ROOKS v. ROOKS (2007)

District Court of Appeal of Florida,Fourth District.

Benjamin ROOKS, as Personal Representative of the Estate of Harvey Rooks, Appellant, v. Rachel ROOKS, Appellee.

No. 4D06-674.

Decided: January 17, 2007

Laura Bourne Burkhalter of Hark Burkhalter, PL, Boca Raton, for appellant. William A. Fleck of Kramer, Ali, Fleck, Hughes, Gelb & Bornstein, Jupiter, for appellee.

The marriage of Rachel and Harvey Rooks was dissolved in 2002 by a judgment which incorporated a property settlement agreement. After Harvey's death, in 2004, his son, as personal representative of his estate, filed a motion to set aside the agreement alleging that Rachel had used undue influence, made fraudulent misrepresentations, and failed to financially disclose her assets. The trial court granted Rachel's motion to dismiss on the ground that the one year period of limitations for filing the Rule 1.540(b) motion to set aside the judgment had expired. Harvey's estate argues that the motion alleged a fraud on the court, which is not governed by the one year period; however, the Florida Supreme Court has held that allegations of the type made in this case do not amount to fraud on the court. Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla.1996); DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984). We conclude the trial court was correct and affirm.

KLEIN, J.

HAZOURI and MAY, JJ., concur.

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