Randy Miller, Appellant, v. Jiyon Ko, Appellee. (2025)

INTRODUCTION

Randy Miller (“Former Husband”) appeals a November 13, 2023 order denying his motion to declare void an October 17, 2021 Amended Final Judgment of Dissolution of Marriage, and seeking instead to enforce a prior Final Judgment of Dissolution of Marriage, rendered July 12, 2021. The appellee is Miller's former wife, Jiyon Ko (“Former Wife”). For the reasons that follow, we affirm the trial court's order denying Miller's motion.

FACTUAL AND PROCEDURAL BACKGROUND

The following procedural history, while somewhat convoluted, is necessary to our decision. Former Wife filed a petition for dissolution of marriage, and a trial was held in June 2021. The trial court rendered a final judgment on July 7, 2021, but five days later vacated that final judgment and rendered in its place a Final Judgment on July 12, 2021.

Former Wife timely moved for rehearing of the July 12 Final Judgment. She also filed a notice of appeal of that Final Judgment on July 29, 2021.² While Former Wife's appeal of the Final Judgment was pending, the trial court disposed of Former Wife's pending motion for rehearing, rendering an Amended Final Judgment on October 17, 2021. Although it did not contain an explicit “grant” of Former Wife's motion for rehearing, the October 17th Amended Final Judgment addressed the issues raised by Former Wife, was materially different in substance from the July 12th Final Judgment and did, in fact, grant the relief sought by Former Wife in her rehearing motion. See, e.g., Thomas v. Cromer, 276 So. 3d 69, 71 n. 3 (Fla. 3d DCA 2019) (“[I]f the relief sought by the pending motion is consistent with the Court's final judgment, the motion may be deemed to have been impliedly granted.”) (quoting City of Plant City v. Mann, 400 So. 2d 952, 954 (Fla. 1981)). As a result, on December 10, 2021, Former Wife voluntarily dismissed her appeal of the July 12th Final Judgment.

Meanwhile, Former Husband timely appealed the October 17th Amended Final Judgment.³ He also filed, in the trial court, a motion to enforce the July 12th Final Judgment and to declare void the October 17th Amended Final Judgment, asserting the trial court was without jurisdiction ⁴ to enter the October 17th Amended Final Judgment because Former Wife's appeal of the July 12th Final Judgment was pending, and thus, the trial court was without authority to substantially or materially alter that Final Judgment.

While Former Husband's appeal of the October 17th Amended Final Judgment was pending, Former Husband successfully moved for disqualification of the trial judge, and he thereafter filed a motion with this court seeking a relinquishment of jurisdiction for the successor judge to reconsider the trial court's October 17th Amended Final Judgment. This court denied Former Husband's motion to relinquish, noting that his appeal of the October 17th Amended Final Judgment was already fully briefed and perfected. Two weeks later, on May 12, 2023, Former Husband voluntarily dismissed his appeal of the October 17th Amended Final Judgment in 3D21-2253.

Back in the trial court with the successor judge, Former Husband pursued his motion to declare void the October 17th Amended Final Judgment and to enforce the earlier-entered July 12th Final Judgment. The successor judge held a hearing and on November 13, 2023, entered an order denying Former Husband's motion, holding Former Wife's appeal of the July 12th Final Judgment had been held in abeyance due to her filing of an authorized and timely motion for rehearing and thus, the trial court was authorized to dispose of Former Wife's motion for rehearing ⁵ and issue the October 17th Amended Final Judgment. This appeal followed.

ANALYSIS AND DISCUSSION 6

Florida Rule of Appellate Procedure 9.020(h)(1)(B) generally provides that the filing of an authorized and timely motion for rehearing tolls rendition of a final order, and the final order is not deemed rendered until the filing of a signed, written order disposing of such a motion. Prior to 2015, rule 9.020(i)(3) further provided: “If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned․” See Mora v. McDonough, 934 So. 2d 587 (Fla. 1st DCA 2006) (trial court lacked jurisdiction to rule upon motion for rehearing where notice of appeal was filed before trial court ruled); Rice v. Brown, 645 So. 2d 1020 (Fla. 2d DCA 1994) (notice of appeal divested trial court of jurisdiction to enter remittitur order); see also Dep't of Revenue v. Vanamburg, 174 So. 3d 640, 642 n.1 (Fla. 1st DCA 2015) (noting the rule change but applying the pre-2015 version); Christakis v. Tivoli Terrace, LLC, 219 So. 3d 85 (Fla. 4th DCA 2017).

However, in 2014, the Florida Supreme Court amended (and renumbered subsections of) rule 9.020 (with an effective date of January 1, 2015). See In Re Amendments to Florida Rules of Appellate Procedure, 183 So. 3d 245 (Fla. 2014); see also In re Amendments to Florida Rules of Appellate Procedure—2017 Regular-Cycle Report, 256 So. 3d 1218 (Fla. 2018). 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.”⁷ Fla. R. App. P. 9.020(h)(2)(C) (emphasis added). See In Re Amendments to Florida Rules of Appellate Procedure, 183 So. 3d at 246-47 (noting the amendment “eliminate[s] the language providing that postjudgment motions are abandoned upon the filing of a notice of appeal ․ [and] will allow an appeal to be held in abeyance until disposition of a postjudgment motion.”).

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. See Hardin v. State, 189 So. 3d 233 (Fla. 2d DCA 2016); Carroll v. State, 157 So. 3d 385 (Fla. 2d DCA 2015) (holding the notice of appeal should have been held in abeyance until the trial court ruled on the motion to withdraw plea); Chipman v. State, 285 So. 3d 1005 (Fla. 2d DCA 2019) (noting that trial court had jurisdiction to consider pending motion and vacating appellate court order denying motion to hold appeal in abeyance). See also Brannon v. State, 396 So. 3d 420 (Fla. 6th DCA 2024) (noting trial court was not divested of jurisdiction where authorized and timely motion was filed before filing of the notice of appeal, and that motion tolled rendition of the final order).

Former Husband acknowledges this applicable change in the rule, but asserts that because Former Wife failed to comply with Florida Rule of Appellate Procedure 9.110(d), which required Former Wife to include this information (i.e., the pendency in the trial court of her motion for rehearing) in her notice of appeal, and continued her prosecution of the appeal notwithstanding the pending motion for rehearing in the trial court, she waived the rule's provision that the appeal be held in abeyance. Thus, Former Husband posits, the trial court was without jurisdiction to enter the Amended Final Judgment on October 17, 2021, and jurisdiction did not return to the trial court until Former Wife's voluntary dismissal of the appeal (which she filed after the trial court rendered the Amended Final Judgment on October 17, 2021).

As Former Husband properly notes, Former Wife's July 29, 2021 notice of appeal failed to comply with the related Florida Rule of Appellate Procedure 9.110(d). At the time Former Wife filed her notice of appeal in 3D21-1567, that rule provided in pertinent part (emphasis added):

If a motion postponing rendition pursuant to rule 9.020(h) is pending when the notice of appeal is filed, the notice of appeal shall indicate the pendency of such a motion and the date it was filed. Within 10 days of either withdrawal of such a motion or rendition of the order being appealed, the appellant shall file in the court a notice indicating that the motion has been withdrawn or a conformed copy of the signed, written order disposing of the motion postponing rendition.

In re Amendments to Florida Rules of Appellate Procedure—2020 Regular-Cycle Report, 345 So. 3d 30, 31 (Fla. 2020) (adopting this amendment to rule 9.110(d), with an effective date of January 1, 2021).

Former Wife's notice of appeal failed to indicate the pendency of her motion for rehearing, which was filed on July 19, 2021, ten days before she filed her notice of appeal. The appeal was still pending when the trial court vacated the July 12th Final Judgment and entered the October 17th Amended Final Judgment. In addition, Former Wife failed to comply with the rule requiring her to file with this court a conformed copy of the order disposing of her then-pending motion for rehearing.

Nevertheless, Former Husband does not cite any case to support the proposition that the failure of Former Wife to include, in her notice of appeal, a reference to the pending motion for rehearing somehow waives the abeyance or abandons the motion for rehearing. Given the mandatory language used by the Florida Supreme Court in its 2015 amendment (the appeal “shall be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion”) and the absence of any language in its 2020 amendment of 9.110(d) that a failure to comply with the latter rule constitutes a waiver of the abeyance of the appeal or an abandonment of the pending motion for rehearing,⁸ we reject Former Husband's argument and hold that the failure to include in the notice of appeal a reference to the pending motion for rehearing in the trial court did not constitute an abandonment of the pending motion for rehearing, and did not nullify rule 9.020(d)’s requirement that the appeal be held in abeyance until that motion for rehearing is either withdrawn or resolved in the trial court by rendition of an order disposing of the motion.

Following the trial court's rendition of the Amended Final Judgment, Former Wife voluntarily dismissed her appeal in 3D21-1567. This was understandable, given that the order on review in that appeal (the Final Judgment) was vacated and replaced with the Amended Final Judgment, thus mooting Former Wife's appeal of that now-vacated final judgment.

On November 16, 2021, Former Husband (just as understandably) filed his notice appeal (3D21-2253) of the October 17th Amended Final Judgment, which sought review of the merits of that final judgment and contended that the trial court abused its discretion in its determination of equitable distribution, alimony and child support. The appeal proceeded in due course, and all briefing was completed and the case perfected by the filing of a reply brief on April 3, 2023.

Thereafter, on April 26, 2023, Former Husband moved for relinquishment of jurisdiction to allow the successor judge to reconsider the prior rulings of the disqualified judge. See Fla. R. Gen. Prac. & Jud. Admin. 2.330(j) (providing: “Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge); Samoilova v. Loginov, 330 So. 3d 1041, 1042 (Fla. 3d DCA 2021); see also Schlesinger v. Chem. Bank, 707 So. 2d 868, 869 (Fla. 4th DCA 1998) (holding that although “[a] final judgment entered by a judge who was later disqualified is, like any other order, subject to being reconsidered by a successor judge,” appellant not entitled, as a matter of right, to have the final judgment vacated because such orders are voidable, not void) (citing Barber v. MacKenzie, 562 So. 2d 755 (Fla. 3d DCA 1990)). However, this court denied Former Husband's motion for relinquishment, noting that the appeal was already perfected.

Former Husband then voluntarily dismissed his appeal in 3D21-2253. Former Wife argues that accordingly, he cannot appeal the October 17th final judgment again. She is correct. See Costa Del Mar, Inc. v. Haney, 330 So. 3d 1046 (Fla. 1st DCA 2021).⁹

CONCLUSION

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.

Affirmed.

FOOTNOTES

2.   See Ko v. Miller, 3D21-1567, filed July 29, 2021. As discussed infra, and as part of Former Husband's argument, the notice of appeal filed by Former Wife failed to indicate the pendency of the motion for rehearing and the date on which that motion for rehearing had been filed. See Fla. R. App. P. 9.110(d) (“If a motion postponing rendition under rule 9.020(h) is pending when the notice of appeal is filed, the notice of appeal must indicate the pendency of such a motion and the date it was filed.”).

3.   See Miller v. Ko, 3D21-2253, filed November 18, 2021.

4.   The term “jurisdiction” as used in this context is understood to mean the power of the court to act on a particular case given its procedural posture, often referred to as “procedural jurisdiction,” “case jurisdiction,” or “continuing jurisdiction,” rather than subject-matter jurisdiction. See e.g., JJJTB, Inc. v. Schmidt, 415 So. 3d 129, 134 (Fla. 2025) (Couriel, J. concurring) (discussing the distinction between the concepts); Padron v. Padron, 356 So. 306, 307-08 (Fla. 3d DCA 2023) (same).

5.   Pursuant to Fla. Fam. R. P. 12.530(f), the trial court may rule on the motion without a hearing, if it determines that a hearing is not required.

7.   The relevant language of rule 9.020(h)(2)(C) was subsequently amended, and presently provides that “if a notice of appeal is filed before the rendition of an order disposing of all such motions, the appeal must be held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion.”

8.   The Florida Supreme Court, like the Legislature, is aware of the language of its existing rule when it effectuates an amendment of that rule, and if the Court intended a failure to comply with the amendatory language of the rule to constitute a waiver or abandonment of the pending motion for rehearing, “it would have said so.” See Gering v. State, 252 So. 3d 334, 339 (Fla. 3d DCA 2018).

9.   Former Husband insists that he is not appealing the October 17th Amended Final Judgment, but rather, appealing the November 13, 2023 order of the successor judge denying his motion to declare the October 17th final judgment void. While this may be true, the arguments advanced in the motion before the successor judge were that the October 17th Amended Final Judgment is void because (1) an appeal was pending; (2) it was entered without giving Former Husband notice or an opportunity to be heard; (3) there was no motion to alter or amend the July 12 final judgment; (4) the July 12 Final Judgment was never vacated by the trial court; (5) the October 17th Amended Final Judgment exceeded the trial court's jurisdiction. We have addressed the most salient of these arguments in this opinion. We find any remaining arguments to be without merit and warrant no additional discussion.

EMAS, J.