text:
    Delana RUBLE, Appellant, v. Raymond J. RUBLE, Appellee.
    No. 2D03-3251.
    District Court of Appeal of Florida, Second District.
    July 21, 2004.
    Rehearing Denied Sept. 9, 2004.

      Gary A. Urso, New Port Richey, for Appellant.
    Raymond J. Ruble, pro se.
   KELLY, Judge.

Delana Ruble (the wife) appeals from an order denying her motion to vacate a final judgment of dissolution of marriage. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The wife’s motion challenged the portion of the final judgment that granted custody of the parties’ child to her former husband, Raymond J. Ruble (the husband). We.conclude that the wife was entitled to relief from the judgment because the husband failed to comply with the Uniform Child Custody Jurisdiction Act (UCCJA) and because he failed to request custody of the child in his pleadings. Accordingly, we reverse.

The husband filed a petition for dissolution of marriage in December 1998. He did not request custody in his petition. The wife filed her counterpetition in February 1999, requesting primary custody of the child, child support, temporary support, and restricted visitation for the husband. At that time, the wife and the child were residing in Redding, Californiá. Neither party took any action in the dissolution proceedings for over two years. Then, in April 2001, the husband requested an emergency hearing seeking temporary custody of the parties’ child. His motion alleged that the wife was moving around the country in an effort to secret the child from him and to deny the child any contact with the husband’s family.

In October 2001, the court awarded temporary custody of the child to the husband. The court also scheduled a final hearing and ordered the husband to notify the wife of the hearing. The husband made some effort to locate the wife in California. When his mail was returned undelivered, he published a notice of hearing in Shasta County, California. However, the wife had since relocated to Oregon.

In November 2002, following a hearing conducted in the wife’s absence, the court entered a final judgment of dissolution of marriage granting sole custody of the child to the husband. The final judgment made no findings of fact regarding the best interest of the child. Shortly after the final judgment was entered, the husband located the wife and child in Oregon, took custody of the child, and returned with him to Florida.

The wife filed an emergency motion for relief from judgment in January 2003. The motion alleged that the husband had perpetrated a fraud upon the court by alleging that he did not know the whereabouts of the wife and the child. The matter went to hearing in February 2Ó03. Judge Amy Williams denied the wife’s request to vacate the final judgment. The hearing was not transcribed and the wife did not appeal that order.

On February 26, 2003, the wife filed another emergency motion for relief from judgment. In an order dated June 9, 2003, Judge Mark Shames found that many of the matters alleged in the motion had been alleged in the wife’s first motion and that Judge Williams had apparently considered and rejected those matters. The court found that only two issues were not raised in the first motion: that the husband failed to request custody in his pleadings and that the court lacked jurisdiction because the husband failed to file a UCCJA affidavit as required by section 61.132(1), Florida Statutes (1997) .

The court agreed that the husband never requested custody of the child in his pleadings. The court further agreed that no UCCJA affidavit was filed at the time of the petition for dissolution of marriage or at any time before the entry of the final judgment. The court nevertheless concluded that it had jurisdiction over the parties and their child and that “under the circumstances previously set forth,” it would not set aside the final judgment of dissolution. The “circumstances” were that the wife knew there was a pending civil action in Florida and she failed to keep the court apprised of her address. We disagree with the trial court’s conclusion.

Section 61.132(1) requires every party in a custody proceeding in his or her first pleading or in an affidavit attached to that pleading to give information under oath concerning the child’s custodians and residences during the past five years and any other proceedings involving the custody of the child. The husband gave none of the above information in his petition filed in 1998, nor at any time before the final judgment was entered. The failure to provide this sworn evidence deprives the court of subject matter jurisdiction and renders the custody provisions of the final judgment unenforceable. See Kochinsky v. Moore, 698 So.2d 397 (Fla. 4th DCA 1997) (holding that compliance with the affidavit requirements of the UCCJA is mandatory). “The filing of the affidavit after the entry of the order does not cure the jurisdictional defect created.” Id. at 399. Without that affidavit, the husband did not obtain an enforceable order.

The husband argues that the wife admitted in her counterpetition that the court had jurisdiction. However, although the court may have had personal jurisdiction over the husband and the wife to grant the divorce, the court did not have subject matter jurisdiction over the custody proceedings under the UCCJA. Subject matter jurisdiction is conferred upon a court by the constitution or by statute and cannot be created by waiver, acquiescence or agreement of the parties. See Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995). Therefore, the wife’s acquies cence is irrelevant to the analysis of whether the court had subject matter jurisdiction. The lack of subject matter jurisdiction can be raised as a defense at any time, even on appeal. Fla. R. Civ. P. 1.140(h); Gonzalez v. Gonzalez, 654 So.2d 257 (Fla. 3d DCA 1995).

The trial court also erred in refusing to set aside the final judgment because the husband had never requested permanent custody in his petition. See McDonald v. McDonald, 732 So.2d 505 (Fla. 4th DCA 1999) (holding that it is reversible error to grant relief not sought by the pleadings). The husband argues that although his petition did not request custody, his motion to have custody matters determined by mediation raised the issue. This motion was insufficient to put the wife on notice that she was in danger of losing custody of her son. Further, although the husband subsequently moved for temporary custody of the child, he never amended his petition to request permanent custody.

Accordingly, we reverse and remand for farther proceedings. On remand the trial court, in determining the child’s primary residence, must consider the best interest of the child in light of his present circumstances and make its findings known in the order awarding custody.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Section 61.132, Florida Statutes, was repealed by chapter 2002-65, section 7, at 870, Laws of Florida, effective October 1, 2002. That section has been replaced by section 61.522, Florida Statutes.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Roy WILKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2760.
    District Court of Appeal of Florida, Second District.
    July 21, 2004.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Roy Wilkerson appeals the judgment and sentence entered following the revocation of his probation. Because the State failed to prove a willful and substantial violation of Wilkerson’s probation, we reverse.

On February 28, 2002, Wilkerson was placed on thirty-six months’ probation for burglary of a dwelling. Probationary condition 18 provided: ‘You must undergo a mental health evaluation, and if treatment is deemed necessary you must successfully complete the treatment and any aftercare.” The order did not specify a time period for completion of this condition. Although Wilkerson underwent a mental health evaluation and began a treatment program, the trial court revoked Wilkerson’s probation after he was discharged from the program twice for excessive absences.

This court has consistently held that if a defendant is discharged or terminated from a required treatment program prior to its completion, the discharge or termination does not amount to a willful and substantial violation of probation when the probation order does not require completion within a specified period of time and sufficient time remains for the defendant to complete the program. See, e.g., Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004); Lawson v. State, 845 So.2d 349 (Fla. 2d DCA 2003); Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002). Although Wilkerson was twice discharged from his treatment program, the State did not establish that he was either unwilling or unable to complete the program during his probationary term. Because Wilkerson has the remainder of his probationary period to comply with condition 18, the State failed to establish a willful and substantial violation of probation. See Davis, 862 So.2d 931.

We note Judge Casanueva’s recent observation that “the better practice is for the sentencing court to specify all performance conditions, such as the number of opportunities and a time period for completion of specific probationary conditions.” Id. at 935 (concurring opinion). If time limits are clearly established for the completion of treatment programs, defendants will know what is required of them to comply with their probationary conditions.

Because the State did not establish a willful and substantial violation of Wilkerson’s probation, we reverse the order revoking Wilkerson’s probation.

Reversed.

CASANUEVA and CANADY, JJ., Concur.


text:
    Gerardo SOLORIO, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-113.
    District Court of Appeal of Florida, Second District.
    July 21, 2004.
    Gerardo Solorio, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

We affirm the trial court’s denial of Gerardo Solorio’s petition “to compel the Pas-co County prosecuting authorities to execute or dismiss any and all (warrants) [sic] now active” against him. However, our affirmance is without prejudice to Solorio’s seeking any relief to which he may be entitled pursuant to section 941.45, Florida Statutes (2003), the Interstate Agreement on Detainers. Affirmed.

ALTENBERND, C.J., and KELLY, J., Concur.


author: FULMER, Judge.

text:
    Linda G. KANTARAS, Appellant, v. Michael J. KANTARAS, Appellee.
    No. 2D03-1377.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Rehearing Denied Sept. 29, 2004.
    Mathew D. Staver, Erik W. Stanley, and Anita L: Staver of Liberty Counsel, Long-wood, for Appellant.
    Rebecca Harrison Steele of Law Office of Rebecca Harrison Steele, P.A., Tampa; Karen M. Doering, Tampa; and Collin D. Vause, Clearwater, for Appellee.
   FULMER, Judge.

Linda Kantaras appeals from a final judgment dissolving her marriage to Michael Kantaras. This appeal presents an issue of first impression in Florida: whether a postoperative female-to-male transsexual person can validly marry a female under the current law of this state. We hold that the law of this state does not provide for or allow such a marriage; therefore, we reverse the final judgment and remand for the trial court, to declare the marriage of the parties void ab initio.

In 1959 Margo Kantaras was born a female in Ohio. In 1986 Margo changed her name to Michael John Kantaras, and in 1987 Michael underwent sex reassignment, which included hormonal treatments, a total hysterectomy, and a double mastectomy. In 1988 Michael met Linda, and Linda learned of Michael’s surgeries. Linda, who was pregnant by a former boyfriend, gave birth to a son in June 1989. Linda and Michael applied for a marriage license with Michael representing that he was male. The two married in July 1989 in Florida. In September 1989, Michael applied to adopt Linda’s son, •with Michael representing to the court that he was Linda’s husband. Linda gave birth to a daughter in 1992 after Linda underwent artificial insemination with the sperm of Michael’s brother.

In 1998 Michael filed a petition for dissolution of marriage seeking to dissolve his marriage to Linda and to obtain custody of both children. Linda answered and coun-terpetitioned for dissolution and/or annulment claiming that the marriage was void ab initio because it violated Florida law that bans same-sex marriage. Linda claimed that the adoption of her son was void because it violated Florida’s ban on homosexual adoption, and she claimed that Michael was not the biological or legal father of her daughter. After a lengthy trial, the trial court entered an order finding that Michael was legally a male at the time of the marriage, and thus, the trial court concluded that the marriage was valid. The trial court also concluded that Michael was entitled to primary residential custody of the two children.

In outlining its reasons for determining that Michael was male at the time of the marriage, the trial court stated, in part:

24. Michael at the date of marriage was a male based on the persuasive weight of all the medical evidence and the testimony of lay witnesses in this case, including the following:
(a) As a child, while born female, Michael’s parents and siblings observed his male characteristics and agreed he should have been born a “boy.”
(b) Michael always has perceived himself as a male and assumed the male role doing house chores growing up, played male sports, refused to wear female clothing at home or in school and had his high school picture taken in male clothing.
(c) Prior to marriage he successfully completed the full process of transsexual reassignment, involving hormone treatment, irreversible medical surgery that removed all of his female organs inside of his body, including having a male reconstructed chest, a male voice, a male configured body and hair with beard and moustache, and a naturally developed penis.
(d) At the time of the marriage his bride, Linda was fully informed about his sex reassignment status, she accepted along with his friends, family and wor[k] colleagues that Michael in his appearance, characteristics and behavior was perceived as a man. At the time of the marriage he could not assume the role of a woman.
(e) Before and after the marriage he has been accepted as a man in a variety of social and legal ways, such as having a male driving license; male passport; male name change; male modification of his birth certificate by legal ruling; male participation in legal adoption proceedings in court; and as a male in an artificial insemination program, and participating for years in school activities with the children of this marriage as their father. All of this, was no different than what Michael presented himself as at the date of marriage.
25. Michael was born a heterosexual transsexual female. That condition [which] is now called “Gender Identity Dysphoria,” was diagnosed for Michael in adulthood some twenty (20) years after birth. Today and at the date of marriage, Michael had no secondary female identifying characteristics and all reproductive female organs were absent, such as ovaries, fallopian tubes, cervix, womb, and breasts. The only feature left is a vagina which Dr. Cole testified was not typically female because it now had a penis or enlarged, elongate[d] clitoris.
26. Michael after sex reassignment or triatic treatments would still have a chromosomal patter [sic] (XX) of a woman but that is a presumption. No chromosomal tests were performed on Michael during the course of his treatment at the Rosenberg Clinic.
27. Chromosomes are only, one factor in the determination of sex and they do not overrule gender or self identity, which is the true test or identifying mark of sex. Michael has always, for a lifetime,. had a self-identity of a male. Dr. Walter Bockting, Dr. Ted Huang and Dr. Collier Cole, all testified that Michael Kantaras is now and at the date of marriage was medically and, legally “male.”
28. Under the marriage statute of Florida, Michael is deemed to be male, and the marriage ceremony performed in the Sandford [sic] County Court house on July 18,1989, was legal.

The issue in this case involves the interplay between the Florida statutes governing marriage and the question of whether Michael Kantaras was legally male or female when he married Linda. We first address the relevant statutes and then discuss our reasons for concluding that the trial court erred in finding that Michael was male at the time of the marriage.

The Florida Legislature has- expressly banned same-sex marriage. As amended in 1977 by chapter 77-139, Laws of Florida, the statute governing the issuance of a marriage license, at the time one was issued in this case, provided that no license shall be issued unless one party is a male and the other-a female:

No county court judge or clerk of the circuit court in this state shall issue a license for the marriage of any person unless there shall be first presented and filed with him an affidavit in writing, signed by both parties to the marriage, made and subscribed before some person authorized by law to administer an oath, ... and unless one party is a male and the other party is a female.

§ 741.04(1), Fla. Stat. (1987). In 1997, the legislature enacted the Florida Defense of Marriage Act, prohibiting marriage between persons of the same sex:

(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.
(2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state, territory, possession, or tribe of the United States or of any other jurisdiction, either domestic or foreign, or any other, place or location respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.
(3) For purposes of interpreting any state statute or rule, the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.

§ 741.212, Fla. Stat. (Supp.1998).

Courts in Ohio, Kansas, Texas, and New York have addressed issues involving the marriage of a postoperative transsexual person, and in all cases the courts have invalidated or refused to allow the marriage on the grounds that it violated state statutes or public policy. In the case of In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Probate 1987), the court found that a postoperative male-to-female transsexual was not permitted to marry a male. “[TJhere is no authority in Ohio for the issuance of a marriage license to consummate a marriage between a post-operative male to female transsexual person and a male person.” Id. at 832.

This court is charged with the responsibility of interpreting the statutes of this state.... Since the case at bar is apparently one of first impression in Ohio, it is this court’s opinion that the legislature should change the statutes, if it is to be the public policy of the state of Ohio to issue marriage licenses to postoperative transsexuals.

Id.

More recently an Ohio appellate court agreed with the decision in Ladrach and affirmed a trial court’s denial of a marriage license to a postoperative female-to-male transsexual and a female. See In re A Marriage License for Nash, Nos.2002-T-0149, 2002-T-0179, 2003 WL 23097095 (Ohio Ct.App. Dec. 31, 2003). Noting that “Ohio, like most states, has a clear public policy that authorizes and recognizes marriages only between members of the opposite sex,” the court concluded that the term “male” as used in the marriage statute does not include a female-to-male postoperative transsexual. Id. at *5-6. Agreeing with the court in Ladrach that it was the responsibility of the legislature to change the public policy, the court stated that it was “loath to expand the statutory designation of individuals who may marry through judicial legislation.” Id. at *7.

The Kansas Supreme Court declared a marriage void after it found that a postoperative male-to-female transsexual was not a woman. See In re Estate of Gardiner, 273 Kan. 191, 42 P.3d 120 (2002), cert. denied, 537 U.S. 825, 123 S.Ct. 113, 154 L.Ed.2d 36 (2002). Gardiner, a probate case, involved the question of who was the rightful heir to the intestate estate of Marshall Gardiner: Gardiner’s son, Joe, or J’Noel Gardiner, a male-to-female transsexual who married Marshall Gardiner the year before his death. Id. at 122. Joe sought summary judgment on the ground that J’Noel’s marriage to Marshall was void. Id. at 123. The district court granted summary judgment concluding that the marriage was void under Kansas law on the ground that J’Noel was a male. Id. The court of appeals reversed and directed the district court to determine whether J’Noel was male or female at the time the marriage license was issued, taking into account a number of factors in addition to chromosomes. Id. at 132-34. The Supreme Court of Kansas granted Joe’s petition for review and reversed the decision of the court of appeals, concluding that the district court had properly entered summary judgment on the ground that J’Noel’s marriage to Marshall was void. Id. at 136-37.

The supreme court concluded that the issue on appeal was one of law, not fact, and it involved the interpretation of the Kansas statutes. Id. at 135. The court recognized that “[t]he fundamental rule of statutory construction is that the intent of the legislature governs.” Id. After discussing the common meaning of the terms sex, male, and female, the court stated:

The words “sex,” “male,” and “female” in everyday understanding do not encompass transsexuals. The plain, ordinary meaning of “persons of the opposite sex” contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria. A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to “produce ova and bear offspring” does not and never did exist. There .is no womb, cervix, or ovaries, nor is there any change in his chromosomes. As the Littleton court noted, the transsexual still “inhabits ... a male body in all aspects other than what the physicians have supplied.” 9 S.W.3d at 231. J’Noel does not fit the common meaning of female.

Id. at 135.

In response to the court of appeals’ conclusion that a question remained as to whether J’Noel was a female at the time the license was issued for the purpose of the statute, the supreme court stated:

We do not agree that the question remains. We view the legislative silence to indicate that transsexuals are not included. If the legislature intended to include transsexuals, it could have been a simple matter to have done so. We apply the rules of statutory construction to ascertain the legislative intent as expressed in the statute. We do not read into a statute something that does not come within the wording of the statute.

Id. at 136 (citation omitted). The supreme court stated further:

[T]he legislature clearly viewed “opposite sex” in the narrow traditional sense.... We cannot ignore what the legislature has declared -to be the public policy of this state. Our responsibility is to interpret [the statute] and not to rewrite it. ... If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J’Noel is -of the opposite sex of Marshall would require that we rewrite [the statute].

Id. at 136-37. The supreme court concluded that “the validity of J’Noel’s marriage to Marshall is a question of public policy to be addressed by the legislature and not by this court.” Id. at 137.

In Littleton v. Prange, 9 S.W.3d 223 (Tex.App.1999), the Texas court found a marriage between a man and a postoperative male-to-female transsexual void. Christie Littleton, the transsexual, married Jonathon Mark Littleton in Kentucky in 1989. Id. at 225. After Jonathon’s death in 1996, Christie sued Dr. Prange for medical malpractice in her capacity as Jonathon’s surviving spouse. Id. The doctor moved for summary judgment asserting that Christie was a man and could not be the surviving spouse of another man. Id. The trial court agreed and granted summary judgment. Id.

The appeals court concluded .that the case presented a pure question of law. Id. at 230.

In our system of government it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of marriages involving transsexuals....
It would be intellectually possible for this court to write a protocol for when transsexuals would be recognized as having successfully changed their sex.... But this court has no authority to fashion a new law on transsexuals, or anything else. We cannot make law when no law exists: we can only interpret the written word- of our sister branch of government, the legislature.

Id. at 230. The court concluded “as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse.” Id. at 231.

New York courts have also refused to recognize transsexual marriage. See Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (1971); Frances B. v. Mark B., 78 Misc.2d 112, 355 N.Y.S.2d 712 (1974). In Frances B., the plaintiff, a woman, filed an annulment action claiming that, prior to the marriage, the defendant (a postoperative female-to-male transsexual) fraudulently represented himself as a male, although the defendant did not have male sex organs and was still a woman. 355 N.Y.S.2d at 713. The defendant moved to amend his answer to include a counterclaim for divorce on the ground of abandonment. Id. at 714. The court, noting the public policy that the marriage relationship exists for the purpose of begetting offspring, concluded that the defendant’s sex reassignment surgery did not enable the defendant to perform male sexual functions in a marriage:

Assuming, as urged, that defendant was a male entrapped in the body of a female, the record does not show that the entrapped male successfully escaped to enable defendant to perform male functions in a marriage. Attempted sex reassignment by mastectomy, hysterectomy, and androgenous hormonal therapy, has not achieved that result.

Id. at 717. Thus, the court concluded that, as a matter of law, the defendant had no basis to counterclaim for divorce. Id. at 716-17.

There is one case in the United States that has permitted transsexual marriage. In M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204 (1976), the husband sought an annulment on the ground that his wife was a male-to-female transsexual. The New Jersey court rejected the husband’s argument, upheld the validity of the marriage, and affirmed a judgment of the lower court obligating the husband to support the transsexual as his wife. 355 A.2d at 211. After considering the medical evidence, the court held that when a transsexual person has successfully undergone sex-reassignment and can fully function sexually in the reassigned sex, then the person could marry legally as a member of the sex finally indicated. Id. at 210-11.

In sum, it has been established that an individual suffering from the condition of transsexualism is one with a disparity between his or her genitalia or anatomical sex and his or her gender, that is, the individual’s strong and consistent emotional and psychological sense of sexual being. A transsexual in a proper case can be treated medically by certain supportive measures and through surgery to remove and replace existing genitalia with sex organs which will coincide with the person’s gender. If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person’s identification at least for purposes of marriage to the sex finally indicated.

Id. at 210-11.

In the case before us, the trial court relied heavily on the approach taken by an Australian family court in In re Kevin, (2001) 28 Fam. L.R. 158, aff'd, 30 Fam. L.R. 1 (Austl.Fam.Ct.2003) (pagination of Lexis printout), which the trial court believed “correctly states the law in modern society’s approach to transsexualism.” In that case, the Australian court took the view that courts must recognize advances in medical knowledge and practice and found that a female-to-male transsexual should be considered a man for purposes of marriage. Australia prohibits same-sex marriage; nevertheless, the court ruled that a marriage between a woman and a postoperative female-to-male transsexual was valid. In affirming the trial court, the Family Court of Australia stated in its conclusion:

Should the words “man” and “marriage” as used in the Marriage Act 1961 bear their contemporary ordinary everyday meaning?
Unless the context requires a different interpretation, the words “man” and “woman” when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment....

30 Fam. L.R. 1 at 48.

On appeal, Michael argues that the trial court properly adopted the approach taken by the Australian court. He further argues that the approach taken by the majority of courts in the United States that have addressed the issue of transsexual marriage ignore modern medical science. We disagree.

The controlling issue in this case is whether, as a matter of law, the Florida statutes governing marriage authorize a postoperative transsexual to marry in the reassigned sex. We conclude they do not. We agree with the Kansas, Ohio, and Texas courts in their understanding of the common meaning of male and female, as those terms are used statutorily, to refer to immutable traits determined at birth. Therefore, we also conclude that the trial court erred by declaring that Michael is male for the purpose of the marriage statutes. Whether advances in medical science support a change in the meaning commonly attributed to the terms male and female as they are used in the Florida marriage statutes is a question that raises issues of public policy that should be addressed by the legislature. Thus, the question of whether a postoperative transsexual is authorized to marry a member of their birth sex is a matter for the Florida legislature and not the Florida courts to decide. Until the Florida legislature recognizes sex-reassignment procedures and amends the marriage statutes to clarify the marital rights of a postoperative transsexual person, we must adhere to the common meaning of the statutory terms and invalidate any marriage that is not between persons of the opposite sex determined by their biological sex at birth. Therefore, we hold that the marriage in this case is void ab initio.

Our holding that the marriage is void ab initio does not take into consideration the best interests of the children involved in this case. While we recognize that the trial judge went to great lengths to determine the best interests of the children, the issue of deciding primary residential custody was dependent on the trial court’s conclusion that the marriage was valid. We do not attempt to undertake a determination of the legal status of the children resulting from our conclusion that the marriage is void. The legal status of the children and the parties’ property rights will be issues for the trial court to examine in the first instance on remand.

Reversed and remanded with directions to grant the counterpetition for annulment declaring the marriage between the parties void ab initio.

COVINGTON and WALLACE, JJ„ Concur.

      . Our references to Michael Kantaras as "he” throughout this opinion are not intended to carry a legal significance.


author: NORTHCUTT, Judge.

text:
    Steve KRANIAS and Tina Kranias, Appellants, v. Jim TSIOGAS, Pogoni Land Trust, LLC, a Florida Limited Liability Company, as Trustee under certain Land Trust Agreements Numbered as follows: 1142257537 PI SC, 0983049013 PI SC, 0963066649 PI SC, 0989031007 PI SC, 0952124602 PI SC, 0960115113 PI SC, 0961089006 PI SC, 0970063012 PI SC, 0989031103 PI SC, 0452110026 PI SC, 0960112719 PI SC, 0964083604 PI SC, 0961089823 PI SC, 0960111217 PI SC, 0985015314 PI SC, 0961088626 PI SC, 0970064112 PI SC, 0982047236 PI SC, 0987014223 PI SC, 0967059513 PI SC, 0967060008 PI SC, 0967060644 PI SC, 0969062705 PI SC, 0987013910 PI SC, 0989029434 PI SC, 1004020108 PI SC, 1005010902 PI SC, 1005019212 PI SC, 1006008901 PI SC, 1006020607 PI SC, 1123231703 PI SC, 1127227706 PI SC, 1131208423 PI SC, 1133104917 PI SC, 1133105013 PI SC, 1138174716 PI SC, 1135086417 PI SC, 1145096923 PI SC, and Pogoni Investments, LLC, a Florida Limited Liability Company, Appellees.
    No. 2D03-3880.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Lee E. Haas of Hass & Castillo, P.A., Clearwater, for Appellants.
    James H. Burgess, Jr., of Burgess, Harrell, Mancuso, Olson & Colton, P.A., Sarasota, for Appellees.
   NORTHCUTT, Judge.

This case involves a dispute about the management of several limited liability companies and the ownership of real properties variously located in Pinellas and Sarasota Counties. In July 2002, Steve and Tina Kranias filed a circuit court suit in Pinellas County against Jim Tsiogas and four limited liability companies, Pogoni Land Trust LLC, Pogoni Investments LLC, Pogoni Management LLC, and Epicurus LLC (collectively “Pogoni”). The Kraniases asserted numerous causes of action, most of which alleged mismanagement of the limited liability companies and claimed that the disputed properties in both counties, which had been titled in the name of Pogoni, actually belonged to the Kraniases. Then, in October 2002, Tsiogas and two of the Pogoni companies filed suit against the Kraniases in Sarasota County, claiming the properties located in that county were owned by Pogoni. The Sarasota suit raised some but not all of the same causes of action asserted in the Pi-nellas suit, plus additional claims. Tsiogas and Pogoni asked the Sarasota court to appoint a receiver for the properties, which it did. In this nonfinal appeal, the Kraniases challenge that order. We reverse because the Sarasota court had no authority or jurisdiction to appoint a receiver for the properties.

In order to explain our result, we must briefly discuss the procedural quagmire that led to two separate lawsuits in two different counties, which essentially involve the same issue, i.e., ownership of the properties. In November 2002 the Pinel-las court dismissed three of the Kraniases’ causes of action — to quiet title, for a declaratory judgment, and for a constructive trust — insofar as those counts related to real properties located in Sarasota County. But the Pinellas court continued to exercise its jurisdiction over the Sarasota properties and the accompanying claims to them asserted in the remainder of the Kraniases’ counts, including those seeking dissolution of the limited liability companies. After the Pinellas court entered this order, Tsiogas and Pogoni filed the Sarasota suit, asserting an action to quiet title and for a constructive trust concerning the Sarasota real estate, but also seeking relief based on breach of fiduciary duty, rescission, and other theories. Their complaint also included a count for a “receiver,” but they did not request a judicial dissolution of the limited liability companies.

Even so, Tsiogas’s and Pogoni’s motion for the appointment of a receiver was grounded on management conflicts in the limited liability companies, and it asserted that a receivership was authorized under sections 608.449 and 608.4491, Florida Statutes (2002), which address the judicial dissolution of limited liability companies. Section 608.4491 authorizes a “court in a proceeding brought to dissolve a limited liability company” to “appoint a receiver” and to “take other action required to preserve the limited liability company’s assets wherever located, and carry on the business of the limited liability company until a full hearing can be held.” (Emphasis supplied.) Likewise, section 608.4492(1) authorizes a “court in a judicial proceeding brought to dissolve a limited liability company” to “appoint one or more receivers to wind up and liquidate, or one or more custodians to manage, the business and affairs of the limited Lability company.” Thus, in this dispute the authority to appoint a receiver lies in the Pinellas court, where the action to dissolve the limited liability companies is pending, not the Sarasota court, where dissolution has not been sought. And, as section 608.4492(1) makes clear, if the Pinellas court were to appoint a receiver, it would have “exclusive jurisdiction over the limited liability company and all of its property wherever located.” See, id. (emphasis supplied).

Moreover, our record reveals that the Sarasota court was concerned with its power to act in this case, given the pending Pinellas suit. The court was aware that when a single set of facts is in controversy, and suits are pending between the parties in two different judicial circuits, jurisdiction lies in the circuit where service of process is first perfected. Mabie v. Garden St. Mgmt. Corp., 397 So.2d 920, 921 (Fla.1981); Fla. Ins. Guar. Ass’n Inc. v. Celotex Corp., 547 So.2d 660, 661 (Fla. 2d DCA 1989). Our record in this nonfinal appeal does not reveal whether every claim in the Sarasota suit is based on the set of facts pending determination in the Pinellas suit. But vis-a-vis the facts and legal issues surrounding the dissolution of the limited liability companies, jurisdiction rests in the Pinellas court, where the first and only action seeking to dissolve them was filed. The Sarasota court did not have jurisdiction and therefore could not appoint a receiver for the property claimed to be owned by Pogoni. See County Nat’l Bank of N. Miami Beach v. Stern, 287 So.2d 106, 107 (Fla. 3d DCA 1974) (stating that a circuit court must have jurisdiction over the subject matter of the suit in order to appoint a receiver).

The order appointing a receiver is reversed.

WHATLEY and STRINGER, JJ„ Concur.

      . Fla. R.App.P. 9.130(a)(3)(D).

      . The court also left pending the Kraniases' causes of action for slander of^itle, fraud, breach of fiduciary duty, and rescission.


author: ALTENBERND, Chief Judge.

text:
    COMMONWEALTH LAND TITLE INSURANCE COMPANY, Appellant, v. Stephen A. FREEMAN and Nelson Slosbergas, as Trustees, Appellees.
    No. 2D03-4802.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.

      Marsha G. Rydberg and Thomas H. Rydberg of The Rydberg Law Firm, P.A., Tampa, for Appellant.
    Mark J. Bernet and Jon T. Gatto of Buchanan Ingersoll, P.C., Tampa, for Ap-pellees.
   ALTENBERND, Chief Judge.

Commonwealth Land Title Insurance Company (Commonwealth) appeals an order granting relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). We conclude that the motion filed by Stephen A. Freeman and Nelson Slosbergas, as trustees (the Trustees), contained no grounds entitling them to relief. Likewise, the trial court lacked a basis to provide relief on its own motion. The trial court correctly determined that it could not grant relief pursuant to Florida Rule of Civil Procedure 1.530(g). Accordingly, we reverse the order and remand for reentry of the judgment.

In 1995, the Trustees loaned the Fein-stein Family Trust $2.1 million, secured by a mortgage on three parcels of real property. Commonwealth issued a lender’s policy of title insurance for this transaction. Thereafter, the Feinstein Family Partnership filed a chapter 11 bankruptcy proceeding. In connection with the bankruptcy, two issues arose, which are not germane to this discussion. These issues might have permitted the Trustees to make a claim on the insurance policy based on other liens asserted against the property in the chapter 11 proceeding.

Commonwealth filed an action for declaratory judgment against the Trustees to determine its rights and responsibilities under the insurance policy concerning these two issues. The Trustees filed a counterclaim for breach of contract. The parties stipulated to many facts and tried the remaining issues before the trial court. On December 20, 2002, the court sent the parties a detailed memorandum, which favored Commonwealth, containing extensive findings of fact and rulings on the legal issues. Thereafter, at the request of the trial court, counsel for Commonwealth prepared a draft final judgment based on the memorandum. On February 12, 2003, the trial court entered its final judgment in accordance with its earlier memorandum. At the end of this judgment, the court “adjudged” that “[the Trustees] take nothing by their counterclaim and Commonwealth shall go hence without day.”

On February 19, 2003, apparently on its own motion, the trial court filed an amended final judgment. The amended final judgment differs from the original judgment in only two minor ways. First, footnote 2 originally stated “Kennedy Funding was the holder of a prime mortgage,” and the amended version changed “prime” to “priming.” Second, footnote 8 had originally contained a list of items that the footnote stated were “printed in bold.” They were not so printed. The amended judgment stated that they were “printed in italics,” and they were so printed. The amendments changed nothing of substance in the final judgment, including the judgment in favor of Commonwealth on the counterclaim.

On Monday, March 3, 2003, the Trustees served a “motion to alter or amend judgment” pursuant to rules 1.530(g) and 1.540. This short motion alleged only that the court’s judgment “made no findings whatsoever regarding [the Trustees’] principal defense, namely, that by its representations and inactions [Commonwealth] had waived its right under the insurance policy to insist upon [the Trustees’] strict compliance with the terms thereof.” If the time for filing this motion was measured from the amended final judgment, it was served within the ten days allotted for a motion under rule 1.530(g). If measured from the original final judgment, however, the motion was untimely.

After a hearing, the trial court concluded that the motion was untimely under rule 1.530, but granted the motion pursuant to rule 1.540. In the order granting relief, the trial court did not conclude that it had left open the Trustees’ principal defense. Instead, it stated that it had failed to rule on the counterclaim due to inadvertence. The trial court found for the Trustees on the counterclaim, but concluded that the Trustees’ damages were much lower than they claimed. The trial court did not determine the exact amount of damages in granting relief from the judgment. Commonwealth appealed this order.

Commonwealth argues that the trial court erred in concluding that there were any grounds upon which it could grant relief from the final judgment. We agree. The trial court simply reversed its position on the counterclaim, suggesting that it had inadvertently failed to rule on the counterclaim when it had clearly entered judgment against the Trustees on this counterclaim.

Considering the Trustees’ motion first, it fails to allege any valid ground for relief from judgment that is enumerated in rule 1.540(b). The Trustees only argue that the trial court failed to rule on defenses presented at trial. This may be a valid ground for relief under rule 1.530, but it is not the type of mistake that permits relief from a judgment under rule 1.540(b). Rule 1.540(b) is intended to provide relief from judgments only under a limited set of circumstances. Fla. R. Civ. P. 1.540(b); Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.1990); Fiber Crete Homes, Inc. v. Div. of Admin., 315 So.2d 492, 493 (Fla. 4th DCA 1975). A motion filed pursuant to rule 1.540 cannot be used as a substitute for an untimely motion for new trial or rehearing. Allstate Ins. Co. v. Gulisano, 722 So.2d 216 (Fla. 2d DCA 1998).

Despite the lack of express language in the rule giving judges authority to grant relief under 1.540(b) on their own motions, precedent permits a trial court to grant such relief on its on motion. See Bortz v. Bortz, 675 So.2d 622, 624 (Fla. 1st DCA 1996); Fiber Crete Homes, 315 So.2d at 493; In re Estate of Weymer, 199 So.2d 495, 496-97 (Fla. 4th DCA 1967), receded from on other grounds, In re Beeman’s Estate, 391 So.2d 276 (Fla. 4th DCA 1980). The trial court, however, can only grant such relief for one of the enumerated reasons in the rule. “Mistakes which result from oversight, neglect or accident are subject to correction under rule 1.540(b)(1). However, judicial error such as a ‘mistaken view of the law’ is not one of the circumstances contemplated by the rule.” Curbelo, 571 So.2d at 445. Although the trial court characterized its correction as an -inadvertent omission, the trial court in reality reversed its legal position by finding a breach of contract by Commonwealth. This is the type of judicial error that is not correctable on a rule 1.540 motion. Curbelo, 571 So.2d at 444; Everett v. Fla. Transp. Servs., Inc., 744 So.2d 1038, 1039 (Fla. 4th DCA 1999); Bortz, 675 So.2d at 624.

We have considered whether the trial court may have had authority to grant relief from the judgment on its own motion pursuant to rule 1.540(a). That rule allows judges to correct errors in judgments at any time on their own initiative for errors that arise from “oversight or omission.” Although a trial court may correct a clerical error at any time under this rule, the law is clear that judicial errors that affect the substance of a judgment cannot be corrected in this fashion. Bolton v. Bolton, 787 So.2d 237, 238 (Fla. 2d DCA 2001); Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023 (Fla. 2d DCA 1985); Bortz, 675 So.2d at 624; see also Malone v. Percival, 875 So.2d 1286 (Fla. 2d DCA 2004). Thus, rule 1.540(a) was not a vehicle available to the trial court in this case.

Recognizing the possible weakness of their position under rule 1.540, the Trustees argue that the trial court was right for the wrong reason. They claim that the trial court could have granted this relief under rule 1.530 because their motion was actually timely as such a motion. They argue that the time for the service of the motion ran from the entry of the amended judgment. With some reluctance, we agree with the trial court that established law does not support this argument. When a party wishes to challenge a judgment by motion or appeal, the time to challenge the judgment runs from the original judgment unless an amendment changes or clarifies a matter of substance. Cf. St Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); DeGale v. Krongold, Bass & Todd, 773 So.2d 630, 631-32 (Fla. 3d DCA 2000).

St. Moritz Hotel and DeGale apply the rule in calculating the time for an appeal from a final judgment or an amended final judgment. For purposes of determining time for filing a rule 1.530 motion, we conclude that the rule announced in St. Moritz and DeGale is applicable here because review pursuant to rule 1.530 is inextricably related to the procedures for taking an appeal. Under St. Moritz and DeGale, the time to appeal a judgment commences with the rendition of the initial judgment if the amended judgment does not change matters of substance. A timely and authorized rule 1.530 motion stays rendition of that judgment. See Fla. R.App. P. 9.020(h). Thus, a rule 1.530 motion must be filed from the judgment that can be appealed because the trial court clearly cannot grant a new trial or rehearing pursuant to rule 1.530 in a case where the judgment can no longer be appealed. In this case, the thirty days to appeal the initial judgment expired while the untimely motion was pending in the trial court.

In the amended final judgment, the trial court simply corrected “prime” to “priming” and altered the font in a footnote. These changes did not disturb, revise, or further clarify any legal rights. As a result, the Trustees’ time for filing the motion pursuant to rule 1.530(g) ran from the date of the original final judgment. Thus, the trial court properly denied that aspect of the motion as untimely.

Accordingly, we reverse the order on appeal and require that the trial court reinstate the amended final judgment on remand.

STRINGER and VILLANTI, JJ., Concur.

      . Our record does not make clear the name of the trust entity for which Mr. Freeman and Mr. Slosbergas are trustees.


text:
    Little Tommy TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4370.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Senior Assistant Attorney General, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.

      . Cases like Vazquez usually assume that a prior felony conviction that is admissible on a charge of felon in possession of a firearm will be inadmissible and harmful only in reference to the other counts. This may be true in cases in which the involvement of a firearm in the criminal episode is beyond dispute. Here the existence of the firearm was hotly disputed. If the aggravated assault charge was severed from the charge of felon in possession of a firearm, the testimony of the witnesses would have been more restricted at the trial for felon in possession of a firearm. Thus, it is difficult to conclude that the joinder of the charges was harmless even as to the charge of felon in possession of a firearm. Nevertheless, because the trial court erred in admitting the 911 recording, Mr. Tucker is entitled to a new trial on all counts.

   ALTENBERND, Chief Judge.

Little Tommy Tucker appeals judgments for carrying a concealed firearm, aggravated assault with a firearm, and felon in possession of a firearm. Because the trial court refused Mr. Tucker’s request to sever the charge of felon in possession of a firearm from the other charges and because the court admitted into evidence a taped 911 call without properly evaluating whether it qualified as an excited utterance, we reverse the judgments and remand for a new trial.

Mr. Tucker and Jason Pinion had an argument on April 21, 2003. The subject of this argument was not well developed at trial, but the record suggests it may have concerned the whereabouts of the inventory of their joint venture in questionable pharmaceuticals. The day after this dispute, Mr. Tucker allegedly confronted Mr. Pinion in Frostproof, Florida, at approximately 5 p.m. Mr. Pinion was standing near a telephone pole on the street where he lived. Mr. Tucker was standing nearby. Mr. Pinion, a convicted felon, claimed that Mr. Tucker pulled a handgun out of his front pocket and fired a bullet that hit the ground beside Mr. Pinion’s feet. Thereafter, Mr. Tucker allegedly ran from the scene, entered a car, and rode away toward Lake Wales.

The only other witness to this event was a woman who lived in Mr. Pinion’s house. She is the girlfriend of his brother, with whom she has a child. She is also a convicted felon. She claimed that Mr. Tucker had a black .38 handgun, but she did not know if it was a revolver or an automatic. She explained that Mr. Tucker first pointed the gun at Mr. Pinion and then pointed it at the ground and fired. She claimed there was a big hole in the ground where the bullet entered. After Mr. Tucker fled the scene, she and Mr. Pinion entered their car and drove to Mr. Pinion’s mother’s house.

At 5:19 p.m., Mr. Pinion called the 911 operator from his mother’s house to report this event. The telephone call was recorded. As a result of this call, deputies were dispatched to the scene and they conducted a manhunt to locate Mr. Tucker. He was found as a passenger in a car with two other occupants. The arresting officers did not find a gun on Mr. Tucker and did not search the car. No gun was ever located. There was no gunshot residue or any other forensic evidence to support the allegation that Mr. Tucker had recently discharged a firearm. At the crime scene, the investigating deputy could not see a bullet hole in the ground, even though the woman who allegedly witnessed the event pointed to the location where she believed the bullet had entered the ground. No bullet or casing was located at the scene.

Mr. Tucker was initially charged on May 13, 2002, with carrying a concealed firearm and aggravated assault with a firearm. Mr. Tucker demanded a speedy trial, and the case was set for trial for the week of Monday, July 22, 2002. The State prepared an amended information on Wednesday, July 17, which was filed on Friday, July 19, adding a count for possession of a firearm by a convicted felon.

Jury selection began on Monday, July 22, 2002. At that point, the defense did not move to sever the charge of possession of a firearm by a convicted felon from the earlier charges. It is clear from the record that defense counsel made this decision as a tactical matter. The State had not listed a fingerprint expert as a witness for trial, and the defense hoped to prevent the State from introducing the prior convictions into evidence or from otherwise proving its case in light of this omission. See, e.g., Mason v. State, 853 So.2d 544 (Fla. 1st DCA 2003) (requiring judgment of acquittal for possession of firearm by convicted felon when only evidence showing defendant was convicted felon was certified copy of judgment containing defendant’s name).

On Thursday, July 25, after the jury was selected but before the panel was sworn, the trial court asked the attorneys how they intended to handle the proof regarding Mr. Tucker’s status as a convicted felon. Defense counsel indicated that Mr. Tucker would not stipulate or admit that he was a convicted felon. The State responded that it would introduce into evidence a judgment reflecting Mr. Tucker’s prior conviction and would arrange for a fingerprint examiner to testify to identify the fingerprints on a prior conviction as Mr. Tucker’s. The defense attorney objected on the ground that the State had never disclosed a fingerprint comparison expert as a witness in discovery. The trial judge held an immediate Richardson hearing, after which he offered to continue the case but indicated he was unwilling to deny the State the right to call a fingerprint expert to identify the prints on the prior conviction.

Following this ruling, defense counsel stated that, “given the predicament,” she and her client had decided to ask for a severance of the charge of felon in possession of a firearm and requested that they proceed to trial on the remaining charges for which Mr. Tucker had demanded a speedy trial. The State objected to this severance, and the trial court denied the motion.

During the trial, the State sought to introduce the recorded 911 telephone call through the testimony of the 911 operator. Mr. Tucker objected that the statements made by Mr. Pinion in the recorded call were hearsay. The State responded that the telephone call was an excited utterance. The trial court initially intended to admit the recorded call without listening to it, based upon the fact that the incident alleged was an aggravated assault that could produce excitement and that the call was made approximately twenty minutes after the incident. When the defense objected and suggested that the trial court take evidence on the issue of whether Mr. Pinion was actually excited when he made the call, the trial court refused to require evidence of Mr. Pinion’s state of mind at the time of the telephone call, but agreed to listen to the recording. Thereafter, the court announced:

Okay, I’ve listened to the tape and it sounds to me like he’s excited. I don’t know that that’s a requirement for me to make a determination or not, given the time frame that’s involved. And the fact that somebody would not be excited, I don’t think would necessarily disqualify this as an excited utterance, given the situation. Because someone may be excited and you can’t even tell.

The trial court accepted the recording into evidence, and the tape was played for the jury. In the recording, Mr. Pinion relates to the operator not only that Mr. Tucker fired a gun at him, but also his opinion as to why Mr. Tucker may have done this and other extraneous information.

The jury ultimately convicted Mr. Tucker as charged, and he was sentenced to concurrent sentences, the longest of which is a thirty-year term of imprisonment as a habitual offender. On appeal, Mr. Tucker raises four issues. We address the two dispositive issues.

I. SEVERANCE OF THE OFFENSE OF FELON IN POSSESSION OF A FIREARM

Mr. Tucker argues that the trial court erred when it refused to sever the offense of felon in possession of a firearm from the trial of his other offenses. We agree. Although a trial court has discretion to grant or deny a motion for severance, that discretion has been sharply curtailed when it concerns a request to sever a charge of felon in possession of a firearm. See Monson v. State, 627 So.2d 1301, 1302 (Fla. 1st DCA 1993); Craft v. State, 441 So.2d 704 (Fla. 2d DCA 1983).

Even if consolidation is the “most practical and efficient method of processing” a case, practicality and efficiency should not outweigh a defendant’s right to a fair trial. “The objective of fairly determining a defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency, and convenience.” Crum v. State, 398 So.2d 810, 811 (Fla.1981).

State v. Vazquez, 419 So.2d 1088, 1091 (Fla.1982) (footnote citation omitted).

In this case, both the State and the defense made some last-minute tactical decisions before the commencement of the trial. Mr. Tucker did not waive his right to request a severance in that process. He moved to sever the offenses within a week of the filing of the relevant charge and prior to the swearing of the jury. Even if this case were treated as one in which the trial had commenced, Florida Rule of Criminal Procedure 3.152(a)(2)(B) states that the trial court shall grant a severance of the charges during trial if the defendant consents and shows that the severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. Mr. Tucker satisfied that burden in this case.

Because the trial court abused its discretion by denying Mr. Tucker’s request to sever the felon in possession of a firearm charge from the charges for carrying a concealed firearm and aggravated assault with a firearm, we reverse Mr. Tucker’s convictions on the latter two charges. See Vazquez, 419 So.2d at 1091 (holding that proof of prior conviction, although unfairly prejudicial to other counts, was relevant, admissible, and not unfairly prejudicial for charge of felon in possession of firearm and thus that charge must be affirmed). On remand, the trial court must sever the offense for felon in possession of a firearm from the remaining offenses.

II. ADMITTING 911 TAPE AS EXCITED UTTERANCE

Mr. Tucker also argues that the trial court erred when it admitted the 911 recording as an excited utterance. We agree. Section 90.803(2), Florida Statutes (2002), permits a party to introduce into evidence an out-of-court statement admitted for the truth of that statement when it is an excited utterance “relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.” In order to establish the admissibility of an excited utterance, a party must first prove by the preponderance of the evidence that (1) there was an event startling enough to cause nervous excitement, (2) the statement must have been made before there was time to contrive or misrepresent, and (3) the statement must be made while the person is under the stress of excitement caused by the event. See State v. Jano, 524 So.2d 660, 661 (Fla.1988). The fact that a call is placed on a 911 line does not, standing alone, qualify it for admission under section 90.803. State v. Skolar, 692 So.2d 309, 311 (Fla. 5th DCA 1997).

Because of these three factual preconditions to the admission of an excited utterance, the procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party seeks to introduce an excited utterance into evidence over the objection of the opposing party. See Perry v. State, 675 So.2d 976, 979 (Fla. 4th DCA 1996) (citing Jano, 524 So.2d 660); see also Charles W. Ehrhardt, Florida Evidence § 105.1 at 38-41 (2004 ed.). Thus, when faced with an objection to an excited utterance, a trial court should conduct a hearing outside the presence of the jury to consider the necessary evidence and make the findings of fact essential to determine whether the statement constitutes an admissible excited utterance. This is not a situation of conditional relevance governed by section 90.105(2), Florida Statutes (2002), in which the evidence can be admitted based on prima facie proof of the condition. To admit an excited utterance, the trial court must conclude that the preponderance of the evidence supports the factual circumstances permitting the introduction of the statement as an excited utterance. Cf. McDole v. State, 283 So.2d 553, 554 (Fla.1973) (holding trial court considering admissibility of confession must first determine whether preponderance of evidence establishes that confession was voluntary); Am. Tobacco Co. v. State, 697 So.2d 1249 (Fla. 4th DCA 1997) (holding trial court must weigh evidence based upon preponderance of evidence standard to determine whether crime-fraud exception applies to communications otherwise protected by attorney-client privilege); see also Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding Federal Rule of Evidence 104(a), upon which section 90.105(1) is modeled, requires trial judge considering admissibility of statement of coconspirator to first determine whether proponent of evidence has proved by preponderance of evidence that statement was made by coconspirator during course of and in furtherance of conspiracy).

From the trial court’s ruling quoted earlier in this opinion, it is apparent that the trial court did not follow the procedures necessary to admit the 911 recording. The court did not consider the necessary evidence nor make the necessary findings. The trial court seemed to believe that any statement made within fifteen or twenty minutes of an alleged assault with a firearm was automatically admissible. In deciding whether a statement is an admissible excited utterance, however, the case law does not draw bright lines based on the time between the event and the statement. See Rogers v. State, 660 So.2d 237, 240 (Fla.1995). Instead, the process emphasizes a decision by the trial court that, under all the circumstances, it is more probable than not that there was a startling event, that the statement was made before there was time to contrive or misrepresent, and that the statement was made while the person was under the stress of excitement caused by the event.

In this case, of course, whether the assault with a firearm occurred or whether Mr. Pinion simply lied about the event to spite his former business partner is the critical issue both for a determination of guilt by the jury and for the trial court’s decision to admit this statement. Unless the trial court concludes that the preponderance of the evidence supports Mr. Pinion’s version of these events, there is nothing exciting that occurred prior to the utterance and the State has failed to prove the first factual element necessary to admit this recording. Cf. Bourjaily, 483 U.S. 171, 175-76, 107 S.Ct. 2775 (involving evidence in conspiracy case in which admissibility of evidence relies upon finding of conspiracy). Even if the trial court determines that the events occurred, to establish the second factual element it must decide that the time and the activities between the events and the telephone call were insufficient in light of Mr. Pinion’s emotional state to allow him to reflect on the situation and choose to make a conscious misrepresentation. See Rogers, 660 So.2d at 240; Hutchinson v. State, 882 So.2d 943 (Fla.2004). Finally, the trial court needed to find that the statements made on the 911 recording were actually made during the time of stress created by the earlier events. The trial court erred as a matter of law when it refused to hear evidence on these preliminary questions and failed to make the critical factual findings necessary to determine whether the evidence was admissible. Because this case was a swearing match between convicted felons and the tape may have buttressed Mr. Pinion’s testimony, we are unable to conclude beyond a reasonable doubt that the improper admission of this evidence did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Mr. Tucker argues that because the trial court’s assessment of whether Mr. Pinion was in an excited state at the time of the 911 call was based solely upon the audio recording of Mr. Pinion’s voice during that call, that assessment should be reviewed by this court de novo. This court could then hold, as a matter of law, that Mr. Pinion was not under the stress of any excitement and therefore the statements he made on the tape are inadmissible. We decline to so hold.

A trial court’s decision to admit evidence when the predicate facts and the rules of evidence create a basis for its admission is generally a matter of discretion. See Hinojosa v. State, 857 So.2d 308, 309 (Fla. 2d DCA 2003). There is support for the proposition that we can review more critically the contents of an audio or videotape because the trial court had “no special vantage point.” See Almeida v. State, 737 So.2d 520, 524 n. 9 (Fla.1999); Dooley v. State, 743 So.2d 65, 68 (Fla. 4th DCA 1999). We have listened to the 911 recording on numerous occasions and candidly have a difficult time hearing the excitement in Mr. Pinion’s voice that the trial court heard. Here, however, we do not have an equal vantage point with the trial court because Mr. Pinion testified at trial but has never personally appeared before our court. We agree with the trial court that “excitement” for purposes of an utterance is not a matter that is determined exclusively by tone of voice. Some people remain calm of voice when under stress; others can be excited of voice when fully capable of misrepresentation. See Hutchinson, 882 So.2d 943. In personally observ ing Mr. Pinion’s testimony at trial prior to the admission of- the 911 tape into evidence, the trial court may have been in a better position to assess whether Mr. Pinion’s recorded statements were made under the stress of excitement. See State v. Mallory, 670 So.2d 103 (Fla. 1st DCA 1996). Accordingly, although we reverse the trial court’s decision to admit that evidence without making the required factual findings, we do not foreclose the possibility that on remand the State may be able to present a preponderance of evidence to support the admissibility of some or all of the statements made during the 911 call as an excited utterance.

Reversed and remanded.

STRINGER, J., and ALLEN, MICHAEL E., Associate Judge, concur.

      . As improbable as it seems, this is Mr. Tucker's legal name.

      . This case was argued before the Second District Court of Appeal on February 20, 2004, as the first case to be argued in the William Reese Smith Courtroom at the Tampa Campus of the Stetson University College of Law. This courtroom is a shared facility, used both as a law school classroom and a public courtroom. Judge Mike Allen of the First District Court of Appeal, a Stetson graduate, was specially appointed by Chief Justice Anstead to serve on this panel in recognition of his role in establishing the public/private partnership between Stetson and the Second District that allowed for the construction of this unique courtroom.

      . See Richardson v. State, 246 So.2d 771 (Fla.1971).

      . One issue raised by Mr. Tucker in this appeal was the trial court’s ruling preventing his attorney from mentioning in closing arguments the State's failure to produce the results of a gunshot residue test performed on Mr. Tucker after his arrest. Although this issue is not dispositive to this appeal, we note that generally defense counsel should be permitted to assert in closing arguments that a reasonable doubt may be based upon a lack of specific evidence. See Starr v. State, 518 So.2d 1389, 1391-92 (Fla. 4th DCA 1988).

      . On appeal the State has suggested that the statement could have been admitted as a prior consistent statement under section 90.801(2)(b), Florida Statutes (2002) (stating prior consistent statement is not hearsay if declarant testifies at trial and is subject to cross-examination and statement is offered to rebut charge of improper influence, motive, or recent fabrication). That argument was not made in the trial court, and this theory of admissibility was not developed in the record. Accordingly, we do not address it.


author: DAVIS, Judge.

text:
    Jean SHERRY, Appellant, v. REGENCY INSURANCE COMPANY a/s/f Thomas and Bobbie Riginos and Thomas and Bobbie Riginos, individually, Appellees.
    No. 2D03-2038.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellant.
    Wayne C. Mineo of Mineo & Associates, P.A., Safety Harbor; and Stephen 0. Cole of McFarlane Ferguson & McMullen, Clearwater, for Appellees.
   DAVIS, Judge.

Jean Sherry challenges the summary judgments entered against her for damages caused when a washing machine hose in her condominium burst, flooding her unit and the condominium unit of Thomas and Bobby Riginos, which was located below Sherry’s unit. We reverse and remand for further proceedings.

At the time of the incident, Sherry had lived in her condominium unit for approximately six years and had owned the washing machine for thirteen years. The washing machine hose burst while both Sherry and the Riginoses were on extended trips out of town. Sherry acknowledged that she did not turn the water off before she left town.

Although the Riginoses’ insurer, Regency Insurance Company (“Regency”), paid policy limits on the Riginoses’ claim, the Riginoses claimed below that their damages exceeded their coverage. Therefore, the complaint filed against Sherry was filed on behalf of both Regency as the subrogee of the Riginoses and the Riginos-es individually (collectively referred to here as “Appellees”). The complaint alleged that Sherry was liable under one or more of four theories: strict liability, negligence for leaving the water on while away from home, negligence for failing to properly maintain the washing machine hose, and trespass by permitting water to enter the Riginoses’ condominium.

Both Sherry and the Riginoses moved for summary judgment, and after hearing the arguments of counsel, the trial judge concluded:

The product of the loss in this case was the water was going through your client’s hose and she had control of that and, therefore, it seems to me she has to bear the responsibility for losses that were, you know, attended [sic] to that— to that volume of water. I’m not sure whether you want to call it negligence or res ipsa loquitur or trespass. I think that you can call it all of those things or none of them or any of them. But the fact remains that as between these two parties, who should have to bear the risk of the damage that occurred to the plaintiffs’ unit? And, obviously, it’s not the plaintiff....
In our society, as between two innocent parties — and I believe she is perfectly innocent, she sure didn’t intend for this to happen — who should bear the risk of loss? And, obviously, first of all, she should bear the risk of loss because, in all likelihood, she is not completely innocent in terms of the fact that there were matters under her control that would have prevented this and some indication that there was some warning through the manuals that this was something that should be done. And I can appreciate that there are other reasons why a hose can fail, but just suggesting that there are other reasons without having any evidence that there was a reason other than the fact that this has been on there 13 years and it had just gotten old and had used up its useful life, I don’t think is sufficient. So I’m going to grant the summary judgment in [the plaintiffs’] favor.

After entering summary judgment, the trial court proceeded to the issue of damages and entered two final judgments: one in favor of Regency for $31,096.20 and one in favor of the Riginoses for $45,155.59. It is these two final judgments that Sherry now appeals.

We give de novo review to a trial court order granting a motion for summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). A summary judgment is properly entered when the record discloses (1) that no genuine issues of material fact remain, and (2) that the movant is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Neither requirement has been demonstrated here.

We turn first to the theory that Sherry was strictly liable for the damage. Although it is not entirely clear from the trial court’s comments whether the court believed that strict liability applied, the law is clear that strict liability does not apply to damages resulting from water in household pipes. See Cities Serv. Co. v. State, 312 So.2d 799, 800 (Fla. 2d DCA 1975) (citing with approval the list contained in W. Prosser, The Law of Torts, § 78 (4th ed.1971), which excludes from strict liability those claims arising from water in household pipes). Therefore, to the extent that the trial court concluded that Appellees were entitled to judgment as a matter of law based on a strict liability theory, that determination was in error.

However, neither was summary judgment properly entered based on Sherry’s alleged negligence in leaving the water on or in failing to properly maintain the washing machine hose. Noting the age of the hose and the suggestions contained in the washing machine manuals-submitted below by Appellees, the trial court ruled that since there was no evidence that the hose would burst for any other reason, Sherry was negligent. The judge then remarked, however, that he was not sure if this was proven negligence, inferred negligence by the application of res ipsa loquitur, or liability based on trespass. Our review of the record reveals that genuine issues of material fact remained on one of these theories and that Appellees were not entitled to judgment as a matter of law on the remaining two issues, thus rendering summary judgment improper as to all three theories.

As to proven negligence, the question of whether Sherry had a duty to turn off the water based on directions contained in the washing machine manuals was a matter for the finder of fact since Sherry claimed not to have ever possessed such manuals. Similarly, whether Sherry failed to properly maintain the hose was an issue for the finder of fact that was not resolved on the record. Accordingly, summary judgment was improper based on the proven negligence of Sherry.

The entry of summary judgment was also improper based on the theory of res ipsa loquitur because even if the theory applied here, which the trial court did not decide, the doctrine of res ipsa loquitur creates only a rebuttable inference of negligence; it is not sufficient in itself to support a summary judgment. See Magic Oriental Rugs, Inc. v. Komorowski, 618 So.2d 322 (Fla. 3d DCA 1993).

Finally, Appellees were not entitled to judgment as a matter of law on the basis of trespass because trespass does not apply absent a showing of strict liability or negligence. The Restatement (Second) of Torts section 166 (1965) states:

Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another ... does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing ... in whose security the possessor has a legally protected interest.

Thus, in the absence of strict liability or negligence, neither of which are present here, summary judgment could not be entered for trespass.

Because the record does not demonstrate that Appellees were entitled to judgment as a matter of law and because genuine issues of material fact remain, the trial court erred in entering summary judgment in favor of Appellees. Accordingly, we reverse.

Reversed and remanded for further proceedings.

NORTHCUTT and STRINGER, JJ„ Concur.


author: KELLY, Judge.

text:
    Joel PATTERSON, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2D03-4092.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Rehearing Denied Oct. 15, 2004.

      Raymond O. Bodiford and Bryan W. Crews of Crews & Bodiford, P.A., Orlando, for Appellant.
    Deana M. Sisk and Ronald L. Arend of Ronald L. Arend, P.A., Fort Myers, for Appellee.
   KELLY, Judge.

Joel Patterson sued Allstate Insurance Company for negligent failure to procure uninsured/underinsured motorist coverage. The case was referred to nonbinding arbitration, and the arbitrator issued a decision in favor of Allstate. Twenty days passed, and neither party requested a trial de novo. Subsequently, Allstate notified the court of that fact. In response, Patterson filed a notice of voluntary dismissal without prejudice, which Allstate countered with a motion for entry of a final judgment. Ultimately, the trial court entered a judgment in favor of Allstate from which Patterson has appealed. Patterson argues that because he had dismissed his action, the trial court did not have jurisdiction to enter the final judgment. Allstate argues that Patterson’s notice of voluntary dismissal was untimely and therefore did not effect a dismissal of the action. We conclude that a voluntary dismissal filed after a nonbinding arbitration has become final is untimely, and accordingly, the trial court properly entered judgment in favor of Allstate.

At common law, a plaintiff in an action at law could enter a voluntary non-suit as a matter of right at any stage of the proceedings. Nat’l Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525 (1893). This right continued to the last moment of trial, even until after the verdict was rendered, or where the case was tried before the court, until the court had pronounced its decision. Id. at 526. In equitable actions, a plaintiffs right to take a voluntary dismissal was more circumscribed. Smith v. Milham, 94 Fla. 1159, 115 So. 532 (1927); Da Costa v. Dibble, 40 Fla. 418, 24 So. 911 (1898); Ormond Beach Assocs., Ltd. v. Citation Mortgage, Ltd., 835 So.2d 292 (Fla. 5th DCA 2002). A plaintiff was entitled to a voluntary dismissal as a matter of right unless the defendant could demonstrate “serious prejudice, such as where he is entitled to receive affirmative relief or a hearing and disposition of the case on the merits, has acquired some substantial rights in the cause, or where dismissal is inequitable.” Ormond Beach, 885 So.2d at 295. Over time, the stage of the proceedings at which a plaintiff could take a voluntary dismissal became governed by statute and the rules of civil procedure, many of which eliminated or severely limited the right to a dismissal. Freeman v. Mintz, 528 So.2d 606 (Fla. 3d DCA 1988).

In Florida, the right has been limited by Florida Rule of Civil Procedure 1.420(a) which gives plaintiffs the right to voluntarily dismiss their action at any time “before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court.” Until the line drawn by this rule is crossed, the plaintiff s right to a voluntary dismissal is “absolute.” Fears v. Lunsford, 314 So.2d 578 (Fla.1975) (allowing a voluntary dismissal when the motion was made after the trial court granted the defendant’s motion for a directed verdict but before the directed verdict was announced to the jury); see also Ambory v. Ambory, 442 So.2d 1087 (Fla. 2d DCA 1983) (approving a voluntary dismissal when the motion was made after the trial court orally granted the defendant’s motion to dismiss with prejudice but before the court entered a written order); Romar Int’l, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346 (Fla. 5th DCA 1982) (approving a voluntary dismissal after the defendant moved for sanctions pursuant to Florida Rule of Civil Procedure 1.310(g)(1) because the plaintiff noticed a deposition and failed to attend); Bevan v. D'Alessandro, 395 So.2d 1285 (Fla. 2d DCA 1981) (approving a voluntary dismissal after the defendant moved to dismiss for failure to prosecute and the time had lapsed for the plaintiff to show cause why the action should not be dismissed).

Nevertheless, several cases have recognized exceptions to this “absolute” right to a voluntary dismissal where there is fraud, Bevan, 395 So.2d at 1286; Romar, 420 So.2d at 347, where the defendant can demonstrate the common law exception to the right, Ormond Beach, 835 So.2d at 295, or where the stage at which the dismissal is taken is deemed the equivalent of a summary judgment. Visoly v. Bodek, 602 So.2d 979 (Fla. 3d DCA 1992). In this ease, the issue is whether a plaintiff may take a voluntary dismissal after a nonbinding arbitration decision has become final. Because rule 1.420(a) does not address this specific situation and therefore does not preclude a voluntary dismissal, we must decide whether one of the exceptions developed in the case law applies.

To answer that question we have looked at how the failure to timely request a trial de novo affects the rights of the parties and the power of the trial court.

Section 44.103(5), Florida Statutes (2003), states in pertinent part:

If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party.

This court has recognized that “if no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise.” Bacon Family Partners, L.P. v. Apollo Condo. Ass’n, 852 So.2d 882, 888 (Fla. 2d DCA 2003). Thus, but for the voluntary dismissal, Allstate would be entitled to a judgment in its favor that would preclude further litigation of the same subject matter. Accordingly, we conclude that this case falls within the exception recognized in Ormond Beach where the parties have acquired “substantial rights in the cause” and are entitled to a “disposition of the case on the merits.” See Ormond Beach, 835 So.2d at 295. Therefore, Patterson’s notice of voluntary dismissal was untimely and did not operate to dismiss his action. Accordingly, the trial court still had jurisdiction and properly entered a judgment in favor of Allstate.

Affirmed.

WHATLEY and WALLACE, JJ„ Concur.


text:
    Kelly A. LYN, Appellant, v. Mark LYN, Appellee.
    No. 2D03-4393.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Rehearing Denied Aug. 12, 2004.

      Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    Joseph C. Hood, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Kelly A. Lyn appeals an order denying her request for attorneys’ fees, which she incurred in a dissolution of marriage action against Mark Lyn. The trial court denied the motion because the Wife failed to file a motion for attorneys’ fees within thirty days after the entry of the final judgment as required by Florida Rule of Civil Procedure 1.525. Although the result may seem harsh, we affirm. If the bright line established by rule 1.525 needs refinement, any changes should be made in the text of the rule. If appellate courts were to create a series of decisions relieving parties of the occasional harsh results created by this rule, we would recreate the type of unpredictability that necessitated the adoption of rule 1.525.

This dissolution of marriage action began in 2002, more than a year after the effective date of rule 1.525. See Amendments to the Florida Rules of Civil Procedure, 773 So.2d 1098, 1099 (Fla.2000) (establishing January 1, 2001, as effective date of rule). In April 2002, the parties entered into a partial marital settlement agreement resolving all of the custody issues regarding their two children. The remaining issues were scheduled for a final hearing on December 5, 2002. Prior to this hearing, on November 26, 2002, the Wife served a motion for attorneys’ fees on the Husband. The motion tracked the language of section 61.16, Florida Statutes (2002), but made no reference to that statute or to rule 1.525. The Husband also filed motions prior to the final hearing seeking clarification or modification of some of the provisions of the partial marital settlement agreement. It appears that the parties intended the trial court to address these issues at the final hearing.

The parties were able to resolve the remaining issues between them at some time prior to the final hearing. Thus, on December 5, 2002, the circuit court entered a final judgment of dissolution of marriage based upon the parties’ stipulations. The final judgment reserved jurisdiction to consider the Wife’s request for attorneys’ fees. It also “reserved jurisdiction” on one of the Husband’s requests to clarify or modify the partial marital settlement agreement regarding custody, “which was denied without prejudice to allow him to reassert the motion when the issues contained therein become ripe.”

On December 26, 2002, the Wife filed a notice of hearing scheduling the issue of “attorneys’ fees,” for a hearing on February 19, 2003, before the trial judge. The notice of hearing did not elaborate nor detail the grounds for the request. The case was then reassigned to the general master for resolution of this issue. Accordingly, the hearing before the trial judge was cancelled and the parties participated in discovery related to the request for attorneys’ fees. On February 4, 2003, the Wife’s attorney filed an affidavit in support of the request for fees outlining the fees and costs incurred by the Wife during the dissolution proceedings. A new hearing was ultimately scheduled before the general master for April 8, 2003. On April 4, 2003, the Husband filed his motion to strike the request for attorneys’ fees, arguing that the Wife had failed to comply with rule 1.525 by failing to file a written motion for attorneys’ fees within thirty days of the final judgment.

After the hearing on April 8, the general master filed a report and recommendation granting the Husband’s motion to strike the Wife’s request for attorneys’ fees. The Wife then filed a motion pursuant to Florida Rule of Civil Procedure 1.090(b) to enlarge the time for filing the motion for attorneys’ fees. The trial court adopted the general master’s report and recommendation and granted the Husband’s motion to strike the claim for attorneys’ fees, but permitted the Wife to pursue the motion to enlarge time. Thereafter, the circuit court denied the Wife’s request for enlargement of time.

This court has previously issued opinions enforcing the bright-line rule set forth in rule 1.525, which requires that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after fifing of the judgment.” See Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004); Gulf Landings Ass’n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002). In each of these cases and in the present case, it was no surprise to the opposing party that the movant was seeking attorneys’ fees, either because the movant had filed a request for fees prior to judgment, the judgment had reserved jurisdiction to award fees, or the parties had engaged in postjudgment discovery or correspondence regarding the request for fees. Nevertheless, the failure to comply with the thirty-day time limit in rule 1.525 barred each claim for fees.

These results may seem inequitable under the specific circumstances of each case. They are undoubtedly examples of the type of “growing pains” that occur whenever attorneys do not immediately adjust their practices to a significant change in procedural law. As tempted as we are to relieve these pains in individual cases, they cannot be relieved at the expense of the plain language of the rule and the rule’s intent to creaté predictability and consistency in postjudgment requests for attorneys’ fees. See, e.g., Diaz, 832 So.2d at 201. We therefore affirm the orders on appeal.

Rule 1.525 applies to dissolution of marriage actions by virtue of Florida Family Law Rule of Procedure 12.020, which provides that the rules of civil procedure apply in all family law matters except as otherwise provided in the family law rules or when the family law rules conflict with the rules of civil procedure. See Mook, 873 So.2d 363; Wentworth v. Johnson, 845 So.2d 296, 298 (Fla. 5th DCA 2003). But see Gosselin v. Gosselin, 869 So.2d 667 (Fla. 4th DCA 2004) (holding that rule 1.525 does not apply to post-decretal orders in family law cases). To avoid the strict application of the rule in this case, the Wife presents three separate arguments.

First, the Wife argues that the dissolution judgment was not “final” and therefore the time period in rule 1.525 has not yet begun to run. We disagree. The judgment completed all judicial labor regarding the dissolution of marriage action. The judgment reserved only the ancillary issues of attorneys’ fees and the Husband’s request to modify one shared parenting provision in the parties’ partial settlement agreement that the court specifically found was not ripe for review until a dispute arose regarding the provision. These issues did not affect the finality of the judgment. See McGurn v. Scott, 596 So.2d 1042, 1044 (Fla.1992).

Second, the Wife argues that the motion for attorneys’ fees that she served on November 26, 2002, and filed on December 3, 2002, should be treated as a premature, but timely, postjudgment motion for attorneys’ fees. Rule 1.525 specifically requires that the motion for fees and costs be served “within 30 days after filing of the judgment.” Compare Fla. R. Civ. P. 1.530(b) (providing motion for new trial or for rehearing “shall be served not later than 10 days after the return of the verdict ... or the date of filing of the judgment”). In light of this language, we decline to create the ambiguity that would undoubtedly flow from the concept of a premature postjudgment motion.

Third, the Wife argues that the time for filing her postjudgment motion for attorneys’ fees was automatically extended by the provision in the final judgment reserving jurisdiction to resolve this issue. See Fisher v. John Carter & Assocs., 864 So.2d 493 (Fla. 4th DCA 2004) (citing Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997)). This court has rejected the argument that a provision in a final judgment reserving jurisdiction to address attorneys’ fees acts as an automatic extension of time under rule 1.090(b) to file a motion for fees. See Mook, 873 So.2d 363; Gulf Landings Ass’n, 845 So.2d 344. Instead, this court has aligned itself with the Fifth District’s decision in Wentworth, 845 So.2d 296 (distinguishing Gulliver Academy, 694 So.2d 675, in light of supreme court’s enactment of rule 1.525). Mook, 873 So.2d 363. Indeed, if a provision in a final judgment reserving jurisdiction to determine the issue of attorneys’ fees were to act as an automatic but indefinite extension of time for filing a written motion, courts would again be faced with determining on a case-by-case basis what length of time thereafter was reasonable for filing a motion for fees, or whether motions for fees filed long after entry of judgment were unreasonably delayed and should be denied. See, e.g., Shipley v. Belleair Group, Inc., 759 So.2d 28, 30 (Fla. 2d DCA 2000). This would undermine the intent of rule 1.525. We therefore affirm the order striking the Wife’s request for attorneys’ fees as untimely, but certify conflict with Fisher, 864 So.2d 493.

Although we decline to create exceptions to the procedure announced in rule 1.525, we recognize that these procedures can be overridden by a stipulation between the parties or by an order extending the time for filing a motion pursuant to rule 1.090(b). See Wentworth, 845 So.2d at 299 (citing Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003)). Here, the Wife filed a motion pursuant to rule 1.090(b) to enlarge the time for filing her motion for attorneys’ fees, but the motion was filed after the thirty-day time limit in rule 1.525 had expired. Rule 1.090(b) permits an enlargement of time under these circumstances when the “failure to act was the result of excusable neglect.” We find no abuse of discretion in the trial court’s denial of the Wife’s motion to extend the time in this case.

In Carter, 840 So.2d 1153, the Fifth District interpreted “excusable neglect” in this context similarly to the interpretation given the phrase in opinions interpreting Florida Rule of Civil Procedure 1.540. Id. at 1156-57. In general, excusable neglect cannot be based upon an attorney’s misunderstanding or ignorance of the law, but instead must relate to a breakdown in mechanical or operational practices or procedures within the attorney’s office. Id. at 1158 n. 6. Here, the Wife’s oversight was simply a matter of her counsel’s misunderstanding or lack of knowledge of the requirements of rule 1.525. Therefore, the trial court did not abuse its discretion in denying the Wife’s motion to extend time to file her motion for attorneys’ fees.

Finally, the Wife’s attorney has filed a motion for appellate attorneys’ fees pursuant to section 61.16 within this proceeding. The motion asserts the Wife’s “need” for those fees and the husband’s “ability to pay” the fees. Nevertheless, the Wife has filed an affidavit in this court stating that she agreed,to pursue the appeal only if she would not be required to pay for it. It is undisputed that her trial counsel agreed to waive payment for this appeal if the Husband was not ordered to pay these fees. This appeal is not truly a pro bono appeal to achieve a result benefit-ting an indigent client, but rather an effort by the Wife’s attorneys to remedy a procedural error by trial counsel. It is clear that this appeal has been prosecuted by the Wife’s counsel in a good faith effort to test an issue of law, but section 61.16 does not authorize this court to order the Husband to pay the Wife’s attorneys’ fees under these circumstances.

Affirmed, conflict certified.

FULMER and COVINGTON, JJ., Concur.

      . The Wife's appellate counsel was not trial counsel in this case.

      . The Family Law Rules Committee of The Florida Bar has apparently filed a petition with the Florida Supreme Court requesting a new rule 12.525 for the family law rules which would provide: "Florida Rule of Civil Procedure 1.525 shall not apply in proceedings governed by these rules.” See Jeffrey Ira Jacobs, Annual Report, Committees of the Florida Bar: Family Law Rules, Fla. B.J., June 2004, at 40, 52-53. It appears no action has yet been taken on this proposal. We take no position on whether dissolution proceedings need to be exempt from this rule or whether some modified rule should exist within the family law rules.

      . We note that rule 1.525 refers to a "judgment” and not a "final judgment” or a "final order.” It is not entirely clear that these terms are interchangeable in the context of the rule. See Gosselin, 869 So.2d at 669. Here, the judgment was final. Even if it were not, the Wife sought fees incurred in obtaining this judgment and one might expect that she should therefore file her motion for fees within thirty days of the entry of this judgment.