Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When an appeal is filed in a Florida family law case, the trial court may have limited jurisdiction to proceed with making further rulings in the case. How do we determine what matters the trial court can rule on while an appeal is pending? This was an issue in the case Saenz v. Sanchez, 3D23-1402 (Fla. 3d DCA October 18, 2023).
In this case involving a child custody dispute, the trial court entered an order which severely restricted the mother’s contact with the parties’ children and mandated that one of the parties’ child be enrolled in a military boarding school, among other mandates. This order was appealed which resulted in a reversal. A new judge was assigned on the trial level who subsequently entered a similar order which is currently being appealed. The mother filed a motion for appointment of an attorney ad litem for the child who was ordered to attend the military school. The trial court determined it did not have jurisdiction to rule on this motion because of the pending appeal. The mother filed a petition for writ of certiorari which the appellate court treated as a writ of mandamus.
The appellate court noted ““[M]andamus will lie to compel a court to exercise its lawful jurisdiction where it refuses to do so, [but] it cannot be maintained to correct alleged errors in rendering a judgment where there is an adequate remedy by writ of error.” State v. Petteway, 117 So. 696, 696 (Fla. 1928).” It also noted '“Florida Rule of Appellate Procedure 9.130(f) clearly states, and the case law confirms, ‘[i]n the absence of a stay, during the pendency of a review of a nonfinal order, the lower tribunal may proceed with all matters, including trial or final hearing.’ Id. The only exception is that the lower tribunal ‘may not render a final order disposing of the cause pending such review.’” Id.
The court concluded “Because this court previously denied a motion to stay filed in conjunction with the pending appeal, the trial court is authorized to proceed with all other matters. The issues raised in the pending appeal are purely legal in nature and do not overlap with the subject of the mother’s motion. Consequently, the trial court will not exceed its jurisdiction in ruling on the propriety of appointing an attorney for [the child].”
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