           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3092
                 _____________________________

NASHWA HOLT,

    Appellant,

    v.

ERIC V. HOLT,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.

                        October 31, 2018


ROWE, J.

     Former wife Nashwa Holt appeals an order granting former
husband Eric Holt relief from a 2010 order vacating the trial
court’s final judgment of dissolution. Former husband had filed a
motion in the original dissolution action seeking relief from the
2010 order on grounds that former wife committed fraud on the
court when she forged his signature on a stipulated order vacating
the final judgment of dissolution. Former wife argues that under
Florida Rule of Civil Procedure 1.540(b), former husband was
required to file an independent action to seek relief from the 2010
order. We agree.
                             I. Facts

     After four years of marriage, the parties agreed to divorce in
August 2009. While the dissolution action was pending, former
husband was incapacitated. In January 2009, he suffered a
traumatic brain injury as a result of an IED explosion while he was
deployed in Afghanistan. From January 2009 to February 2010,
former husband received inpatient treatment at various hospitals,
including the Walter Reed National Military Medical Center in
Washington, D.C.

    During his hospitalization, former wife presented former
husband with a marital settlement agreement, which he signed.
They agreed to expedite the dissolution. Former husband was not
represented by counsel, and, due to his incapacity and frequent
change of treatment centers, he relied on former wife to report to
him on the status of the dissolution proceedings.

     But unbeknownst to former husband, a final judgment of
dissolution of marriage was entered in January 2010. And then,
two months later, a stipulated order was presented to the trial
court seeking to vacate the final judgment of dissolution of
marriage. The order purported to include the signatures of former
wife, her attorney, and former husband. The trial court entered
the 2010 order vacating the final judgment of dissolution.

     In February 2010, former husband completed his medical
treatment and reconciled with former wife. They moved to
Maryland, bought a home, and raised two children. Then, in 2013,
the marriage deteriorated again, and former wife filed to dissolve
the marriage in Maryland. During a 2016 hearing in the Maryland
action, former husband learned for the first time that their
marriage had been dissolved in the Florida action, and that shortly
thereafter the 2010 order had been entered vacating the final
judgment of dissolution.

     Based on this information, former husband moved in the
original Florida action for relief from the 2010 order vacating the
final judgment of dissolution pursuant to Florida Rule of Civil
Procedure 1.540(b). He asserted that the 2010 order was the result
of fraud on the court because former wife had forged his signature.

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He alleged that he had no knowledge their marriage had been
dissolved, and he sought to set aside the 2010 order vacating the
final judgment of dissolution.

     At a hearing on the motion, former husband presented the
testimony of a handwriting expert, who testified that the signature
on the 2010 order matched that of former wife and appeared to be
a forgery. Based on the expert’s testimony, the trial court set aside
the 2010 order and reinstated the final judgment of dissolution
nunc pro tunc to January 2010.

     Former wife appeals, asserting the trial court lacked
jurisdiction to grant relief because former husband’s motion was
untimely under rule 1.540(b).

                             II. Analysis

    We review the trial court’s order for an abuse of discretion. See
Shiver v. Wharton, 9 So. 3d 687, 689 (Fla. 4th DCA 2009). Florida
Rule of Civil Procedure 1.540(b) states in part:

          On motion and upon such terms as are just, the court
    may relieve a party . . . from a final . . . order . . . for the
    following reasons: . . . (3) fraud (whether heretofore
    denominated intrinsic or extrinsic), misrepresentation, or
    other misconduct of an adverse party. . . . The motion
    shall be filed within a reasonable time, and for reasons
    (1), (2), and (3) not more than 1 year after the judgment,
    decree, order, or proceeding was entered or taken.

    This rule does not limit the power of a court to entertain
    an independent action to relieve a party from a judgment,
    decree, order, or proceeding or to set aside a judgment or
    decree for fraud upon the court.

Fla. R. Civ. P. 1.540(b) (emphasis added).

     The rule provides several grounds on which a party may seek
relief from a judgment or order. The plain language of the rule
provides that a party seeking relief from a final order on grounds
of fraud, whether intrinsic or extrinsic, must do so within one year

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of the order. However, a party alleging fraud on the court, also
referred to as extrinsic fraud, may seek relief more than one year
after the order only by filing an independent action. The fraud
alleged in this case is extrinsic. DeClaire v. Yohanan, 453 So. 2d
375, 377 (Fla. 1984), superseded by rule on other grounds as
recognized in Parker v. Parker, 950 So. 2d 388 (Fla. 2007). By
forging former husband’s signature on the 2010 order, former wife
prevented former husband “from having an opportunity to present
his case in court.” Id. at 379; see also Parker, 950 So. 2d at 389-92.
Therefore, former husband has raised a claim of extrinsic fraud.
But, because he filed his motion more than one year after the entry
of the 2010 order, former husband was precluded from seeking
relief in the original action pursuant to the rule. Parker, 950 So.
2d at 392 (“[W]here fraud is extrinsic, it is deemed independent of
the action and, therefore, must be attacked independent of the
action.”); Lefler v. Lefler, 776 So. 2d 319, 321 (Fla. 4th DCA 2001)
(“Florida Rule of Civil Procedure 1.540(b), applicable to family
court proceedings pursuant to Florida Family Law Rule 12.540,
permits a party to bring an independent action to set aside a
judgment for fraud upon the court after one year from the final
judgment.”). Rather, former husband could only seek relief from
the 2010 order by filing an independent action.

    Accordingly, we reverse the trial court’s order granting former
husband relief from the 2010 order. Our disposition is without
prejudice to former husband, who may file an independent action
seeking relief from the 2010 order. See Fla. R. Civ. P. 1.540(b).


B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Robert J. Powell of Clark Partington, Pensacola, for Appellant.


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Crystal C. Spencer of Spencer Law PA, Pensacola, for Appellee.




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