CRAIG W. THOMPSON, APPELLANT,
v.
LEZRENE M. CUNNINGHAM, APPELLEE
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Appellant Thompson sought relief from a final judgment modifying child custody and visitation under Florida Rule of Civil Procedure 1.540, arguing the judgment lacked evidentiary support and failed to address relevant custody factors. The appellate court affirmed the trial court's denial of the motion, holding that Rule 1.540 is not a substitute for appellate review of judicial error.
The court affirmed the trial court's denial of the motion, holding that Appellant did not establish any of the five grounds for relief under Rule 1.540(b). The court rejected Appellant's challenge to the substantive and evidentiary basis of the judgment, finding that Rule 1.540 was not intended to serve as a substitute for appellate review of judicial error.
[1] Florida Rule of Civil Procedure 1.540 provides grounds for relief from a final judgment, including mistake, excusable neglect, newly discovered evidence, fraud, a void ju…
[2] A motion for relief from judgment under Florida Rule of Civil Procedure 1.540 is not a substitute for a motion for a new trial or appellate review of judicial error.
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“rule 1.540 'was not 'intended to serve as a substitute for the new trial mechanism prescribed by rule 1.530 nor as a substitute for appellate review of judicial error.'”
Establishes that Rule 1.540 cannot be used to challenge evidentiary support or judicial error, which is the province of appellate review
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Join FLexlaw to unlock all legal intelligenceThe trial court rendered a Final Judgment of Modification on July 16, 2010. Appellant did not seek rehearing or appeal from that judgment. Instead, mo…
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Appellant seeks review of an order denying his motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. The subject of the motion is a Final Judgment of Modification rendered July 16, 2010, from which Appellant sought neither rehearing nor appeal. Appellant’s motion alleged, inter alia, that the judgment does not comport with the court’s findings at trial, it contains findings not supported by the evidence presented, and it ignores certain factors relevant to the issue of child custody and visitation. The trial court denied Appellant’s motion, and we affirm.
Under rule 1.540, a party may seek relief from a final judgment for:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Fla. R. Civ. P. 1.540(b). Appellant’s motion does not establish any of these grounds, and instead challenges the substance and evidentiary basis of the final judgment. Although Appellant alleged misconduct by the Appellee in submitting a proposed final judgment to the court based on documents not placed into evidence during trial, the gravamen of Appellant’s complaint is that the trial court wrongly adopted a proposed judgment that lacks evidentiary support. The Florida Supreme Court has made it clear that rule 1.540 “was not ‘intended to serve as a substitute for the new trial mechanism prescribed by rule 1.530 nor as a substitute for appellate review of judicial error.’ ” Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.1990) (internal citation omitted). See Bortz v. Bortz, 675 So.2d 622, 625 (Fla. 1st DCA 1996). Because Appellant presented no basis for relief from judgment under rule 1.540, we affirm the order denying his motion.
AFFIRMED.
BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Arnaldo Curbelo, M.D. v. Ullman, 571 So. 2d 443 (Fla. 1990)
- Bortz v. Bortz, 675 So. 2d 622 (Fla. 1st DCA 1996)