Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2416 _____________________________ RICHARD SCHMIDT, Appellant, v. LIZA NIPPER, Appellee. _____________________________ On appeal from the Circuit Court for Baker County. Gloria R. Walker, Judge. January 21, 2020 WOLF, J. This is an appeal from a final order denying a motion for relief from judgment. Appellant raises several issues on appeal. We determine that the motion was untimely, that due process rights were not implicated, and no new factual circumstances were presented that would justify overturning the final judgment. We therefore affirm. FACTS In December 2016, the minor child, M.C.S., was removed from the custody of her mother, Liza Nipper, in dependency case 2016- DP-0137, and eventually placed in the custody of her legal father, Jefferson Nipper. Mr. Nipper was married to Ms. Nipper at the time of M.C.S.’s birth and continued to be married to Ms. Nipper throughout the proceedings below. In December 2016, the appellant, Richard S. Schmidt, filed a petition to determine paternity in case 2016-DR-0425, alleging that he is M.C.S.’s biological father. He asserted that her biological mother, Ms. Nipper, was “homeless, jobless, and on methamphetamine.” He sought sole custody of M.C.S. with supervised visitation for her mother. On April 6, 2017, the trial court denied the petition after a hearing. The court found that M.C.S. was born during Ms. Nipper’s marriage to Mr. Nipper and Mr. Nipper had asserted his legal rights. Therefore, the court determined that the appellant was foreclosed from asserting his rights to the child. On January 31, 2019, more than one year after the original judgment, appellant filed a motion to vacate the April 6, 2017, order denying his petition to determine paternity pursuant to Florida Family Law Rule of Procedure 12.540 and Florida Rule of Civil Procedure 1.540. He argued that the trial court improperly disposed of his petition to determine paternity without hearing from Ms. Nipper or M.C.S., considering the child’s best interests, appointing a guardian ad litem, or taking testimony regarding the appellant’s prior substantial relationship with M.C.S. He claimed that extrinsic fraud occurred because the Department of Children and Families (DCF) prevented him from participating in the dependency case. He further asserted that in the paternity case, extrinsic fraud occurred and/or the order is void because he was not given the opportunity to establish standing and his due process rights were violated. Ms. Nipper filed an answer indicating that she supported the motion, and it is in M.C.S.’s best interest to be reunited with the appellant. Mr. Nipper filed a response to the appellant’s motion, arguing that any motion to vacate based on extrinsic fraud would be time- barred. Mr. Nipper noted that the appellant was present for the hearing in the paternity case and both the appellant and Ms. Nipper testified. He claimed that if there was any failure to address the best interests of the child or appoint a guardian ad litem to represent the child’s interests, it would only render the order voidable, not void. He alleged that no transcript existed to 2 support the appellant’s claims. Lastly, he noted that the law permitting an order to be set aside when it is no longer equitable only applies when there is a change in the factual circumstances. A hearing was held on the motion, during which the appellant reiterated his arguments that extrinsic fraud occurred in the dependency case. He also argued that the order in the paternity case was entered in violation of due process because the trial court failed to consider the mother’s position or the best interests of the child, failed to appoint a guardian ad litem, and failed to allow the appellant to establish standing. Additionally, he reasserted his argument that the judgment is no longer equitable. When the trial court asked the appellant to explain why he was so late in challenging the order, he asserted that he could raise a claim under rule 1.540(b)(4) or (5) at any time. The appellant’s attorney clarified that the passage of time was due to his difficulty in finding an attorney to represent him. Mr. Nipper responded that the motion was time-barred and the paternity order was not void because the appellant had notice and an opportunity to be heard. He reiterated that there was no transcript provided to support the appellant’s claims, and therefore the trial court had inadequate information to make alternate factual findings or conclude that the previous judge misconstrued the law. He also argued that the paternity order was at best voidable, and therefore it should have been challenged in a motion for rehearing or on appeal. Lastly, he reiterated that 1.540(b)(5) only applies where there is a change in factual circumstances. The trial court expressed concern as to the timing of the motion to vacate, noting that the appellant could have filed a motion for rehearing, an appeal, or a timely motion to vacate in connection with the paternity order. The court found that there was no extrinsic fraud and the paternity case was correctly decided in favor of the legal father. The court determined that the dependency case had nothing to do with the paternity case. The court concluded that in the absence of a timely motion to vacate, it had no ability to disturb the order in the paternity case. The trial court also found that the appellant’s due process rights were not violated. 3 On June 10, 2019, the trial court entered the order denying the motion to vacate. The order reiterated the trial court’s conclusions that the motion was untimely, the dependency case was irrelevant, the appellant received due process in the paternity case, and the order denying the petition to determine paternity was correctly decided. This timely appeal follows. ANALYSIS The first issue we address is whether the trial court erred in denying the appellant’s motion to vacate the April 6, 2017, paternity order on the basis that it was void due to the violation of his due process rights. We review the question of whether a judgment is void de novo. Vercosa v. Fields, 174 So. 3d 550, 552 (Fla. 4th DCA 2015). Under rules 12.540(b)(4) and 1.540(b)(4), the trial court may grant relief from a void judgment at any time. See Estrada v. Estrada, 274 So. 3d 426, 430 (Fla. 3d DCA 2019). However, where the judgment is only voidable and not void, it cannot be attacked at any time, but is generally only subject to attack via a motion for rehearing, an appeal, or through a collateral attack under limited circumstances. Tannenbaum v. Shea, 133 So. 3d 1056, 1060-61 (Fla. 4th DCA 2014). If challenged under rule 1.540(b) or 12.540(b), voidable judgments must be attacked no more than one year after the entry of the judgment. See Estrada, 274 So. 3d at 430. “Generally, a judgment is void if: (1) the trial court lacks subject matter jurisdiction; (2) the trial court lacks personal jurisdiction over the party; or (3) if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard.” Nationstar Mortgage, LLC, v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017). “Where, however, the ‘court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities, or wrongdoing in proceedings, short of illegal deprivation of opportunity to be heard, will not render the judgment void.’” Tannenbaum, 133 So. 3d at 1061 (quoting Krueger v. Ponton, 6 So. 3d 1258, 1261 (Fla. 5th DCA 2009)). Courts have found a due process violation that rises to the level of an illegal deprivation of the opportunity to be heard when the trial court heard matters beyond the scope of the matters 4 noticed, Rodriguez v. Santana, 76 So. 3d 1035, 1037 (Fla. 4th DCA 2011); when summary judgment was granted without a hearing, Richard v. Bank of America, N.A., 258 So. 3d 485, 488 (Fla. 4th DCA 2018); and when the trial court failed to allow a necessary party to intervene, Goodman v. Goodman, 126 So. 3d 310, 314 (Fla. 3d DCA 2013). Here, the appellant claims that not only his due process rights were violated, but also those of the mother and child. As an initial matter, Mr. Nipper correctly observed in his answer brief that any violation of Ms. Nipper’s due process rights is irrelevant to the appellant’s appeal. See Drouin v. Stuber, 168 So. 3d 305, 307 (Fla. 4th DCA 2015). With regard to M.C.S., there is case law indicating that it is reversible error to fail to appoint a guardian ad litem to represent a minor child’s interests when the issue of paternity has been raised. See Alchin v. Alchin, 667 So. 2d 477, 479 (Fla. 2d DCA 1996); White v. White, 661 So. 2d 940, 940-41 (Fla. 5th DCA 1995). However, the failure to appoint a guardian ad litem renders a judgment voidable, not void. See Brown v. Ripley, 119 So. 2d 712, 715 (Fla. 1st DCA 1960); see also Lopez v. Variety Children’s Hosp., 600 So. 2d 506, 506 (Fla. 3d DCA 1992). As to the appellant’s arguments concerning his own due process rights, they revolve around the trial court’s failure to consider the proper evidence and standards to resolve his paternity case. For instance, he asserts that the trial court did not give him an opportunity to prove standing. Standing to bring a paternity suit exists where the natural father has manifested a substantial and continuing concern for the welfare of his child. Kendrick v. Everheart, 390 So. 2d 53, 61 (Fla. 1980). Additionally, the appellant argues that he was prevented from introducing evidence of the child’s best interests. The law states that “the party seeking to establish paternity in someone other than the mother’s husband must establish by clear and convincing evidence that overcoming the presumption of legitimacy and having the mother’s husband replaced as the legal father, is the outcome most consistent with reason, primarily because it would promote the child’s best interests.” Simmonds v. Perkins, 247 So. 3d 397, 402 (Fla. 2018) (citing Dep’t of Health & Rehab. Servs. v. Privette, 617 So. 2d 305, 308-09 (Fla. 1993)). 5 However, the challenged April 6, 2017, order was entered after a hearing attended by the appellant, Ms. Nipper, and Mr. Nipper. The order indicates that the parties testified, and the appellant was a named party. In the appellant’s motion to vacate and his initial brief, he does not deny that he was present for the hearing or assert that he did not testify. Instead, to support his position that his due process rights were violated, he points to the lack of specific factual findings in the order. At the hearing on the motion to vacate, he failed to explain how the trial court deprived him of the ability to prove his standing and the child’s best interests. Thus, the appellant did not demonstrate an illegal deprivation of his right to be heard that would render the April 6, 2017, order void and therefore subject to challenge at any time. See Taylor v. Jones, 760 So. 2d 975, 976 (Fla. 3d DCA 2000) (holding that the motion to vacate a default judgment was properly denied where the allegations in the motion were insufficient and movant failed to provide any affidavits or sworn statements to support the allegations). Under these circumstances, this aspect of his January 31, 2019, motion to vacate was properly denied. The second issue is whether the trial court erred in denying the motion to vacate the April 6, 2017, paternity order on the grounds that it was no longer equitable due to a change in the circumstances. This is a pure question of law to be reviewed de novo. Travelers Commercial Ins. Co. v. Harrington, 187 So. 3d 879, 884 (Fla. 1st DCA 2016). To seek relief pursuant to rule 1.540(b)(5) or 12.540(b)(5), an appellant must show that there are new circumstances that affect the judgment previously rendered by the trial court which make it no longer equitable for the trial court to enforce its decision. See Garcia v. Christiana Trust, 230 So. 3d 66, 69 (Fla. 3d DCA 2017). “At its core, there must be some new post-judgment fact or occurrence that requires the trial court, in equity, to recede from its prior order or judgment.” Id. This provision “does not allow a party to retry a case merely because the judgment provides equitable relief and the party has found additional evidence.” Pure H20 Biotechnologies, Inc. v. Mazziotti, 937 So. 2d 242, 245 (Fla. 4th DCA 2006). 6 In the instant case, the appellant’s arguments rest on the events that occurred prior to the entry of the challenged April 6, 2017, order. He argued that his due process rights were violated during the March 30, 2017, hearing on his petition to determine paternity because the issue of paternity was not fully litigated. As the appellant does not raise any new circumstances that affect the April 6, 2017, order, rules 1.540(b)(5) and 12.540(b)(5) do not apply. Therefore, this aspect of the appellant’s motion to vacate was properly denied. AFFIRMED. B.L. THOMAS and ROBERTS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Holli T. Dean of Law Office of David M. Goldman, PLLC, Jacksonville, for Appellant. Marynelle Hardee of Hardee Legal, PLLC, Gainesville, for Appellee. 7