November 24, 2010

Appeal Dismissed in Favor of Client Where Unauthorized Under Appellate Rules

The issue was whether a trial court’s order denying exceptions to a general magistrate’s report and affirming the report, with several exceptions, was appealable as a final order or an appealable non-final order.

We represented the Father of an infant child in a contentious custody dispute over timesharing and other issues. A general magistrate entered a report with recommendations regarding a time-sharing schedule, child support, and daycare for the child.  The general magistrate also found that the Father had been involuntarily absent from the child’s life due to the Mother’s actions and her failure to facilitate a relationship between the Father and child.  The trial court judge affirmed and implemented the magistrate’s report with several exceptions, and the Mother appealed to the Fourth District Court of Appeal.

We filed a motion to dismiss the appeal, arguing (1) that the trial court’s order was neither a final order nor an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), and (2) that the appeal should be dismissed based on the Mother’s failure to file an Initial Brief within the time frame required by Florida Rule of Appellate Procedure 9.130(e).  The court of appeals granted our motion, and we succeeded in obtaining dismissal of the Mother’s appeal for our client.