Opinion
No. 3D19-1154
08-26-2020
Cash W. PAWLEY, Sr., Appellant, v. Janice MARIE, Appellee.
Cash W. Pawley, Sr., in proper person. Janice Marie, in proper person, precluded from oral argument.
Cash W. Pawley, Sr., in proper person.
Janice Marie, in proper person, precluded from oral argument.
Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
ON MOTION FOR REHEARING
EMAS, C.J.
Upon consideration, we grant appellant's motion for rehearing, withdraw our previous opinion, and substitute the following in its stead:
Cash W. Pawley, Sr. appeals the trial court's order denying his December 2018 motion to modify a permanent injunction for protection against domestic violence. The permanent injunction was issued more than five years earlier in September 2013, upon Pawley's express agreement waiving any objections to the trial court's entry of a permanent injunction in favor of Janice Marie. Indeed, following an extensive colloquy on the record, the trial court found that Pawley had "knowingly, freely, and voluntarily acquiesced to the entry of a permanent injunction without the necessity of a final hearing."
At the time, Pawley was in custody pending his trial for aggravated assault and attempted first-degree murder of Janice Marie. Following a jury trial, he was convicted and is currently serving a forty-year prison sentence for those crimes. See Pawley v. State, 199 So. 3d 309 (Fla. 3d DCA 2016).
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The basis for Pawley's 2018 motion to modify (which was in reality a motion to dissolve the permanent injunction) is the claim that the trial court was without subject-matter jurisdiction to issue the permanent injunction because of "fraud on the court." The fraud, Pawley asserts, was that Janice Marie alleged in her 2012 petition for permanent injunction that she and Cash Pawley had lived together when (as Pawley asserts) they never did. Pawley asserts that because he and Marie never resided together, Marie was not entitled to a permanent injunction. See section 741.30(e), Fla. Stat. (2012) (providing that a permanent injunction for protection against domestic violence "may be sought by family or household members") and section 741.28(3), Fla. Stat. (2012) (requiring that "[w]ith the exception of persons who have a child in common, the family or house members must be currently residing or have in the past resided together in the same single dwelling unit.") Pawley further asserts that because of this "fraud on the court" committed by Marie, the trial court was without jurisdiction to issue the injunction.
We find no merit in any of Pawley's arguments. Pawley expressly agreed to entry of the permanent injunction, thereby waiving his right to contest the factual allegations contained in Marie's 2012 petition. Further, even if (as Pawley contends) Marie and Pawley never lived together as Marie alleged in her petition, this did not constitute a fraud on the court such that relief could be sought beyond the one-year limitation provided in Florida Rule of Civil Procedure 1.540(b). Nor did it somehow deprive the trial court of subject-matter jurisdiction or render the resulting permanent injunction void. See Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007) (explaining that only extrinsic fraud may constitute a fraud on the court, and provide a basis for relief beyond the one-year time limitation imposed by rule 1.540 ; further explaining that "extrinsic fraud involves conduct which is collateral to the issues tried in a case and generally involves conduct in which a defendant has somehow been prevented from participating in a cause); Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 801 (Fla. 2003) (observing: "Subject matter jurisdiction ‘means no more than the power lawfully existing to hear and determine a cause.’ It ‘concerns the power of the trial court to deal with a class of cases to which a particular case belongs.’ ") (internal citations omitted); NAFH Nat'l Bank v. Aristizabal, 117 So. 3d 900, 903 (Fla. 4th DCA 2013) (observing that the "policy of law that favors the termination of litigation supports a narrow application of the ‘fraud upon the court’ exception to the one-year limit on rule 1.540(b) motions").
Affirmed.