201 So. 3d 141
Fla. Dist. Ct. App.2015Background
- Parties divorced in 2002; judgment incorporated a mediated settlement requiring John Theodorides to pay monthly child support for the minor child.
- John paid for over a decade and, upon retirement (effective Jan 1, 2013), sought modification due to reduced income and child’s entitlement to derivative Social Security.
- A hearing officer recommended reversing obligation so the former wife, Mrs. Theodorides, would pay $384/month retroactive to his retirement; the trial court accepted and entered an order on March 24, 2013.
- Counsel (an Assistant State Attorney working with the Department of Revenue) did not object, move for rehearing, or appeal the confirmation order; instead counsel filed a Rule 12.540 motion on April 10, 2013, seeking relief from the March 24 order.
- The same trial judge granted relief under Fla. Fam. R. P. 12.540 and vacated the child-support change.
- The district court reversed, holding Rule 12.540 (which incorporates Fla. R. Civ. P. 1.540) is not available to vacate substantive judicial error or to effect a change in child-support awards once the rehearing period has passed; relief should have been sought by rehearing or appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fla. Fam. R. P. 12.540 is an appropriate vehicle to vacate the March 24, 2013 order changing child support | Mrs. Theodorides contended the confirmation order contained an error (absence of worksheet attachment) and sought relief under Rule 12.540 | Theodorides argued the change was substantive/judicial error and not a clerical or excusable mistake; relief required rehearing or appeal | Rule 12.540 unavailable to correct substantive or judicial error in a final child-support order; motion improperly used — reversed and remanded with directions to deny the motion |
| Whether exceptional circumstances justified departure from the rule barring 1.540 relief for substantive error | Mrs. Theodorides urged an exception given the facts (procedural/administrative circumstances) | Court: allowing such an exception would swallow the rule; Rule 1.540 not a substitute for rehearing or appeal | No exception; appellate court declined to create an exception and reaffirmed that Rule 1.540(b) cannot be used to correct substantive changes to child support |
Key Cases Cited
- Dep’t of Revenue v. Annis, 159 So. 3d 263 (Fla. 2d DCA 2015) (child-support award change is substantive)
- Commonwealth Land Title Ins. Co. v. Freeman, 884 So. 2d 164 (Fla. 2d DCA 2004) (judicial error / mistaken view of law not grounds under rule 1.540)
- Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990) (Rule 1.540 not intended as substitute for correcting judicial error)
- Moforis v. Moforis, 977 So. 2d 786 (Fla. 4th DCA 2008) (order adopting visitation schedule not subject to relief under Rule 1.540(b))
- Aqua Life Corp. v. Reyes, 160 So. 3d 117 (Fla. 3d DCA 2015) (trial court without jurisdiction to vacate final judgment after rehearing period except on narrow Rule 1.540 grounds)
- Herskowitz v. Herskowitz, 513 So. 2d 1318 (Fla. 2d DCA 1987) (same principle regarding post-rehearing jurisdiction)