Randy Miller v. Jiyon Ko

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Chird District Court of Appeal

State of Florida

Opinion filed November 26, 2025.
Not final until disposition of timely filed motion for reheanng.

No. 3D23-2229
Lower Tnbunal No. 19-14796-FC-04

Randy Miller,
Appellant,

vs.

Jiyon Ko,
Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Spencer Multack, J udge.

Bimbaum, Lippman & Gregoire, PLLC, and Nancy W. Gregoire
Stamper (Fort Lauderdale); Rosenbaum & Acevedo, L.L.P., and Joseph S.
Rosenbaum; Law Office of Julia Kefalinos, P.A., and Julia Kefalinos,
for appellant.

Abramowitz and Associates, and Evan L. Abramowitz, for appellee.

Before SCALES, C.J., and EMAS and GORDO!, JJ.

EMAS, J.

' Judge Gordo did not participate in oral argument.

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INTRODUCTION
Randy Miller (“Former Husband”) appeals a November 13, 2023 order
denying his motion to declare void an October 17, 2021 Amended Final
Judgment of Dissolution of Marriage, and seeking instead to enforce a prior
Final Judgment of Dissolution of Marriage, rendered July 12, 2021. The
appellee is Miller’s former wife, Jiyon Ko (“Former Wife”). For the reasons
that follow, we affirm the trial court’s order denying Miller’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
The following procedural history, while somewhat convoluted, is
necessary to our decision. Former Wife filed a petition for dissolution of
marriage, and a trial was held in June 2021. The trial court rendered a final
judgment on July 7, 2021, but five days later vacated that final judgment and
rendered in its place a Final Judgment on July 12, 2021.
Former Wife timely moved for rehearing of the July 12 Final Judgment.
She also filed a notice of appeal of that Final Judgment on July 29, 2021.2
While Former Wife’s appeal of the Final Judgment was pending, the trial
2 See Ko v. Miller, 3D21-1567, filed July 29, 2021. As discussed infra, and
as part of Former Husband’s argument, the notice of appeal filed by Former
Wife failed to indicate the pendency of the motion for rehearing and the date
on which that motion for rehearing had been filed. See Fla. R. App. P.
9.110(d) (“If a motion postponing rendition under rule 9.020(h) is pending
when the notice of appeal is filed, the notice of appeal must indicate the
pendency of such a motion and the date it was filed.”).

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court disposed of Former Wife’s pending motion for rehearing, rendering an
Amended Final Judgment on October 17, 2021. Although it did not contain
an explicit “grant” of Former Wife’s motion for rehearing, the October 17th
Amended Final Judgment addressed the issues raised by Former Wife, was
materially different in substance from the July 12th Final Judgment and did,
in fact, grant the relief sought by Former Wife in her rehearing motion. See,
e.g., Thomas v. Cromer, 276 So. 3d 69, 71 n. 3 (Fla. 3d DCA 2019) (“[I]f the
relief sought by the pending motion is consistent with the Court's final
judgment, the motion may be deemed to have been impliedly granted.”)
(quoting City of Plant City v. Mann, 400 So. 2d 952, 954 (Fla. 1981)). As a
result, on December 10, 2021, Former Wife voluntarily dismissed her appeal
of the July 12th Final Judgment.
Meanwhile, Former Husband timely appealed the October 17th
Amended Final Judgment.3 He also filed, in the trial court, a motion to
enforce the July 12th Final Judgment and to declare void the October 17th
Amended Final Judgment, asserting the trial court was without jurisdiction4
3 See Miller v. Ko, 3D21-2253, filed November 18, 2021.
4 The term “jurisdiction” as used in this context is understood to mean the
power of the court to act on a particular case given its procedural posture,
often referred to as “procedural jurisdiction,” “case jurisdiction,” or
“continuing jurisdiction,” rather than subject-matter jurisdiction. See e.g.,
JJJTB, Inc. v. Schmidt, 415 So. 3d 129, 134 (Fla. 2025) (Couriel, J.

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to enter the October 17th Amended Final Judgment because Former Wife’s
appeal of the July 12th Final Judgment was pending, and thus, the trial court
was without authority to substantially or materially alter that Final Judgment.
While Former Husband’s appeal of the October 17th Amended Final
Judgment was pending, Former Husband successfully moved for
disqualification of the trial judge, and he thereafter filed a motion with this
court seeking a relinquishment of jurisdiction for the successor judge to
reconsider the trial court’s October 17th Amended Final Judgment. This
court denied Former Husband’s motion to relinquish, noting that his appeal
of the October 17th Amended Final Judgment was already fully briefed and
perfected. Two weeks later, on May 12, 2023, Former Husband voluntarily
dismissed his appeal of the October 17th Amended Final Judgment in 3D21-
2253.
Back in the trial court with the successor judge, Former Husband
pursued his motion to declare void the October 17th Amended Final
Judgment and to enforce the earlier-entered July 12th Final Judgment. The
successor judge held a hearing and on November 13, 2023, entered an order
denying Former Husband’s motion, holding Former Wife’s appeal of the July
concurring) (discussing the distinction between the concepts); Padron v.
Padron, 356 So. 306, 307-08 (Fla. 3d DCA 2023) (same).

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12th Final Judgment had been held in abeyance due to her filing of an
authorized and timely motion for rehearing and thus, the trial court was
authorized to dispose of Former Wife’s motion for rehearing5 and issue the
October 17th Amended Final Judgment. This appeal followed.
ANALYSIS AND DISCUSSION6
Florida Rule of Appellate Procedure 9.020(h)(1)(B) generally provides
that the filing of an authorized and timely motion for rehearing tolls rendition
of a final order, and the final order is not deemed rendered until the filing of
a signed, written order disposing of such a motion. Prior to 2015, rule
9.020(i)(3) further provided: “If such a motion or motions have been filed and
a notice of appeal is filed before the filing of a signed, written order disposing
of all such motions, all motions filed by the appealing party that are pending
at the time shall be deemed abandoned. . . .” See Mora v. McDonough, 934
So. 2d 587 (Fla. 1st DCA 2006) (trial court lacked jurisdiction to rule upon
motion for rehearing where notice of appeal was filed before trial court ruled);
Rice v. Brown, 645 So. 2d 1020 (Fla. 2d DCA 1994) (notice of appeal
divested trial court of jurisdiction to enter remittitur order); see also Dep’t of
5 Pursuant to Fla. Fam. R. P. 12.530(f), the trial court may rule on the motion
without a hearing, if it determines that a hearing is not required.
6 Because our review involves a question of law, our standard of review is
de novo. Lovest v. Mangiero, 279 So. 3d 205, 206 (Fla. 3d DCA 2019).

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Revenue v. Vanamburg, 174 So. 3d 640, 642 n.1 (Fla. 1st DCA 2015) (noting
the rule change but applying the pre-2015 version); Christakis v. Tivoli
Terrace, LLC, 219 So. 3d 85 (Fla. 4th DCA 2017).
However, in 2014, the Florida Supreme Court amended (and
renumbered subsections of) rule 9.020 (with an effective date of January 1,
2015). See In Re Amendments to Florida Rules of Appellate Procedure, 183
So. 3d 245 (Fla. 2014); see also In re Amendments to Florida Rules of
Appellate Procedure—2017 Regular-Cycle Report, 256 So. 3d 1218 (Fla.
2018). The version of rule 9.020 applicable to the instant case provides that
if a notice of appeal is filed before the rendition of an order disposing of one
or more timely and authorized motions for rehearing, such motions toll
rendition, and “the appeal shall be held in abeyance until the filing with the
clerk of a signed, written order disposing of the last such motion.”7 Fla. R.
App. P. 9.020(h)(2)(C) (emphasis added). See In Re Amendments to Florida
Rules of Appellate Procedure, 183 So. 3d at 246-47 (noting the amendment
“eliminate[s] the language providing that postjudgment motions are
7 The relevant language of rule 9.020(h)(2)(C) was subsequently amended,
and presently provides that “if a notice of appeal is filed before the rendition
of an order disposing of all such motions, the appeal must be held in
abeyance until the motions are either withdrawn or resolved by the rendition
of an order disposing of the last such motion.”

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abandoned upon the filing of a notice of appeal . . . [and] will allow an appeal
to be held in abeyance until disposition of a postjudgment motion.”).
This rule change authorizes trial courts to dispose of timely and
authorized motions for rehearing of final orders which remain pending after
a notice of appeal has been filed, and requires the appellate court to hold the
appeal in abeyance. See Hardin v. State, 189 So. 3d 233 (Fla. 2d DCA
2016); Carroll v. State, 157 So. 3d 385 (Fla. 2d DCA 2015) (holding the
notice of appeal should have been held in abeyance until the trial court ruled
on the motion to withdraw plea); Chipman v. State, 285 So. 3d 1005 (Fla. 2d
DCA 2019) (noting that trial court had jurisdiction to consider pending motion
and vacating appellate court order denying motion to hold appeal in
abeyance). See also Brannon v. State, 396 So. 3d 420 (Fla. 6th DCA 2024)
(noting trial court was not divested of jurisdiction where authorized and timely
motion was filed before filing of the notice of appeal, and that motion tolled
rendition of the final order).
Former Husband acknowledges this applicable change in the rule, but
asserts that because Former Wife failed to comply with Florida Rule of
Appellate Procedure 9.110(d), which required Former Wife to include this
information (i.e., the pendency in the trial court of her motion for rehearing)
in her notice of appeal, and continued her prosecution of the appeal

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notwithstanding the pending motion for rehearing in the trial court, she
waived the rule’s provision that the appeal be held in abeyance. Thus,
Former Husband posits, the trial court was without jurisdiction to enter the
Amended Final Judgment on October 17, 2021, and jurisdiction did not return
to the trial court until Former Wife’s voluntary dismissal of the appeal (which
she filed after the trial court rendered the Amended Final Judgment on
October 17, 2021).
As Former Husband properly notes, Former Wife’s July 29, 2021 notice
of appeal failed to comply with the related Florida Rule of Appellate
Procedure 9.110(d). At the time Former Wife filed her notice of appeal in
3D21-1567, that rule provided in pertinent part (emphasis added):
If a motion postponing rendition pursuant to rule 9.020(h) is
pending when the notice of appeal is filed, the notice of appeal
shall indicate the pendency of such a motion and the date it
was filed. Within 10 days of either withdrawal of such a motion
or rendition of the order being appealed, the appellant shall file
in the court a notice indicating that the motion has been
withdrawn or a conformed copy of the signed, written order
disposing of the motion postponing rendition.
In re Amendments to Florida Rules of Appellate Procedure—2020 Regular-
Cycle Report, 345 So. 3d 30, 31 (Fla. 2020) (adopting this amendment to
rule 9.110(d), with an effective date of January 1, 2021).
Former Wife’s notice of appeal failed to indicate the pendency of her
motion for rehearing, which was filed on July 19, 2021, ten days before she

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filed her notice of appeal. The appeal was still pending when the trial court
vacated the July 12th Final Judgment and entered the October 17th
Amended Final Judgment. In addition, Former Wife failed to comply with the
rule requiring her to file with this court a conformed copy of the order
disposing of her then-pending motion for rehearing.
Nevertheless, Former Husband does not cite any case to support the
proposition that the failure of Former Wife to include, in her notice of appeal,
a reference to the pending motion for rehearing somehow waives the
abeyance or abandons the motion for rehearing. Given the mandatory
language used by the Florida Supreme Court in its 2015 amendment (the
appeal “shall be held in abeyance until the motions are either withdrawn
or resolved by the rendition of an order disposing of the last such
motion”) and the absence of any language in its 2020 amendment of
9.110(d) that a failure to comply with the latter rule constitutes a waiver of
the abeyance of the appeal or an abandonment of the pending motion for
rehearing,8 we reject Former Husband’s argument and hold that the failure
8 The Florida Supreme Court, like the Legislature, is aware of the language
of its existing rule when it effectuates an amendment of that rule, and if the
Court intended a failure to comply with the amendatory language of the rule
to constitute a waiver or abandonment of the pending motion for rehearing,
“it would have said so.” See Gering v. State, 252 So. 3d 334, 339 (Fla. 3d
DCA 2018).

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to include in the notice of appeal a reference to the pending motion for
rehearing in the trial court did not constitute an abandonment of the pending
motion for rehearing, and did not nullify rule 9.020(d)’s requirement that the
appeal be held in abeyance until that motion for rehearing is either withdrawn
or resolved in the trial court by rendition of an order disposing of the motion.
Following the trial court’s rendition of the Amended Final Judgment,
Former Wife voluntarily dismissed her appeal in 3D21-1567. This was
understandable, given that the order on review in that appeal (the Final
Judgment) was vacated and replaced with the Amended Final Judgment,
thus mooting Former Wife’s appeal of that now-vacated final judgment.
On November 16, 2021, Former Husband (just as understandably)
filed his notice appeal (3D21-2253) of the October 17th Amended Final
Judgment, which sought review of the merits of that final judgment and
contended that the trial court abused its discretion in its determination of
equitable distribution, alimony and child support. The appeal proceeded in
due course, and all briefing was completed and the case perfected by the
filing of a reply brief on April 3, 2023.
Thereafter, on April 26, 2023, Former Husband moved for
relinquishment of jurisdiction to allow the successor judge to reconsider the
prior rulings of the disqualified judge. See Fla. R. Gen. Prac. & Jud. Admin.

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2.330(j) (providing: “Prior factual or legal rulings by a disqualified judge may
be reconsidered and vacated or amended by a successor judge); Samoilova
v. Loginov, 330 So. 3d 1041, 1042 (Fla. 3d DCA 2021); see also Schlesinger
v. Chem. Bank, 707 So. 2d 868, 869 (Fla. 4th DCA 1998) (holding that
although “[a] final judgment entered by a judge who was later disqualified is,
like any other order, subject to being reconsidered by a successor judge,”
appellant not entitled, as a matter of right, to have the final judgment vacated
because such orders are voidable, not void) (citing Barber v. MacKenzie,
562 So. 2d 755 (Fla. 3d DCA 1990)). However, this court denied Former
Husband’s motion for relinquishment, noting that the appeal was already
perfected.
Former Husband then voluntarily dismissed his appeal in 3D21-2253.
Former Wife argues that accordingly, he cannot appeal the October 17th
final judgment again. She is correct. See Costa Del Mar, Inc. v. Haney, 330
So. 3d 1046 (Fla. 1st DCA 2021).9
9 Former Husband insists that he is not appealing the October 17th Amended
Final Judgment, but rather, appealing the November 13, 2023 order of the
successor judge denying his motion to declare the October 17th final
judgment void. While this may be true, the arguments advanced in the motion
before the successor judge were that the October 17th Amended Final
Judgment is void because (1) an appeal was pending; (2) it was entered
without giving Former Husband notice or an opportunity to be heard; (3) there
was no motion to alter or amend the July 12 final judgment; (4) the July 12
Final Judgment was never vacated by the trial court; (5) the October 17th

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CONCLUSION
Because Former Wife filed a timely and authorized motion for
rehearing, it tolled rendition of the July 12th Final Judgment, and required
Former Wife’s appeal of that final judgment be held in abeyance until the trial
court disposed of the pending motion for rehearing. The trial court therefore
had continuing jurisdiction to render its October 17th Amended Final
Judgment, disposing of the pending motion for rehearing, and therefore was
not void.
And while we do not condone Former Wife’s failure to comply with rule
9.110(d), which required her to include in the notice of appeal an indication
of the pendency of her motion for rehearing and the date that motion was
filed, we reject Former Husband’s argument that such a failure constituted
an abandonment of the motion for rehearing or waived the mandatory
provision of rule 9.020(h)(2)(C), requiring that the appeal be held in
abeyance until the motion for rehearing is either withdrawn or resolved by
rendition of an order disposing of the motion.
Amended Final Judgment exceeded the trial court’s jurisdiction. We have
addressed the most salient of these arguments in this opinion. We find any
remaining arguments to be without merit and warrant no additional
discussion.

Affirmed.
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