DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD BAROFF,
Appellant,
v.
RACHEL BAROFF,
Appellee.
No. 4D22-772
[November 2, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura C. Burkhart, Judge; L.T. Case No.
502019DR007999.
Richard Baroff, Parkland, pro se.
No appearance for appellee.
GERBER, J.
In this post-marriage dissolution proceeding, the pro se former
husband appeals from the circuit court’s February 23, 2022 order denying
his Florida Family Law Rule of Procedure 12.540 motion to vacate the
court’s December 30, 2021 order, which had: (1) denied as moot the
former husband’s motion to determine the valuation date for the parties’
retirement accounts, based on the court’s November 7, 2021 order which
already had determined the retirement accounts’ valuation date; and (2)
simultaneously denied the former husband’s motion to vacate the
November 7, 2021 order which had determined the retirement accounts’
valuation date.
We dismiss, for lack of jurisdiction, that portion of the appeal
challenging the December 30, 2021 order denying the husband’s first rule
12.540(b) motion, as untimely. As our sister court held in Parkhomchuck
v. AIY, Inc., 338 So. 3d 397 (Fla. 3d DCA 2022):
[W]e lack appellate jurisdiction to review the [circuit court’s]
order[] denying the appellants’ first rule 1.540 motion because
the notice of appeal was not filed within thirty days of the
orders’ rendition. See Fla. R. App. P. 9.130(a)(5) (“Orders
entered on an authorized and timely motion for relief from
judgment are reviewable by the method prescribed by this
rule.”); Fla. R. App. P. 9.130(b) (“Jurisdiction of the court
under subdivisions (a)(3)-(a)(5) of this rule shall be invoked by
filing a notice ... with the clerk of the lower tribunal within 30
days of rendition of the order to be reviewed.”); Albano v.
Albano, 579 So. 2d 757, 758 (Fla. 5th DCA 1991).
Id. at 400.
To the extent the former husband challenges the circuit court’s
February 23, 2022 order denying the former husband’s second—i.e.,
successive—rule 12.540 motion to vacate, we must affirm. As explained
in Parkhomchuck:
[I]f the appellant[] w[as] dissatisfied with the [circuit] court’s
ruling on [his] first rule 1.540(b) motion, “[his] remedy was by
appeal, not be [sic] filing successive motions to vacate
containing the same general grounds or even new ones, which
could have been raised in the first motion.” Intercoastal
Marina Towers, Inc. v. Suburban Bank, 506 So. 2d 1177, 1179
(Fla. 4th DCA 1987); Purcell v. Deli Man, Inc., 411 So. 2d 378,
379 (Fla. 4th DCA 1982) (“Had the circuit court denied the
second motion to vacate, its action would have been affirmed
because the grounds raised in the second motion were raised
or could have been raised in the first motion [to vacate].”); see
Cordero v. Washington Mut. Bank, 241 So. 3d 967, 968 (Fla.
3d DCA 2018) (“An untimely appeal of a prior order cannot be
revived by obtaining a new order to the same effect as the
original order and then filing a notice of appeal within thirty
days of the most recent order.”).
338 So. 3d at 400.
Dismissed in part, affirmed in part.
MAY and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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