Robert DiGiorgio v. Zandra DiGiorgio

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 5D2022-2406 LT Case No. 2019-DR-000640 _____________________________

ROBERT DIGIORGIO,

Appellant,

v.

ZANDA DIGIORGIO,

Appellee. _____________________________

On appeal from the Circuit Court for Hernando County. Thomas R. Eineman, Judge.

Robert DiGiorgio, Homosassa, pro se. Zanda DiGiorgio, Spring Hill, pro se.

June 28, 2024

PER CURIAM.

Robert DiGiorgio (“Former Husband”) appeals from an amended final judgment of dissolution of marriage entered on November 3, 2022. The amended final judgment is affirmed.

However, pending resolution of this appeal, the trial court entered a parenting plan as an exhibit to the amended final judgment. While it appears that the trial court had intended to

attach the parenting plan to the amended final judgment, it did not do so prior to Former Husband filing his notice of appeal. As the trial court’s action had the effect of modifying the substance of the amended final judgment under review, the trial court was without jurisdiction to take that action. See, e.g., Duncan v. Duncan, 598 So. 2d 205, 207 (Fla. 2d DCA 1992) (“[A] trial court does not have jurisdiction to enter an order which modifies the substance of a final judgment after a party files a notice of appeal.”); Schultz v. Schickedanz, 884 So. 2d 422, 424 (Fla. 4th DCA 2004) (“[A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” (alteration in original) (quoting Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135, 1138 (Fla. 2d DCA 1979))).

Accordingly, we affirm the trial court’s amended final judgment of dissolution of marriage but remand for vacatur of the trial court’s order entering the parenting plan as an exhibit to the amended final judgment of dissolution of marriage. Our remand for vacatur is not a comment on the propriety of the substance of the parenting plan and is without prejudice to any party seeking appropriate relief, if any, or the trial court taking further action as authorized by the law, following the issuance of the mandate in this appeal.

AFFIRMED; REMANDED with instructions. WALLIS, SOUD, and KILBANE, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________