Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can a party amend pleadings in a Florida family law case? Sometimes, circumstances change after a petition has been filed, or a party changes his or her mind as to what relief he or she wants to ask for from the court. Florida law favors resolution of cases on the merits so it leans in favor of allowing amendment of pleadings. This was an issue in the case Gerber v. Dubrowksi, 23-71 (Fla. 2d DCA December 27, 2023).
The former wife in this divorce case filed a motion for leave to amend her pleadings regarding relocation over a month prior to trial. A hearing was held on the motion over a month prior to trial, and the court denied the motion on the grounds that “(1) an order setting trial and pretrial conferences had been entered over a month before Former Wife moved for leave to amend, and (2) ‘the liberal right of a party to amend a pleading lessens as a case approaches trial.’” The former wife appealed this denial and the final judgment that resulted from the trial held in the case.
The appellate court first noted “[D]enying leave to amend is an abuse of discretion unless: ‘(1) the privilege to amend has been abused, (2) the amendment would be futile, or (3) the amendment would prejudice the opposing party.’ Lee v. Lee, 352 So. 3d 420, 432 (Fla. 2d DCA 2022).” The court continued “It's true that ‘[l]iberality in granting leave to amend diminishes . . . as the case progresses to trial.’ Ohio Cas. Ins. v. MRK Constr., Inc., 602 So. 2d 976, 978 (Fla. 2d DCA 1992). And while ‘[b]road discretion is given to the trial court to grant or deny a motion to amend[,] . . . there is no bright-line rule as to when a motion to amend is 'untimely.' ‘ Morgan v. Bank of N.Y. Mellon, 200 So. 3d 792, 795 (Fla. 1st DCA 2016). In fact, ‘the bare timing of a motion to amend’ is, ‘at most, ancillary to the primary considerations of prejudice to the opposing party, abuse of the privilege, and futility of the proposed amended pleading.’ Reyes v. BAC Home Loans Servicing L.P., 226 So. 3d 354, 356 (Fla. 2d DCA 2017).”
The appellate court rejected the argument that the former wife filed her motion for leave to amend too late, holding “A month is not, as the trial court described it, ‘the eve of trial,’ and it is not ‘too late.’” As to the former husband’s argument that he would be prejudiced by amendment because of discovery requirements, the appellate court held “prejudice does not result where—as here—the proposed amendment ‘present[s] no significant changes or new allegations.’ Id. Former Husband was no stranger to at least some of the facts and issues of the proposed amendment. After all, the parties had already litigated Former Wife's request for temporary relocation to Parkland.”
Former husband also argued the amendment would be futile where the court previously denied her motion for temporary relocation. The appellate court disagreed, holding “The trial court's denial of temporary relocation does not bar Former Wife from asserting a request for permanent relocation. This is particularly true since Former Wife's proposed amendment requests relocation to Orlando or alternatively to Parkland, while the trial court denied her temporary relocation to Parkland only.” The court concluded “Finally, Former Husband doesn't argue—and this record doesn't indicate— that Former Wife abused the privilege to amend; indeed, this was only Former Wife's second request to amend her counter-petition.”
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