 3d DCA 2019) ).
On motion and on such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect:
Despite its designation as a motion for rehearing, Father's motion is a request for relief from judgment due to excusable neglect under rule 12.540(b)(1). See Baker v. Baker , 538 So. 2d 74, 75 (Fla. 1st DCA 1989). A rule 12.540(b)(1) motion is not a tolling motion. Accordingly, the appeal here cannot be of the dissolution judgment itself because it is untimely. The appeal here must be of the order denying the motion for relief from judgment, a separate appealable final order which is appealable as a specified final order under Florida Rule of Appellate Procedure 9.130(a)(5). Accordingly, our review is limited to whether the trial court properly denied the motion for relief from judgment.
The final judgment was entered on January 10, 2022. The Notice of Appeal was filed on March 14, 2022, sixty-three days after the final judgment.
In the motion, Father contends he was denied his day in court through no fault of his own, and his absence at trial was the result of excusable neglect. Courts have consistently found excusable neglect where an attorney fails to appear at a hearing due to secretarial error or inadvertence. See, e.g., Bank of N.Y. Mellon v. Depiero , 178 So. 3d 552, 553 (Fla. 1st DCA 2015) (citing Elliott v. Aurora Loan Servs., LLC , 31 So. 3d 304 (Fla. 4th DCA 2010) ("Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’ ")).
The motion averred that Father's counsel notified opposing counsel that he was not available on the proposed trial date, and he did not receive a response. He then contracted pneumonia and was ill for weeks, and upon returning and attempting to catch up, he failed to calendar the trial. Mother's attorney did not file a response raising objections to Father's motion. Some forty days later, the trial court entered an order summarily denying the motion for rehearing. These undisputed facts constitute the type of breakdown in normal office procedure which may constitute excusable neglect pursuant to rule 12.540(b). See Noel v. James B. Nutter & Co. , 232 So. 3d 1112, 1116 (Fla. 3d DCA 2017) (citing Carter, Hawley, Hale Stores, Inc. v. Whitman , 516 So. 2d 83, 83–84 (Fla. 3d DCA 1987) ).
Here, both parties requested shared parental responsibility, which was granted in the final judgment. However, the final judgment went further in that it granted Mother majority timesharing and ultimate decision-making authority without hearing from Father on the best interest of the child. Mother claims that any review of timesharing is premature given that the trial court reserved jurisdiction on setting a schedule if the parties could not agree. But Father is not appealing the award of timesharing itself. Rather, he is seeking relief from final judgment on the basis that he did not have the opportunity to be heard due to excusable neglect.
The motion and attachments here make allegations of excusable neglect. But allegations and attachments alone are not the same as evidence, and we cannot determine excusable neglect based on those allegations. That said, the allegations were sufficient to warrant an evidentiary hearing, and the trial court abused its discretion by denying one. Accordingly, the order denying the motion for relief is vacated and the case is remanded for an evidentiary hearing on the question of excusable neglect.
VACATE and REMAND .
M.K. Thomas, Tanenbaum and Long, JJ., concur.