       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 22, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1286
                          Lower Tribunal No. 16-8613
                             ________________


                            Juan Pablo Salgado,
                                    Appellant,

                                        vs.

                          Karla Suyapa-Jimenez,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Sarah Zabel,
Judge.

     Law Office of Luis E. Reynoso, P.A., and Luis E. Reynoso, for appellant.

      Corona Law Firm, P.A., and Ricardo R. Corona and Nina Tarafa, for
appellee.


Before ROTHENBERG, C.J., and EMAS and SCALES, JJ.

     SCALES, J.
        Juan Pablo Salgado, the petitioner below, appeals a May 5, 2017 trial court

order (“May 5, 2017 Order”) denying Salgado’s post-trial motion seeking

rehearing of a March 15, 2017 Order on Father’s Petition to Establish Paternity and

for Related Relief (“March 15, 2017 Order”). While we affirm all issues on appeal

without further comment, we write only to address briefly the appellee’s erroneous

contention that we lack jurisdiction to review the March 15, 2017 Order.

                    Relevant Facts and Procedural Background

        In April 2016, Salgado filed a Petition to Determine Paternity, Custody,

Visitation, Child Support and for Related Relief in the family division of the circuit

court. The matter proceeded to final hearing on February 3, 2017, after which the

trial court rendered the March 15, 2017 Order. Therein, the trial court effectively

resolved all of the issues raised in Salgado’s petition with respect to paternity of

the parties’ minor children, the minor children’s relocation to Texas with the

appellee, the establishment of a parenting plan, and the establishment of a

timesharing schedule.

        Salgado then timely filed his motion for rehearing,1 alleging that, in

rendering the March 15, 2017 Order, the trial court erred by failing to consider

1   Florida Family Law Rule 12.530(a) provides:

        (a) Jury and Non-Jury Actions. A new trial or rehearing may be
        granted to all or any of the parties and on all or a part of the issues.
        On a motion for rehearing of matters heard without a jury, including
        summary judgments, the court may open the judgment if one has been
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certain required factors regarding the best interest of the child and by failing to

follow the recommendations of the guardian ad litem. Salgado’s rehearing motion

also alleged that new evidence had come to light since the final hearing that

warranted further hearing of the matter. In her response – wherein the appellee

repeatedly acknowledged that the March 15, 2017 Order was a final judgment –

the appellee argued that Salgado’s rehearing motion should be denied for failure to

set forth any appropriate ground for seeking rehearing of the March 15, 2017 Order

(i.e., an error, omission or oversight).

         On May 5, 2017, the trial court, without a hearing,2 entered the May 5, 2017

Order denying Salgado’s rehearing motion and, on June 3, 2017, Salgado filed a

notice of appeal with this Court, designating the May 5, 2017 Order as the order

being appealed. Then, on June 12, 2017, for reasons that are not clear from the

record, the trial court rendered a Final Judgment on Father’s Petition to Establish

Paternity and for Related Relief (“June 12, 2017 Order”). This June 12, 2017



         entered, take additional testimony, and enter a new judgment.
2   Rule 12.530(f) provides:

         (f) Hearing on Motion. When any motion for rehearing or new trial
         is filed, the court must initially make a determination if a hearing on
         the motion is required. If a hearing is required, the court must provide
         notice of the hearing on the motion for rehearing or new trial. If the
         court determines that a hearing is not required, then the court must
         enter an order granting or denying the motion in accordance with this
         rule.
                                             3
Order is identical to the March 15, 2017 Order, save for the change to the title

(from “Order” to “Final Judgment”).3 At no time did Salgado seek to amend his

June 3, 2017 notice of appeal to include the June 12, 2017 Order or to designate

the March 15, 2017 order as the order being appealed.

                                 Jurisdictional Analysis

      The appellee contends that this Court lacks jurisdiction to review either the

March 15, 2017 Order or the June 12, 2017 Order, and that Salgado’s appeal

should be dismissed. Specifically, the appellee argues that the March 15, 2017

Order was a non-final, non-appealable order, and therefore, that Salgado’s

rehearing motion directed to same was unauthorized. The appellee also argues that

Salgado never sought appellate review of the final judgment rendered in this case,

i.e., the June 12, 2017 Order. We disagree.

      In sum, despite its title, the March 15, 2017 Order ended the judicial labor in

the case, and was a final, appealable order because it resolved all pending issues in

Salgado’s petition, thereby satisfying the test of finality.4 Salgado’s timely filed

3The trial court even entered the June 12, 2017 Order nunc pro tunc to the same
date as the March 15, 2017 Order.
4  “Generally, the test employed by the appellate court to determine finality of an
order, judgment or decree is whether the order in question constitutes an end to the
judicial labor in the cause, and nothing further remains to be done by the court to
effectuate a termination of the cause as between the parties directly affected.”
S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974) (footnote omitted).
The title of the order, judgment or decree is not controlling. See Bank of N.Y.
Mellon for Certificateholders of CWABS, Inc. v. Swain, 217 So. 3d 226, 227 (Fla.
                                          4
motion for rehearing directed toward the March 15, 2017 Order was authorized

under rule 12.530(a), and tolled the rendition of the March 15, 2017 Order, thereby

extending the thirty-day appellate period of this order until the trial court rendered

an order disposing of Salgado’s rehearing motion. See Fla. R. App. P. 9.020(i)(1);5

Dann v. Dann, 24 So. 3d 791, 791 (Fla. 5th DCA 2009) (recognizing that a timely

filed rule 12.530 motion for rehearing of a final order will suspend rendition of the

final order pursuant to rule 9.020). Because the May 5, 2017 Order (disposing of

Salgado’s rehearing motion) is not separately reviewable from the March 15, 2017

Order to which it was directed, see Florida Rule of Appellate Procedure


5th DCA 2017) (providing that when applying the test of finality, the focus is on
what the court order does, not on how the order is labeled); GMI, LLC v.
Asociacion del Futbol Argentino, 174 So. 3d 500, 501 (Fla. 3d DCA 2015) (“An
appropriate order dismissing a case could be captioned ‘Final Order Dismissing the
Case [or Complaint],’ although the caption is not controlling.”); Boyd v. Goff, 828
So. 2d 468, 469 (Fla. 5th DCA 2002) (“This case is a good example of why it is
important to understand what a court order does and not focus only on how the
order is labeled.”).
5   Rule 9.020(i)(1) provides:

        (i) Rendition (of an Order). An order is rendered when a signed,
        written order is filed with the clerk of the lower tribunal. However,
        unless another applicable rule of procedure specifically provides to
        the contrary, if a final order has been entered and there has been filed
        in the lower tribunal an authorized and timely motion . . . for
        rehearing . . . , the following exceptions apply:

        (1) If such a motion or motions have been filed, the final order shall
            not be deemed rendered as to any existing party until the filing of a
            signed, written order disposing of the last of such motions.

                                           5
9.130(a)(4), irrespective of Salgado’s erroneous characterization of the order

appealed, we properly treated Salgado’s notice of appeal – purporting to appeal the

May 5, 2017 Order – as appealing the March 15, 2017 Order, i.e., the final order to

which Salgado’s rehearing motion was directed.6           This Court therefore has

jurisdiction to review this matter.

      Finally, as for the June 12, 2017 Order – which the trial court labeled as a

“Final Judgment” despite having previously entered an identical “judgment” – it

appears this order is a nullity. Once a party files a notice of appeal from a final

order in a family law matter, the trial court is divested of jurisdiction to vacate or

modify the very order under consideration by the appellate court. See Campbell v.

Campbell, 100 So. 3d 763, 764-65 (Fla. 4th DCA 2012) (concluding that the trial


6 Tunstall v. Folsom, 616 So. 2d 1123, 1124 (Fla. 1st DCA 1993) (“We also find
that appellant’s mistake in identifying the order on rehearing, rather than the [final]
order of September 2, as the order to be reviewed, is not a jurisdictional defect. If
the notice of appeal gives sufficient information from which it can be determined,
with a reasonable degree of certainty, which order is being appealed, technical
defects in the notice that neither affect jurisdiction nor mislead or prejudice the
appellee do not require dismissal.”); see also Ratner v. Miami Beach First Nat’l
Bank, 362 So. 2d 273, 274 (Fla. 1978) (“[D]efects in the notice of appeal are not to
be considered jurisdictional defects, or grounds for dismissal, unless the
complaining party was substantially prejudiced.”); Eisman v. Ross, 664 So. 2d
1128, 1129 (Fla. 3d DCA 1995) (“When Rule 9.110(d) (providing for notice of
appeal) was crafted, it was ‘intended that defects in the notice would not be
jurisdictional or grounds for disposition unless the complaining party was
substantially prejudiced.’” (quoting Fla. R. App. P. 9.110(d) 1977 Committee
Note)); cf. Fla. R. App. P. 9.040(h) (providing that the “[f]ailure of a . . . party
timely to file . . . the conformed copy of the order or orders designated in the notice
of appeal shall not be jurisdictional”).
                                            6
court lacked jurisdiction to vacate a final order setting forth the parties’ parenting

plan while an appeal of the final order was pending before the appellate court);

Adams v. Adams, 676 So. 2d 526, 526-27 (Fla. 4th DCA 1996) (concluding the

trial court was without jurisdiction to modify child support obligations awarded in

a final judgment after the notice of appeal of the judgment was filed).

      Affirmed.




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