The legal process of ending a marriage is rarely a straight line. Between trial court rulings and the appellate process, the timeline of a divorce can become a “convoluted” procedural maze. For those navigating this terrain, a Tampa divorce lawyer is an essential guide to ensure that technical errors do not derail your case. The recent decision in Miller v. Ko (2025) by the Third District Court of Appeal of Florida provides a vital lesson on the power of “rehearing motions” and how they impact a court’s jurisdiction even after an appeal has been filed.
In this case, the court had to decide whether a second, amended judgment was valid when it was issued while an appeal of the first judgment was already pending. For anyone involved in a high-stakes divorce, the expertise of a Tampa divorce lawyer is critical in understanding these “abeyance” rules, which can determine whether a judgment is legally binding or completely void.
The Procedural History of Miller v. Ko
The conflict in Miller v. Ko began after a trial in June 2021. The trial court initially rendered a final judgment in July, but quickly replaced it with a second Final Judgment on July 12, 2021. The Former Wife, Jiyon Ko, was unhappy with the terms and filed a timely motion for rehearing. However, before the court ruled on her rehearing motion, she also filed a notice of appeal regarding that same July 12 judgment.
This created a overlapping situation:
- There was a pending motion for rehearing in the trial court.
- There was an active appeal in the appellate court.
Under older Florida rules, filing a notice of appeal usually meant you “abandoned” your motion for rehearing. However, the rules changed in 2015. While the appeal was technically active, the trial court went ahead and issued an Amended Final Judgment on October 17, 2021, which significantly changed the terms of the divorce in favor of the wife.
The Former Husband, Randy Miller, argued that the trial court had no right to change the judgment while an appeal was pending. He claimed the October 17 Amended Final Judgment was “void” because the appellate court had jurisdiction, not the trial judge. For a Tampa divorce lawyer, this case is a perfect example of why procedural timing is just as important as the facts of the case itself.
The Power of the “Abeyance” Rule
The central question in this case was: Does a trial court lose the power to change a divorce decree once an appeal is filed? The appellate court answered with a definitive “no,” provided a timely motion for rehearing is pending.
The court pointed to Florida Rule of Appellate Procedure 9.020(h)(2)(C). This rule states that if a notice of appeal is filed while a motion for rehearing is still pending, the appeal must be “held in abeyance” (essentially put on pause) until the trial court rules on that motion.
For a Tampa divorce lawyer, this “abeyance” is a critical tool. it ensures that the trial judge—who heard the testimony and saw the evidence—has the final opportunity to fix any mistakes before the higher court takes over. The appellate court held that because the motion for rehearing was “timely and authorized,” the trial court maintained its jurisdiction to issue the Amended Final Judgment, even though the wife had already started the appeal process.
The Importance of Technical Compliance
The case also highlighted a mistake made by the wife’s legal team. When she filed her notice of appeal, she failed to follow Rule 9.110(d), which requires the person appealing to state clearly that a motion for rehearing is still pending in the lower court.
The Former Husband argued that by failing to follow this rule and continuing to push her appeal, the wife “waived” her right to have the appeal paused. He believed this meant the trial court should have been barred from issuing the new judgment.
However, the appellate court disagreed. While they did not “condone” the failure to follow the technical rules, they ruled that a procedural oversight in the notice of appeal does not cancel out the mandatory “abeyance” rule. The court noted that if the Florida Supreme Court intended for a failure to follow Rule 9.110(d) to result in the “abandonment” of a motion, the rule would have said so explicitly. This nuance is why having a Tampa divorce lawyer who understands the fine print of appellate rules is so important; the difference between a “void” judgment and a “valid” one often hangs on these technicalities.
Why This Case Matters for Your Tampa Divorce
If you are going through a divorce, the ruling in Miller v. Ko has several practical implications for your strategy and expectations.
1. The Final Judgment Might Not Be “Final”
Many people believe that once a judge signs a final judgment, the case is over. However, as this case shows, a timely motion for rehearing can “toll” (pause) the finality of that order. A Tampa divorce lawyer can use a motion for rehearing to ask the judge to correct errors in alimony calculations, equitable distribution, or child support without the massive expense of a full appeal.
2. Strategic Use of Rehearing vs. Appeal
Appeals are expensive and can take years to resolve. A motion for rehearing is often a faster and more cost-effective way to seek justice. In the Miller case, the wife successfully used the rehearing process to get a “materially different” and more favorable judgment. Your Tampa divorce lawyer will help you weigh whether to file for rehearing, an appeal, or both simultaneously to protect your rights.
3. Avoiding the “Void Judgment” Trap
The husband in this case spent years litigating whether the second judgment was void. He even tried to have a successor judge (a new judge who took over after the original judge was disqualified) throw out the October 17 judgment. The appellate court’s refusal to declare the judgment void confirms that trial courts have broad “continuing jurisdiction” to resolve pending motions.
4. The Complexity of Successor Judges
In the Miller case, a new judge took over the case mid-stream. Under Florida law, a successor judge has the power to reconsider or vacate prior rulings made by a disqualified judge, but they are not required to do so. A Tampa divorce lawyer navigating a case where the judge changes must be prepared to argue why a prior ruling was legally incorrect or should be reconsidered under the standards of “voidable” orders.
The Consequences of Dismissing an Appeal
Another major takeaway for anyone working with a Tampa divorce lawyer is the danger of voluntarily dismissing an appeal. The husband in Miller v. Ko eventually dismissed his appeal of the October 17 Amended Final Judgment to pursue a different strategy in the trial court.
The appellate court noted that once he dismissed that appeal, he generally could not appeal that same judgment a second time. This highlights the “one bite at the apple” nature of appellate law. If you choose to walk away from an appeal, you must be absolutely certain that your alternative legal path is viable.
Understanding Equitable Distribution and Alimony Revisions
In the Miller v. Ko case, the Amended Final Judgment was “materially different” regarding equitable distribution and alimony. In Florida, equitable distribution is the process of dividing marital assets and debts fairly (though not always equally).
When a trial court issues an amended judgment, it can completely reshape your financial future. Because a Tampa divorce lawyer knows that a motion for rehearing can lead to these substantial changes, they will often advise clients to remain cautious even after a “final” trial ruling is issued. The “abeyance” period is a time of high legal sensitivity where the final outcome of the divorce is still very much in flux.
Jurisdictional Nuances: Subject Matter vs. Procedural
The court in Miller v. Ko made a careful distinction between “subject-matter jurisdiction” and “procedural jurisdiction.”
- Subject-Matter Jurisdiction: The court’s inherent power to hear a divorce case.
- Procedural/Case Jurisdiction: The court’s power to act on a specific case given its current status (like whether an appeal is pending).
The husband argued the trial court lacked the power to act. The appellate court clarified that while an appeal usually transfers jurisdiction to the higher court, the “abeyance” rule creates a specific exception that keeps procedural jurisdiction in the trial court for the purpose of resolving rehearing motions. This technical distinction is why it is so difficult for a non-lawyer to navigate a contested divorce without a Tampa divorce lawyer.
How a Tampa Divorce Lawyer Protects You
The “convoluted” history of Miller v. Ko demonstrates that the law is not just about who is “right,” but about who follows the rules of procedure correctly.
Protection Against Procedural Default A Tampa divorce lawyer ensures that all motions are “authorized and timely.” If the wife in this case had filed her motion for rehearing even one day late, the trial court would have lost jurisdiction, and her favorable Amended Final Judgment would likely have been declared void.
Managing Multiple Deadlines When you have a motion for rehearing and a notice of appeal happening at the same time, the deadlines can become overwhelming. Your Tampa divorce lawyer manages these timelines to ensure that your right to appeal is preserved even while you are seeking a quicker fix in the trial court.
Evaluating the Merits of an Appeal Appealing a divorce decree is a major decision. A Tampa divorce lawyer will look at the trial court’s “findings of fact” and “conclusions of law” to determine if an appeal is likely to succeed. In Miller v. Ko, the husband’s appeal of the merits was “fully briefed and perfected” before he chose to dismiss it—a move that ultimately limited his options.
The Mandatory Nature of Abeyance
One of the strongest statements in the Miller v. Ko opinion was the court’s focus on the word “shall.” The rule says the appeal shall be held in abeyance. In legal terms, “shall” means it is mandatory, not optional.
This gives a level of certainty to litigants. If you file a motion for rehearing, you know that the trial judge has the legal authority to rule on it, even if an appeal is filed. This prevents the “ping-pong” effect where a case bounces between courts without a clear decision-maker. As your Tampa divorce lawyer will explain, this rule is designed to promote judicial efficiency by letting the trial court finish its work before the appellate court begins its review.
Final Lessons from the Miller Decision
The primary lesson of Miller v. Ko is that the trial court’s work isn’t done until all timely post-trial motions are resolved. For spouses in the middle of a divorce, this means:
- Expect the unexpected after the trial.
- Understand that an “Amended Judgment” can replace the original one.
- Recognize that procedural errors (like failing to list a pending motion in a notice of appeal) are serious but may not be fatal to the case.
- Be extremely careful before dismissing an appeal, as it usually ends your ability to challenge that judgment forever.
The help of a Tampa divorce lawyer is essential in navigating these waters. Whether you are the one seeking a rehearing or the one trying to defend the original judgment, the procedural rules identified in this case will dictate the outcome of your divorce.
Frequently Asked Questions
What does it mean to hold an appeal in “abeyance”? Abeyance is a legal term meaning “temporary suppression or suspension.” In a divorce case, it means the appellate court puts the appeal on hold so the trial court can finish ruling on specific motions, like a motion for rehearing.
Can a judge change a divorce decree after it has been signed? Yes, if a party files a timely and authorized motion for rehearing, the judge has the power to amend, vacate, or change the decree. This is exactly what happened in Miller v. Ko, where the second judgment was “materially different” from the first.
What happens if my spouse appeals the divorce but also asks the trial judge for a rehearing? According to the current Florida rules, the appeal will be paused (held in abeyance). The trial judge will first rule on the rehearing motion. Once that is decided, the appeal will either proceed with the new judgment or be dismissed if the issue is resolved.
Is it better to file a motion for rehearing or a notice of appeal? This depends on the specific facts of your case. A motion for rehearing is usually faster and focuses on specific errors made by the judge. An appeal is a broader review by a higher court. A Tampa divorce lawyer will often recommend filing both to ensure all legal avenues are covered.
How long do I have to file a motion for rehearing in Florida? Generally, you have 15 days from the date the judgment is filed to request a rehearing. This deadline is strictly enforced. If you miss it, the trial court loses the power to change the judgment unless there is a very specific reason under Rule 12.540.
Does a “successor judge” have to follow the old judge’s rulings? Not necessarily. If a judge is disqualified and a new judge takes over, the new judge has the discretion to reconsider prior factual or legal rulings. However, they are not required to do so, and they will typically only change a ruling if there is a clear legal reason.
Why did the court in Miller v. Ko say the failure to follow technical rules didn’t matter? The court ruled that the mandatory “abeyance” rule (Rule 9.020) is more powerful than the technical requirement to list pending motions in a notice of appeal. Since the rule didn’t say that a mistake results in “abandoning” the motion, the court refused to create such a harsh penalty.
What is the risk of dismissing an appeal voluntarily? Once you dismiss an appeal, you usually lose the right to challenge that specific judgment in the future. In the Miller case, the husband’s decision to dismiss his appeal of the October 17 judgment meant he could not go back and argue the merits of that judgment later.
Conclusion
The case of Miller v. Ko serves as a vital reminder that the “final” judgment in a divorce is often just the beginning of a new procedural chapter. Navigating the rules of abeyance, rehearing, and jurisdiction requires a sophisticated understanding of the Florida Rules of Appellate Procedure. If you are facing a complex divorce, partnering with an experienced Tampa divorce lawyer is the only way to ensure that you are protected through every motion, every hearing, and every potential appeal.
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Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.