IN RE MARRIAGE OF CHARLES W. KIRBY
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Scott I. Suskauer and Catherine M.
Brunson, Judges; L.T. Case No. 501993DR000747XXDIFC.
Rowe-Linn of Peggy Rowe-Linn, P.A., West Palm Beach, for
appellant, Charles W. Kirby.
S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman &
Cohen, North Palm Beach, for appellee, Rory Kirby, deceased.
former wife, appellee, died on May 30, 2017. Her counsel
notified the trial court of the former wife's death the
following day. Before the estate was even opened and the
estate substituted as a party, the trial court granted the
former husband's motion for attorney's fees,
intending to bind the former wife's estate and heirs. A
successor judge vacated the attorney's fees order and
dismissed the case against the former wife. The former
husband appeals. We find that the trial court correctly
vacated the initial judge's granting of attorney's
fees, without notice to the former wife's estate. We thus
affirm the vacatur of the fee order but, on confession of
error, reverse the dismissal of the action against the former
appeal stems from a proceeding ancillary to the parties'
1993 divorce. In 2015, the former husband petitioned to
modify his alimony obligation. During the course of the
modification proceedings, a discovery matter arose. As a
result of this discovery issue, the trial court determined
that the former husband would be awarded attorney's fees
in the matter. A hearing on the former husband's fee
motion was held on May 19, 2017, during which both parties
on May 31, 2017, the former wife's attorney filed a
suggestion of death indicating that the former wife had
passed away on May 30. The former husband moved to substitute
the former wife's estate as a party, but his motion was
never ruled on. Then, on June 19, 2017-after the former
wife's death but before her estate had been substituted
as a party or even opened-the trial court entered an order
granting the former husband's motion for attorney's
fees. In the order, the trial court acknowledged the former
wife's death, but nonetheless expressed its intent
"to bind her estate, heirs, agents, and
representatives." It therefore ordered that the former
husband's attorney was entitled to recover her fees
"against [the former wife] and her heirs, successors,
agents and assigns." The estate was filed and opened on
June 20, the day after the trial court's order granting
attorneys subsequently filed notices of appearance on behalf
of the deceased former wife. After two judicial
reassignments, the attorneys filed a motion to vacate the
June 19, 2017, fee order and dismiss the case as to the
former wife because the estate was not substituted within
ninety days of the suggestion of death. The trial court
summarily granted the motion in both regards and this appeal
court generally reviews an order on a motion to vacate for
abuse of discretion. Segalis v. Roof Depot USA, LLC,
178 So.3d 83, 85 (Fla. 4th DCA 2015). However, when the
decision to vacate is based on a pure question of law, this
court conducts de novo review. Id.
trial court correctly vacated the order granting
attorney's fees to the former husband. Obviously, upon
the former wife's death, she ceased to be present before
the court. Additionally, absent a valid order substituting
the estate, the estate was not before the court on June 19,
2017, either. It is error to enter judgment against a
non-present party. Floyd v. Wallace, 339 So.2d 653,
654 (Fla. 1976) (finding cause of action abated upon death of
indispensable party and court erred in "adjudicating the
rights of the parties without having all of them actually or
constructively before it" before properly substituting
party in deceased respondent's case).
neither the former wife nor the estate was properly before
the court at the time the fee order was entered, that order
was void ab initio. In such circumstances, the trial court
should have abated proceedings until the substitution of the
estate or personal representative. See Mattick v.
Lisch, 43 Fla.L.Weekly D2467 (Fla. 2d DCA Nov. 2, 2018)
(stating that upon suggestion of death, correct course is to
abate action until "the estate or a proper legal
representative" is substituted). Due process mandates
that the estate be given notice of the hearing that resulted
in binding the estate to pay attorney's fees to the
former husband. As such, the successor judge below was
correct in vacating the order, albeit for a different reason.
See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731
So.2d 638, 644 (Fla. 1999) ("In some circumstances, even
though a trial court's ruling is based on improper
reasoning, the ruling will be upheld if there is any theory
or principle of law in the record which would support the
is warranted, however, on the order granting the former
wife's motion to dismiss. In granting the motion to
dismiss, the trial court erroneously relied upon the former
wife's representation that Florida Rule of Civil
Procedure 1.260 applied. That rule requires that an action be
dismissed if a motion for substitution is not made within
ninety days of an opposing party's death. Fla. R. Civ. P.
1.260(a)(1). As the former wife now concedes, that rule is
the applicable rule was Florida Family Law Rule 12.260(a)(1),
which does not set out a ...