SALLY A. WEINSCHEL, APPELLANT,
v.
BRUNO O. WEINSCHEL, APPELLEE
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In this dissolution of marriage case, the trial court dismissed the husband's complaint for lack of personal jurisdiction and the wife's counterclaim, then struck the wife's motion for costs and attorney's fees. The appellate court affirmed the dismissals but reversed the striking of the costs motion and remanded for the trial court to consider the merits of the wife's motions for costs and attorney's fees.
The trial court erred in striking the wife's motion for costs because a wife entitled to costs may apply for them after a judgment of dismissal. Although the trial court correctly denied the motion under Rule 1.540 because it lacked jurisdiction after the notice of appeal was filed, the trial court is not precluded from reconsidering and ruling on the merits of the wife's motions for costs and attorney's fees after the appellate mandate is filed.
[1] A trial court may not strike a motion for costs filed after a judgment of dismissal.
[2] A trial court correctly denies a motion for relief under Rule 1.540 when an appeal has already been filed, as the court lacks jurisdiction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is our view that the trial court erred in striking the appellant wife's motion for costs. Certainly, if entitled to costs, the wife could apply for the same after judgment of dismissal. See Florida Rule of Civil Procedure 1.420(d).”
Establishes the core holding that the trial court was wrong to strike the motion for costs and that such motions are permissible after dismissal.
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Join FLexlaw to unlock all legal intelligenceThe husband filed a complaint for dissolution of marriage. The wife filed a counterclaim for relief unrelated to the dissolution. The trial court dism…
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PEARSON, Judge.
The husband, who is the appellee here, filed a complaint for dissolution of marriage. The wife filed a counterclaim for relief unconnected with dissolution. Upon the wife’s motion, the court dismissed the husband’s complaint upon the ground that the husband had not shown residency for the jurisdictional period. In the same order, the trial judge dismissed the wife’s counterclaim.
After entry of the final judgment, the wife filed a motion for assessment of costs and for attorney’s fees. Upon the motion of the husband, the wife’s motion for costs and attorney’s fees was stricken. The trial court relied upon Church v. Church, 338 So. 2d 544 (Fla. 3d DCA 1976); and Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976). In further pursuit of attorney’s fees, the wife filed a motion pursuant to Florida Rule of Civil Procedure 1.540, asking that the court amend its final judgment to reserve jurisdiction for the award of attorney’s fees. The motion was denied.
It is our view that the trial court erred in striking the appellant wife’s motion for costs. Certainly, if entitled to costs, the wife could apply for the same after judgment of dismissal. See Florida Rule of Civil Procedure 1.420(d).
The trial court denied the wife’s motion for relief pursuant to Florida Rule of Civil Procedure 1.540 because the wife had already filed her appeal from the final judgment. The motion was grounded upon mistake because the court had, by a written order entered prior to the judgment, reserved ruling on the issue of attorney’s fees until after final hearing. The trial court correctly denied the motion because it did not have jurisdiction of the cause after the filing of a notice of appeal. See Burke v. Burke, 336 So. 2d 1237 (Fla. 4th DCA 1976). Nevertheless, the trial court is not deprived of the opportunity to correct the mistake and to rule on the merits of the wife’s motion. The motion may be refiled upon the filing of this court’s mandate in appeal no. 78-1228, which is the wife’s appeal from the judgment dismissing her counterclaim. We do not imply that the wife is entitled to costs and attorney’s fees, but simply that the trial court may proceed upon the motions.
Affirmed in part, reversed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)…to entertain a Florida Rule of Civil Procedure 1.540(b) motion while an appeal is pending in the absence of the appellate court’s relinquishment of jurisdiction. Glatstein v. City of Miami, 391 So. 2d 297 (Fla. 3d DCA 1980); Weinschel v. Weinschel, 368 So. 2d 388 (Fla. 3d DCA 1979). . The purpose of an award of attorneys’ fees in proceedings for dissolution of marriages or enforcement or modification of proceedings attendant upon the marital relationship, see Section 61.16, Florida Statutes (1979), is to eq…
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State v. Dick C.P. Lantz, 440 So. 2d 446 (Fla. 3d DCA 1983)…; Tosar v. Sladek, 393 So. 2d 61 (Fla. 3d DCA 1981); Glatstein v. City of Miami, 391 So. 2d 297 (Fla. 3d DCA 1980); Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D.C., 374 So. 2d 1018 (Fla. 4th DCA 1979); Weinschel v. Weinschel, 368 So. 2d 388 (Fla. 3d DCA 1979).…
Authorities Cited
- Melvyn B. Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976)
- James W. Church v. Josephine Church, 338 So. 2d 544 (Fla. 3d DCA 1976)
- Burke v. Burke, 336 So. 2d 1237 (Fla. 4th DCA 1976)