       Third District Court of Appeal
                                State of Florida

                             Opinion filed July 25, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-2546
                          Lower Tribunal No. 14-25640
                              ________________


                           Mario Augusto Franco,
                                     Appellant,

                                         vs.

                          Marcia Ximena Thomas,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Law Offices of Trujillo & Associates, P.A., and Annabella Trujillo, for
appellant.

      Francisco Vargas, Esq., P.A., and Francisco J. Vargas, for appellee.


Before SUAREZ, SCALES and LUCK, JJ.

      SCALES, J.
      Appellant Mario Augusto Franco, the husband, and appellee Marcia Ximena

Thomas, the wife, entered into an oral settlement agreement during their March 14,

2016 marriage dissolution trial. One element of settlement was that each party

would retain his or her non-marital assets, one of which, the family home, was

purchased and owned solely by Franco prior to the marriage. On April 5, 2016, the

trial court entered a final judgment of dissolution of marriage that incorporated the

parties’ settlement agreement. Thomas neither moved for re-hearing nor appealed

the final judgment. Notwithstanding the dissolution judgment’s dispossessing

Thomas of any ownership interest in the home, Thomas and the two minor children

of the marriage remained living in this home. Franco filed a separate unlawful

detainer action, seeking to evict them from the home. Franco’s unlawful detainer

action was transferred to the circuit court’s family division.

      On May 5, 2016, pursuant to Florida Rule of Civil Procedure 1.540(b)(1)

and (3),1 Thomas filed in the dissolution action a motion to vacate the final


1 Rule 1.540(b)(1) and (3) read in relevant part: “On motion and upon such terms
as are just, the court may relieve a party . . . from a final judgment . . . for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (3)
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party . . . .” In 2016, Family Law Rule of
Procedure 12.540 provided simply that rule 1.540 governed all motions seeking
relief from family law judgments. Effective March 16, 2017, the Florida Supreme
Court amended rule 12.540 to parallel rule 1.540. In re: Amendments to Fla.
Family Law Rules of Procedure, 214 So. 3d 400, 465 (Fla. 2017). In this case, the
mid-proceedings rule change had no effect below, nor does it affect our
determination of the appeal.

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dissolution of marriage judgment, arguing that the dissolution judgment was the

result of mistake, surprise, coercion and duress. Franco opposed Thomas’s rule

1.540(b) motion by filing a summary judgment motion. During the October 26,

2017 hearing on Franco’s summary judgment motion, Thomas, for the first time,

introduced an alternate rationale for relief from the dissolution judgment. Citing

rule 1.540(b)(5),2 Thomas argued that, in light of Franco’s effort to evict Thomas

and the children from the home, the final dissolution judgment was “no longer

equitable.” Essentially, Thomas argued that, when it entered the final dissolution

judgment based on the parties’ settlement agreement, the trial court erred by not

taking into consideration where the couple’s minor children would live post-

dissolution. See Dorsett v. Dorsett, 902 So. 2d 947, 951-52 (Fla 4th DCA

2005)(reversing a final dissolution judgment premised upon the parents’ oral

agreement regarding relocation of a minor child, requiring the trial court to

determine independently that the agreed-upon arrangement does not harm the

interests of the child). In separate orders on appeal, the trial court denied Franco’s

summary judgment motion and granted Thomas’s rule 1.540 motion (thereby

vacating the final dissolution judgment), determining that “the Final Judgment is

not fair to the minor children.”

2 Rule 1.540(b)(5) reads in relevant part: “On motion and upon such terms as are
just, the court may relieve a party . . . from a final judgment . . . for the following
reasons: (5) . . . it is no longer equitable that the judgment . . . should have
prospective application.”

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        We reverse the trial court’s order vacating the final judgment of dissolution.

If Thomas wished to challenge the final judgment of dissolution on legal grounds

(for example, the judgment’s alleged non-compliance with the dictates of Dorsett),

it was incumbent upon Thomas either to seek a timely rehearing from the

dissolution judgment pursuant to Florida Rule of Civil Procedure 1.5303 or to

appeal the final judgment. Neither rule 1.540, nor its family law equivalent (rule

12.540), is an appropriate vehicle to challenge a judgment based upon alleged legal

error. Curbelo v. Ullman, 571 So. 2d 443, 445 (Fla. 1990); Theodorides v.

Theodorides, 201 So. 3d 141, 143-44 (Fla. 3d DCA 2015). Thomas has not

provided us with any authority that would extend the limited scope of rule

1.540(b)(5) to the situation presented here.

        Reversed.4




3 In 2016, Family Law Rule of Procedure 12.530 provided simply that rule 1.530
governed all motions seeking rehearing of family law judgments.       Effective
March 16, 2017, the Florida Supreme Court amended rule 12.530 to mirror rule
1.530. In re: Amendments to Fla. Family Law Rules of Procedure, 214 So. 3d 400,
464-65 (Fla. 2017). In this case, the mid-proceedings rule change had no effect
below, nor does it affect our determination of the appeal.
4   We express no opinion as to whether Thomas may have other avenues of relief.

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