          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-401
                  _____________________________

JENNIFER D. DEMMING,

    Appellant, Cross-Appellee,

    v.

FREDERICK D. DEMMING,

    Appellee, Cross-Appellant.
                _____________________________

On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

                            July 9, 2018

KELSEY, J.

     We have a jurisdictional conundrum in this dissolution of
marriage case, because the trial court entered two orders, five
months apart, both of which may have resolved all dissolution
issues between the parties. After rendition of the earlier order, the
former wife timely moved for rehearing, which was denied. Neither
party appealed.

     A couple of months later, the former wife moved for entry of a
final judgment, and the parties then engaged in informal letter-
writing to the trial judge about making various changes to the
earlier order, including addressing the issues the former wife had
raised in her motion for rehearing directed to the earlier order.
Ultimately the trial court entered the later order, different in some
respects from the earlier order. From the later order, the former
wife appealed and the former husband cross-appealed.
     Because the earlier order appeared to be a final, appealable
order, we directed the parties to show cause why the appeal and
cross-appeal from the later order should not be dismissed as
untimely. The former wife asserts two reasons why she believes
the earlier order was not final, while the former husband
acknowledges that the appeal and cross-appeal may be untimely.
Upon consideration of the former wife’s arguments and our own
analysis of the earlier order, we dismiss this appeal and cross-
appeal as untimely.

                    Jurisdictional Principles.

     We are required to dismiss an untimely appellate proceeding.
See Miami-Dade County v. Peart, 843 So. 2d 363 (Fla. 3d DCA
2003). The parties cannot confer jurisdiction where none exists,
and we are not limited to the parties’ arguments in determining
the existence of jurisdiction. Rather, “[w]e have an independent
obligation to assess our jurisdiction in every case . . . .” Shannon v.
Cheney Bros. Inc., 157 So. 3d 397, 399 (Fla. 1st DCA 2015). Having
considered the parties’ responses to our show-cause order and the
governing law, we dismiss this appeal as untimely.

                        The Earlier Order.

    In the earlier order, the trial court approved and adopted as
an order of the court the amended report and recommendations of
a general magistrate. We have examined two grounds the former
wife raises as demonstrating that the earlier order was not
appealable, and one other potential issue that we identified. We
address each potential issue from the earlier order in full below,
and then address the effect of the later order.

      The issues arising from the earlier order are as follows (the
first two being raised by the former wife). (1) The trial court’s order
did not expressly state on its face that the marriage was dissolved,
but rather adopted the general magistrate’s recommendation of
dissolution, requiring review of both documents to discern that the
marriage was dissolved. (2) The order rejected a valuation of the
former husband’s personal property without placing a new value
on the property and without adjusting equitable distribution to
reflect the rejection of the personal property valuation. (3) The
trial court adopted the magistrate’s recommended formula for
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determining the former wife’s share of the former husband’s
military retirement, but because the former husband had not
retired, “reserved jurisdiction” to calculate the amount due upon
the former husband’s future retirement.

      (1) No Dissolution on Face of Order. We reject the former
wife’s argument that the absence of an express statement of
dissolution on the face of the trial court’s order kept that order
from being final and appealable. The magistrate’s report
recommended that the trial court order that “[t]he marriage is
irretrievably broken and should be dissolved.” The trial court’s
order “ratified, approved, and incorporated” the magistrate’s
report, and went on to “adopt[] each and every recommendation
contained therein as this Court’s Order.” By approving and
adopting the recommendation of dissolution among other aspects
of the report and recommendation, the trial court’s order was
legally sufficient to dissolve the marriage. Norris v. Norris, 28 So.
3d 953, 955 (Fla. 2d DCA 2010) (finding a trial court order
approving magistrate’s recommendation that the marriage be
dissolved was final and appealable where it confirmed, ratified,
and adopted the magistrate’s report as an order of the court). We
recognize that, as the former wife has experienced, it may be
difficult to help third parties understand they must read the trial
court’s order in conjunction with the magistrate’s recommendation
in order to divine that the marriage was dissolved. This logistical
problem does not, however, render the earlier order non-final.

     (2) Rejection of Personal Property Value. The trial
court’s earlier order rejected the magistrate’s $12,000 valuation of
the former husband’s personal property, as not supported by
competent substantial evidence. The trial court did not, however,
take evidence to establish an appropriate valuation or adjust the
overall equitable distribution. While this may well have been an
issue for appeal, it does not on its face render the earlier order non-
final.

    (3) Reservation of Jurisdiction to Calculate Former
Wife’s Share of Former Husband’s Military Retirement. The
former husband is active-duty military and is not expected to retire
for many years. The magistrate’s report recommended that the
former wife’s share of the former husband’s military retirement be

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calculated using a typical formula: “one half (1/2) of the fraction
created by dividing the number of months the parties were married
by the total number of months of military service.” The
magistrate’s report “reserved jurisdiction to determine the
amount, if necessary.” The magistrate expressly considered and
rejected the former wife’s request that this share of retirement be
calculated and reduced to present value based on date of
dissolution as the beginning point and a 20-year projected date of
retirement as the ending point. The magistrate discussed
Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986), in which
the supreme court held, “While reduction to present value might
best place the benefits in proper perspective for such purposes, we
decline to impose any rigid rules [about whether or not to reduce
future retirement to present value] and leave the doing of equity
to the trial court.” 491 So. 2d at 270.

     The trial court’s earlier order rejected the date of dissolution
as the beginning point for calculating the former wife’s share of the
former husband’s retirement benefits, instead adopting date of
filing of the petition for dissolution. The trial court also declined to
calculate a present value, instead stating, as had the magistrate,
that it “reserves jurisdiction to determine the amount to be
divided.” While the phrase “reserves jurisdiction” on its face
naturally causes the reader to wonder if an order is yet final,
reading the phrase in its larger context reveals that both the
magistrate’s report and the trial court’s earlier order were merely
recognizing that the military retirement calculation would occur
at a later date. The right, and the formula by which it would be
calculated, were finally resolved. This is a fairly typical approach
to the issue as allowed by Diffenderfer. See Johnson v. Johnson,
162 So. 3d 137, 138 (Fla. 1st DCA 2014) (reflecting same formula
used in a consent final judgment, leaving for the later retirement
date the exercise of completing the fraction with amount of
military service and performing the math).

     The former husband’s counsel explained to the magistrate
that it would be highly speculative to reduce retirement to present
value because the former husband had not yet retired, would not
retire before the end of his current enlistment, and might receive
disability in lieu of retirement due to injuries and medical
conditions already suffered during military service—and the

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former wife would not be entitled to a share of disability payments.
To leave the final calculation for a future date when the variables
are established does not prevent orders utilizing this approach
from becoming final and appealable. See generally Work v. Provine,
632 So. 2d 1119 (Fla. 1st DCA 1994) (noting courts retain
jurisdiction to enforce their orders).

                        The Later Order.

     The later order is not a classic “republished” order, because it
is different from the earlier order. See Churchville v. Ocean Grove
R.V. Sales, Inc., 876 So. 2d 649, 651 (Fla. 1st DCA 2004) (holding
republication of an earlier order does not open a new window for
appeal); see also Hollifield v. Renew & Go, Inc., 18 So. 3d 616 (Fla.
1st DCA 2009) (holding trial court lacks authority under Fla. R.
Civ. P. 1.540(b) to republish an order so a party that negligently
missed the appeal deadline can take a timely appeal).

     The later order differed from the earlier order because it
expressly dissolved the parties’ marriage on the face of the order,
and adopted an equitable distribution plan that was adjusted to
reflect the removal of the earlier valuation of former husband’s
personal property. It also set forth on its face several rulings
recommended by the magistrate, although all of those rulings had
been adopted as an order of the trial court in the earlier order. The
later order also corrected technical errors in the former wife’s
address and the mathematically correct amount of the former
husband’s child support obligation.

     We do not conclude, however, that entry of a modified second
order, long after expiration of the deadline to appeal an earlier
order addressing the same issues, created a new right to appeal.
The parties failed to appeal the earlier order, despite thinking it
erred in several respects. The question is whether the earlier order
was final and appealable, and it was. The failure to have appealed
it bound the parties to it, absent a showing of a material change in
circumstances.

     As noted earlier, the former wife timely moved for rehearing
of the earlier order, arguing that “there are numerous reversible
errors [she raised ten] in the magistrate’s report and the court’s
order.” Her motion for rehearing expressly represented that it had
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to be filed within 15 days after rendition of the court’s order, to
preserve her right to appeal that order. While the former wife’s
understanding of the finality of the earlier order is not controlling,
it was correct as explained above. Yet after her motion for
rehearing was denied, she failed to appeal. Rather, she
immediately moved to disqualify both the magistrate and the trial
judge for not accepting her rehearing arguments. The motion to
disqualify was denied a month later.

    Three more weeks passed before the former wife filed a
“motion for final judgment,” arguing only that she needed a single
judgment stating on its face that the marriage was dissolved.
Apparently she also filed with that motion a new proposed final
judgment that addressed every issue as to which she disagreed
with the earlier order, although her proposed judgment is not in
our record. This filing set off a detailed objection from the former
husband through his counsel, and a back-and-forth series of e-
mails between the parties and letters to the trial court, ultimately
culminating in entry of the later order, apparently without a
hearing and without addressing the propriety of the procedure.

     The earlier order was final and appealable for the reasons set
forth above. Once the former wife’s timely motion for rehearing
was denied, the time to appeal began to run, and expired without
an appeal’s having been filed. At that point, the earlier order was
final and binding on the parties and had res judicata effect. See
Donaldson Engineering, Inc. v. City of Plantation, 326 So. 2d 209,
210 (Fla. 4th DCA 1976). By failing to appeal, the parties were
bound by the earlier order. Their subsequent arguments arose out
of purported errors in the order, not out of changed circumstances,
and thus after rehearing was denied, their remedy was an appeal.
See id. (“If the City had felt that such factual finding was
erroneous, it should have sought a rehearing or sought a reversal
upon appeal.”).

    Modification under Florida Rule of Civil Procedure 1.540
would not apply to a judicial error. Donaldson Engineering, 326 So.
2d at 210. The only other avenue to modify a final order in a family
law case is by showing changed circumstances. See, e.g., §§ 61.13,
61.14, Fla. Stat. (2017) (authorizing changes in child issues and
alimony, respectively, upon a showing of changed circumstances).

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Not even that avenue of modification is available for property-
rights issues, however. The lower tribunal had no statutory
authority to enter post-judgment orders on the parties’ property
rights. See Mason v. Mason, 371 So. 2d 226, 227 (Fla. 2d DCA
1979); Pruitt v. Pruitt, 370 So. 2d 813 814 (Fla. 3d DCA 1979)
Sistrunk v. Sistrunk, 235 So. 2d 53, 55 (Fla. 4th DCA 1970); see
also Bragdon v. Bragdon, 393 So. 2d 73, 74 (Fla. 5th DCA 1981)
(rejecting parties’ attempt to revisit dissolution judgment absent
changed circumstances, because “Trial courts cannot act as their
own appellate courts and review their decisions months after they
are made.”).

     After denying the timely motion for rehearing addressed to
the earlier order, and absent any showing of changed
circumstances, the trial court was without jurisdiction to modify
the earlier order in the ways that it did. The later order was a
nullity. Accordingly, we dismiss this appeal and cross-appeal.

    DISMISSED.

WINOKUR, J., concurs; WINSOR, J., dissents with opinion.
                _____________________________

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

WINSOR, J., dissenting.

     The trial court’s original order was not final because it left
judicial work remaining. M.M. v. Fla. Dept. of Children &
Families, 189 So. 3d 134, 137 (Fla. 2016) (“An appeal from a final
order is appropriate when judicial labor has ended.”). Although the
order provided a formula for distributing the former husband’s
retirement, it explicitly reserved jurisdiction “to determine the
amount to be divided” pursuant to that formula. “The retention of
jurisdiction over a matter, notwithstanding the issuance of an
order, suggests judicial labor is not over.” Id. at 140; accord Pool v.
Bunger, 43 So. 3d 837, 838 (Fla. 1st DCA 2010) (“The order is not
a final order because the trial court’s judicial labor is not complete,

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as reflected by the express reservation of jurisdiction to determine
the amount of Appellant’s child support arrearages.”); Demont v.
Demont, 24 So. 3d 699 (Fla. 1st DCA 2009) (holding that orders
reserving jurisdiction on matters that require further judicial
labor are not final); see also Fischer v. Fischer, 224 So. 3d 919, 919-
20 (Fla. 1st DCA 2017) (collecting cases).

     It is no answer to say a court always retains jurisdiction to
enforce its orders. If the husband refused to pay what an order
specifically required, the court could step in to enforce its earlier
order. But if the husband cannot know how much to pay because
the court has yet “to determine to amount to be divided,” the court’s
stepping in is something quite different. Here, the court’s language
shows the judicial labor is not over.

     Nor is it an answer to say the trial court should not (or need
not) have reserved jurisdiction to determine the retirement
divisions. Perhaps a formula with specific direction would have
been enough for finality, had the court stopped there. But rightly
or wrongly, the court did not stop there. Instead, it reserved
jurisdiction to determine future allocations, showing that judicial
labor remained.

                     _____________________________


Jennifer D. Demming, pro se, Appellant, Cross-Appellee.

Gordon Edward Welch, Pensacola, for Appellee, Cross-Appellant.




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