LORETTA J. FERENC, WIFE, APPELLANT,
v.
JOHN M. FERENC, HUSBAND, APPELLEE
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In a dissolution of marriage proceeding, the trial court transferred venue from Orange County to Union County at the defendant-husband's request. The wife appealed the denial of her subsequent motion to transfer back to Orange County, arguing the original transfer was improper. The appellate court affirmed, holding that the wife waived her right to challenge the original transfer by failing to appeal it timely and instead raising the issue months later in a separate motion.
The court affirmed the denial of the wife's motion to change venue, holding that the wife waived her right to challenge the original transfer by failing to appeal the non-final order transferring venue from Orange County to Union County and instead raising the issue more than four months later in a separate motion. The wife could have appealed pursuant to Rule 9.130(a)(3)(A), Fla.R.App.P., but chose not to do so.
[1] A party waives the right to challenge an order transferring venue when they fail to appeal that order and instead file a subsequent motion to re-transfer the venue.
[2] A party may seek review of a venue issue after final disposition of the case, even if an earlier interlocutory appeal was not taken.
Previewing 2 of 3 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“appellant's failure to appeal from the original order transferring venue from Orange County to Union County constituted a waiver of her right to complain at this time that the transfer was erroneous”
Establishes the primary holding that failure to timely appeal the original transfer order waived the right to challenge it later
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Join FLexlaw to unlock all legal intelligenceThe husband filed a petition for dissolution of marriage in Orange County in July 1987 while serving a 25-year sentence at Union County Correctional I…
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SHIVERS, Chief Judge.
Appellant, respondent in a dissolution of marriage proceeding filed by appellee, appeals from an order of the trial court denying her motion to change venue. We affirm, for the reasons set out below.
The record on appeal indicates that appellee originally filed a petition for dissolution of marriage in Orange County, Florida, in July of 1987. Both at that time, and when the instant appeal was filed, appellee was serving a 25-year term of incarceration at Union County Correctional Institute. Appellant/respondent filed an answer to the petition for dissolution, and appellee thereafter filed several other pleadings, including two petitions for writ of mandamus demanding that the trial court take immediate action on his petition.
In July of 1988, the trial court wrote a letter to appellee, stating that it was not the responsibility of Orange County taxpayers to transport him from Union County to Orange County for a civil proceeding, and advising appellant to either voluntarily dismiss the case or to move to transfer to a “more appropriate forum.” Accordingly, appellee filed a motion to transfer venue to Union County, several days after receiving the trial court’s letter. Although a copy of appellee’s motion was sent to appellant’s attorney, no response was filed and, on August 4, 1988, the trial court granted appellee’s motion and transferred the case to Union County. A copy of the transfer order was also sent to appellant’s attorney, however, no interlocutory appeal was taken therefrom. Instead, appellant waited until December 15, 1988 — more than four months after the case was transferred to Union County — and then filed a motion to transfer the case back to Orange County, alleging that the original transfer had been improper. The trial court found that venue was indeed proper in Orange County rather than Union County, but denied appellant’s motion on the basis that the court had no authority to transfer the ease back to Orange County.
Appellant has now filed an interlocutory appeal with this court, arguing that the trial court in Union County erroneously denied her motion for change of venue. We affirm, on the basis that appellant’s failure to appeal from the original order transferring venue from Orange County to Union County constituted a waiver of her right to complain at this time that the transfer was erroneous. Wife could have appealed the nonfinal order of the circuit court in Orange County, pursuant to Rule 9.130(a)(3)(A), Fla.R.App.P. Instead, appellant chose to raise the issue of the original transfer from Orange County to Union County in a separate motion to transfer, filed more than four months later. We note that our affirmance in the instant case does not bar appellant from seeking review of the venue issue after final disposition of the case in the trial court. Rule 9.130(g), Fla.R.App.P. See Longo v. Longo, 515 So. 2d 1013 (Fla. 1st DCA 1987). Accordingly, the order of the trial court in Union County, denying appellant’s motion to change venue, is hereby affirmed.
ERVIN and NIMMONS, JJ., concur.
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Vinsand v. Vinsand, 179 So. 3d 366 (Fla. 2d DCA 2015)…tory appeal. Fla. R.App. P. 9.130(a)(3)(A). But such an appeal is not mandatory, and failure to pursue an interlocutory appeal on venue does [*369] not bar review - of the venue issue on appeal after final disposition of the. case. Ferenc v, Ferenc, 553 So. 2d 1329, 1330 (Fla. 1st DCA 1989); Fla. R.App. P. 9.130(h) (stating that the rule permitting appellate review of specified nonfinál orders “shall not preclude initial review of a non-final order on appeal from the final order in the cause”). While deferrin…
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Authorities Cited
- Longo v. Longo, 515 So. 2d 1013 (Fla. 1st DCA 1987)