DEPARTMENT OF REVENUE O/B/O MICHELLE COCKERHAM, APPELLANT,
v.
STEPHEN LANE COCKERHAM, APPELLEE
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The Department of Revenue appeals a trial court order vacating a child support arrears judgment. The court reverses, holding that the trial court lacked jurisdiction to consider the motion to vacate because it was filed thirteen days after the judgment, exceeding the ten-day deadline set by Florida Family Law Rule of Procedure 12.491(f).
The court held that "filing" under rule 12.491(f) means the date the motion is date stamped by the clerk, and Cockerham's motion was not timely filed. Because the motion was untimely, the trial court lacked jurisdiction to consider it.
[1] A motion to vacate an order must be filed within the time prescribed by rule, and "filing" refers to the date the motion is received and date-stamped by the clerk of the…
[2] A trial court lacks jurisdiction to consider a motion to vacate an order if the motion is not timely filed.
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Join FLexlaw to unlock all legal intelligence“Any party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry.”
Establishes the ten-day deadline for filing a motion to vacate under Florida Family Law Rule of Procedure 12.491(f)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court entered an order and judgment for arrears on May 11, 2006, following a hearing before a Support Enforcement Hearing Officer. Stephen C…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAKAN, STEPHEN L., Associate Senior Judge.
The Department of Revenue appeals the order of the trial court entered May 8, 2007, vacating an order and judgment for arrears rendered on May 11, 2006. We reverse, finding that the trial court lacked jurisdiction to consider the matter. After a hearing conducted by the Support Enforcement Hearing Officer, and after considering that officer’s findings and recommendations, the trial court entered its order and judgment for arrears. This order was filed (rendered) in the office of the Clerk of the Circuit Court on May 11, 2006. See Fla. R.App. P. 9.020(h). On May 24, 2006, Stephen Cockerham filed with that clerk his motion to vacate the findings of the hearing officer and the order and judgment for arrears.
The procedures set out in the Florida Family Law Rules of Procedure apply to this case. Rule 12.491(f) states in pertinent part:
Upon receipt of a recommended order, the court shall review the recommended order and shall enter an order promptly ... Any party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry.
(Emphasis added.) Mr. Cockerham’s motion was date stamped by the clerk on May 24, 2006, thirteen days after the order was filed. Since the tenth day fell on Sunday, May 21, 2006, the last day for filing the motion would have been Monday, May 22, 2006. We hold that “filing” under rule 12.491(f) means the date the motion is filed with the clerk of the appropriate court and date stamped. Mr. Cockerham’s motion was therefore not timely filed.
Although we were unable to find a case directly construing the term “filing” as contained in rule 12.491(f), cases have used that term in applying the rule. See, e.g., Hinckley v. Dep’t of Revenue, 927 So. 2d 73, 75 (Fla. 2d DCA 2006); Daniel v. Dep’t of Revenue, 768 So. 2d 541, 541 (Fla. 5th DCA 2000). The Florida Supreme Court chose the term “filing” when it promulgated rule 12.491(f), removing, we believe, any ambiguity created by the predecessor to the rule which was incorporated in former Florida Rule of Civil Procedure 1.491(f)(1). Rule 1.491(f)(1) required a party to “move to vacate” an order within ten days from the date the order was entered and had been interpreted to require a party to serve a motion within ten days. Dep’t of Revenue v. Loveday, 659 So. 2d 1239, 1241 (Fla. 2d DCA 1995).
Because the motion to vacate was not timely filed, the trial court was without jurisdiction to consider it. Galvez v. Ramos, 941 So. 2d 475, 478 (Fla. 3d DCA 2006); Catsicas v. Catsicas, 669 So. 2d 1126, 1127 (Fla. 4th DCA 1996).
Reversed and remanded with directions to reinstate the Order and Judgment for Arrears of May 11, 2006.
STRINGER and KELLY, JJ., Concur.
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Citator
Authorities Cited
- Leisuris R. Galvez v. Ramos, 941 So. 2d 475 (Fla. 3d DCA 2006)
- Norberto Pietri v. State, 669 So. 2d 1126 (Fla. 4th DCA 1996)
- Hinckley v. Dep't OF Revenue, 927 So. 2d 73 (Fla. 2d DCA 2006)
- Catsicas v. Catsicas, 669 So. 2d 1126 (Fla. 4th DCA 1996)
- State v. Loveday, 659 So. 2d 1239 (Fla. 2d DCA 1995)
- Daniel v. Dep't OF Revenue, 768 So. 2d 541 (Fla. 5th DCA 2000)