Gooding v. Gooding

District Court of Appeal of Florida

Gooding v. Gooding

481 So. 2d 1276, 11 Fla. L. Weekly 228, 1986 Fla. App. LEXIS 5951

District Court of Appeal of Florida·Decided January 20, 1986·No. No. BC-406·Published

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PER CURIAM.

This cause is before us on appeal from an order in which the trial court determined it lacked jurisdiction to amend a final judgment in a dissolution of marriage where the husband made a $23,000 misrepresentation regarding the mortgage debt on a house in New Orleans, Louisiana.

The record shows that the balance due on the New Orleans property was $63,000 and that the husband represented to the trial court the balance due was $40,000. After judgment awarding the wife the New Orleans property, on which she was to assume the mortgage debt, the wife requested relief pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The misrepresentation was discovered after time for a motion for rehearing had passed, yet within the year required by that rule, and is properly raised by the motion. The trial court has jurisdiction to consider and grant relief under Rule 1.540(b). See, Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2d DCA 1976).

Accordingly, the order below is reversed and the cause remanded for proceedings consistent herewith.

BOOTH, C.J., and BEN C. WILLIS (Ret.), Associate Judge, concur. ZEHMER, J., dissents.

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PER CURIAM.

This cause is before us on appeal from an order in which the trial court determined it lacked jurisdiction to amend a final judgment in a dissolution of marriage where the husband made a $23,000 misrepresentation regarding the mortgage debt on a house in New Orleans, Louisiana.

The record shows that the balance due on the New Orleans property was $63,000 and that the husband represented to the trial court the balance due was $40,000. After judgment awarding the wife the New Orleans property, on which she was to assume the mortgage debt, the wife requested relief pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The misrepresentation was discovered after time for a motion for rehearing had passed, yet within the year required by that rule, and is properly raised by the motion. The trial court has jurisdiction to consider and grant relief under Rule 1.540(b). See, Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2d DCA 1976).

Accordingly, the order below is reversed and the cause remanded for proceedings consistent herewith.

BOOTH, C.J., and BEN C. WILLIS (Ret.), Associate Judge, concur. ZEHMER, J., dissents.

Gooding v. Gooding, 481 So. 2d 1276, 11 Fla. L. Weekly 228, 1986 Fla. App. LEXIS 5951 (Fla. Ct. App. 1986).

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