Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What makes a Florida family law order appealable? The Florida Rules of Appellate Procedure specify what types of orders are appealable. Orders generally fall into two categories for purposes of appeal: final and non-final. A final order means judicial labor is concluded and nothing remains to be done. A non-final order is the opposite. This was an issue in the case Obermark v. Obermark, 5D22-2479 (Fla. 5th DCA September 22, 2023).
The former husband in this case filed a petition to modify child support. Without holding an evidentiary hearing, the court dismissed the former husband’s petition without prejudice. He appealed, arguing he was deprived of due process. The appellate court dismissed the former husband’s appeal. It held “The appealed order dismissed Former Husband’s petition ‘without prejudice.’ Generally, when an order dismisses a complaint or pleading without prejudice, the order is not a final, appealable order. However, if it is clear from the context of the record that the plaintiff’s right to pursue the case requires the filing of a new case, the order is final.” (internal citations omitted).
The court concluded “In this case, although the title of the appealed order contains the terms ‘Final Order,’ there is nothing on the face of the order that prohibited Former Husband from filing an amended supplemental petition. [internal citation omitted]. Despite the use of ‘Final Order’ in its title, the appealed order otherwise lacks sufficient language of finality to constitute a final order and does not fit within the limited categories of appealable, nonfinal orders in Florida Rule of Appellate Procedure 9.130(a)(3). [internal citations omitted]. Accordingly, this Court does not have jurisdiction to review the trial court’s order dismissing Former Husband’s petition.”
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