FAMILY LAW: CHILD SUPPORT: CIVIL PROCEDURE: RELIEF FROM JUDGMENT: CLERICAL MISTAKES: IMPUTATION OF MEDIAN INCOME, RATHER THAN MINIMUM INCOME, WAS A SUBSTANTIVE, RATHER THAN A CLERICAL, ERROR THAT SHOULD HAVE BEEN ADDRESSED BY MOTION FOR REHEARING OR APPEAL RATHER THAN MOTION FOR RELIEF FROM JUDGMENT UNDER FLA. R. CIV. P. 1.540(a): MISTAKE ARISING FROM DELIBERATE CHOICE IS NOT CLERICAL ERROR

Department of Revenue v. Annis, ___ So. 3d ___, 40 Fla. L. Weekly D565 (Fla. 2d DCA March 4, 2015)

The Department of Revenue (DOR) filed a petition for support against the father. The trial court’s amended final judgment imputed income at the median income level, but a successor judge relied upon Fla. R. Civ. P. 1.540(a) to enter a second amended final judgment that reduced the imputation of income to the minimum wage level. The appellate court reversed. Rule 1.540(a) may be used to correct clerical, but not substantive, errors. “The successor judge’s findings . . . indicate[d] that she believed that the median wage level imputation of income was the result of a mistaken view of the facts or law and that there had been a due process violation at the hearing on DOR’s motion to vacate. But those types of errors are judicial errors that must be addressed by appeal and not by rule 1.540(a). Consequently, because the trial court lacked jurisdiction under rule 1.540(a) to reduce the imputation of income on these facts, it committed fundamental error when it vacated the amended final judgment of support and entered the second amended final judgment of modification to correct error.” A clerical error does not occur when the mistake is the product of a deliberate choice.

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