Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party misses a trial in a Florida family law case, what relief can be granted if the failure to attend trial was the result of excusable neglect? This was an issue in the case Stephens v. Stephens, 1D22-733 (Fla. 1st DCA August 2, 2023).
In this divorce case, both parties filed petitions requesting shared parental responsibility, time-sharing and child support. The mother filed a notice indicating the case was ready to be set for trial. The trial court then entered an order setting trial less than 30 days from the date the notice was filed. Trial proceeded in the father’s absence, and a final judgment was entered. Fifteen days after the final judgment was entered, the father filed a motion to set aside the final judgment, He alleged that his lawyer notified the court and the mother’s lawyer about his unavailability for the trial date set, but he did not receive a response. The father’s lawyer was also out of the office with pneumonia shortly after the trial date was determined. When he returned to the office, he alleged that he inadvertently overlooked the trial date. The trial court summarily denied the motion to vacate without a hearing and the father appealed.
The appellate court first noted “Despite its designation as a motion for rehearing, Father’s motion is a request for relief from judgment due to excusable neglect under rule 12.540(b)(1). See Baker v. Baker, 538 So. 2d 74, 75 (Fla. 1st DCA 1989). A rule 12.540(b)(1) motion is not a tolling motion. Accordingly, the appeal here cannot be of the dissolution judgment itself because it is untimely. The appeal here must be of the order denying the motion for relief from judgment, a separate appealable final order which is appealable as a specified final order under Florida Rule of Appellate Procedure 9.130(a)(5). Accordingly, our review is limited to whether the trial court properly denied the motion for relief from judgment.”
The opinion went on to hold “In the motion, Father contends he was denied his day in court through no fault of his own, and his absence at trial was the result of excusable neglect. Courts have consistently found excusable neglect where an attorney fails to appear at a hearing due to secretarial error or inadvertence.” The court concluded “The motion and attachments here make allegations of excusable neglect. But allegations and attachments alone are not the same as evidence, and we cannot determine excusable neglect based on those allegations. That said, the allegations were sufficient to warrant an evidentiary hearing, and the trial court abused its discretion by denying one. Accordingly, the order denying the motion for relief is vacated and the case is remanded for an evidentiary hearing on the question of excusable neglect.”
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