PATRICK DUNAC
v.
GUYLAINE DUNAC
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This family law appeal addresses whether a former husband complied with Florida Family Law Rule of Procedure 12.490(e)(5) by merely requesting a hearing date in the body of his motion to vacate an order, without taking additional steps to actually schedule a hearing. The court held that the rule requires affirmative action to secure a hearing date, not merely written language requesting one.
The court held that Rule 12.490(e)(5) requires affirmative action directed at securing a hearing date beyond mere language in the motion requesting a hearing. Simply requesting a hearing within the motion to vacate does not satisfy the rule's requirement to 'seek to schedule' a hearing date.
[1] A party seeking review of a motion to vacate an order must take affirmative action to schedule a hearing date at the same time the motion is filed.
[2] A motion to vacate an order does not satisfy the requirement to seek a hearing date merely by including language requesting a hearing within the motion's text.
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Join FLexlaw to unlock all legal intelligence“must seek to schedule a hearing date at the same time that the motion to vacate is filed with the court”
States the rule requirement at issue in the case
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Join FLexlaw to unlock all legal intelligencePatrick Dunac filed a motion to vacate an order in his family law case against Guylaine Dunac. He included language requesting a hearing date in the b…
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GROSS, J.
The narrow issue in this case is whether the former husband complied with the requirement of Florida Family Law Rule of Procedure 12.490(e)(5), which provides that a party seeking review of a motion to vacate an order “must seek to schedule a hearing date at the same time that the motion to vacate is filed with the court."
The former husband maintains that he complied with the rule's requirement by language in the body of his motion and the wherefore clause.
We conclude that the rule requires some action directed at securing a hearing date, beyond language requesting a hearing in the motion to vacate.
Rule 12.490(e)(5) requires that the party filing the motion to vacate “seek to schedule a hearing date” at the same time that the motion to vacate is filed. See Fla. Fam. L. R. P. 12.490(e)(5) (emphasis added). The rule looks for some action to be taken to obtain a hearing date. Without further steps to alert the trial court to set the hearing required by rule 12.490(e)(4), a motion to vacate could become lost in the electronic ether. Merriam-Webster Online Dictionary's definition of the verb “seek” includes “to ask for: request” and “to try to acquire or gain[.]" Merriam-Webster Online Dictionary, Seek, https://www.merriamwebster.com/dictionary/seek (last visited Feb. 27, 2026). Here, the husband did “ask for” or “request” a hearing in his motion to vacate, but he did not take further steps like contacting the court or opposing counsel. Without such steps, the former husband did not try to “acquire” or “schedule” a hearing date within the meaning of the rule.
We agree with the former wife that if a party could satisfy rule 12.490(e)(5)'s procedural obligation to “seek to schedule a hearing date" by a sentence asking for a hearing in the motion to vacate, then the “seeking” to schedule requirement of rule 12.490(e)(5) would be reduced to a hollow formality.
Affirmed.
CIKLIN and LOTT, JJ., concur.