Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When amended final judgments are entered, appeal deadlines may become confusing. In many cases, a motion for reconsideration or rehearing must be filed prior to an appeal being taken, further adding to confusion of deadlines. This was an issue in the case Miller v. Ko, 3D23-2229 (Fla. 3d DCA November 26, 2025).
Initially, the court entered a final judgment of divorce, but five days later it vacated that judgment and entered a different judgment. The former wife filed a motion for rehearing of the new judgment, and then later an appeal while her motion for rehearing was still pending. While the appeal was pending, the trial court entered an amended final judgment which in essence granted the former wife’s motion for rehearing. The former husband then filed an appeal of the amended final judgment. He further filed a motion to enforce the original judgment and argued the amended judgment was was void because the trial court had no jurisdiction to amend the order while it was being appealed by the former wife.
While the appeal of the amended final judgment was pending, the judge was disqualified from the case. In order to have the successor judge determine the former husband’s motion to enforce the original judgment, he asked the appellate court to relinquish jurisdiction which was denied by the appellate court. The former husband subsequently voluntarily dismissed his pending appeal. Thereafter, the former husband pursued his motion to enforce the original judgment and to have the amended judgment declared void by the successor judge. This motion was denied, and the judge ruled that because the former wife’s motion for rehearing held her appeal in abeyance, the trial court was authorized to enter the amended final judgment. The former husband appealed.
The appellate court noted “The version of rule 9.020 applicable to the instant case provides that if a notice of appeal is filed before the rendition of an order disposing of one or more timely and authorized motions for rehearing, such motions toll rendition, and ‘the appeal shall be held in abeyance until the filing with the clerk of a signed, written order disposing of the last such motion.’ Fla. R. App. P. 9.020(h)(2)(C) (emphasis added). [. . .] This rule change authorizes trial courts to dispose of timely and authorized motions for rehearing of final orders which remain pending after a notice of appeal has been filed, and requires the appellate court to hold the appeal in abeyance.”
The appellate court also acknowledged the former husband was correct in arguing that the former wife’s notice of appeal failed to comply with the rules of procedure in that it did not indicate she had a motion for rehearing pending, nor did she file with the court a conformed copy of the order disposing of her then-pending motion for rehearing. However, the court held the former husband did not cite any law that indicated these shortcomings were a waiver of the former wife’s motion for rehearing or a waiver of the automatic abeyance of the appeal while the motion for rehearing was pending. The court held that after “Former Wife argues that accordingly, he cannot appeal the October 17th final judgment again. She is correct.”
The court concluded “Because Former Wife filed a timely and authorized motion for rehearing, it tolled rendition of the July 12th Final Judgment, and required Former Wife’s appeal of that final judgment be held in abeyance until the trial court disposed of the pending motion for rehearing. The trial court therefore had continuing jurisdiction to render its October 17th Amended Final Judgment, disposing of the pending motion for rehearing, and therefore was not void. And while we do not condone Former Wife’s failure to comply with rule 9.110(d), which required her to include in the notice of appeal an indication of the pendency of her motion for rehearing and the date that motion was filed, we reject Former Husband’s argument that such a failure constituted an abandonment of the motion for rehearing or waived the mandatory provision of rule 9.020(h)(2)(C), requiring that the appeal be held in abeyance until the motion for rehearing is either withdrawn or resolved by rendition of an order disposing of the motion.”
Nothing in this article is intended to provide legal advice. Schedule your consultation with a Miami family law attorney to determine the next best steps in your case.