DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

IN RE MARRIAGE OF CHARLES W. KIRBY

No. 4D18-1386 

[August 14, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Scott I. Suskauer and Catherine M. Brunson, Judges; L.T. 

Case No. 501993DR000747XXDIFC.

Peggy Rowe-Linn of Peggy Rowe-Linn, P.A., West Palm Beach, for 

appellant, Charles W. Kirby.

James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, 

North Palm Beach, for appellee, Rory Kirby, deceased.

LEVINE, C.J.

The former wife, appellee, died on May 30, 2017. Her counsel notified 

the trial court of the former wife’s death the following day. Before the 

estate was even opened and the estate substituted as a party, the trial 

court granted the former husband’s motion for attorney’s fees, intending 

to bind the former wife’s estate and heirs. A successor judge vacated the 

attorney’s fees order and dismissed the case against the former wife. The 

former husband appeals. We find that the trial court correctly vacated the 

initial judge’s granting of attorney’s fees, without notice to the former wife’s

estate. We thus affirm the vacatur of the fee order but, on confession of 

error, reverse the dismissal of the action against the former wife.

This appeal stems from a proceeding ancillary to the parties’ 1993 

divorce. In 2015, the former husband petitioned to modify his alimony 

obligation. During the course of the modification proceedings, a discovery 

matter arose. As a result of this discovery issue, the trial court determined 

that the former husband would be awarded attorney’s fees in the matter. 

A hearing on the former husband’s fee motion was held on May 19, 2017, 

during which both parties were present. 

However, on May 31, 2017, the former wife’s attorney filed a suggestion 

of death indicating that the former wife had passed away on May 30. The 

former husband moved to substitute the former wife’s estate as a party, 

but his motion was never ruled on. Then, on June 19, 2017—after the 
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former wife’s death but before her estate had been substituted as a party 

or even opened—the trial court entered an order granting the former 

husband’s motion for attorney’s fees. In the order, the trial court 

acknowledged the former wife’s death, but nonetheless expressed its intent 

“to bind her estate, heirs, agents, and representatives.” It therefore 

ordered that the former husband’s attorney was entitled to recover her fees 

“against [the former wife] and her heirs, successors, agents and assigns.” 

The estate was filed and opened on June 20, the day after the trial court’s 

order granting attorney’s fees. 

Two new attorneys subsequently filed notices of appearance on behalf 

of the deceased former wife. After two judicial reassignments, the 

attorneys filed a motion to vacate the June 19, 2017, fee order and dismiss 

the case as to the former wife because the estate was not substituted 

within ninety days of the suggestion of death. The trial court summarily 

granted the motion in both regards and this appeal follows. 

This court generally reviews an order on a motion to vacate for abuse 

of discretion. Segalis v. Roof Depot USA, LLC, 178 So. 3d 83, 85 (Fla. 4th 

DCA 2015). However, when the decision to vacate is based on a pure 

question of law, this court conducts de novo review. Id.

The trial court correctly vacated the order granting attorney’s fees to 

the former husband. Obviously, upon the former wife’s death, she ceased 

to be present before the court. Additionally, absent a valid order 

substituting the estate, the estate was not before the court on June 19, 

2017, either. It is error to enter judgment against a non-present party. 

Floyd v. Wallace, 339 So. 2d 653, 654 (Fla. 1976) (finding cause of action 

abated upon death of indispensable party and court erred in “adjudicating 

the rights of the parties without having all of them actually or 

constructively before it” before properly substituting party in deceased 

respondent’s case).

Because neither the former wife nor the estate was properly before the 

court at the time the fee order was entered, that order was void ab initio. 

In such circumstances, the trial court should have abated proceedings 

until the substitution of the estate or personal representative. See Mattick 

v. Lisch, 43 Fla. L. Weekly D2467 (Fla. 2d DCA Nov. 2, 2018) (stating that 

upon suggestion of death, correct course is to abate action until “the estate 

or a proper legal representative” is substituted). Due process mandates 

that the estate be given notice of the hearing that resulted in binding the 

estate to pay attorney’s fees to the former husband. As such, the 

successor judge below was correct in vacating the order, albeit for a 

different reason. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 
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2d 638, 644 (Fla. 1999) (“In some circumstances, even though a trial 

court’s ruling is based on improper reasoning, the ruling will be upheld if 

there is any theory or principle of law in the record which would support 

the ruling.”).

Reversal is warranted, however, on the order granting the former wife’s 

motion to dismiss. In granting the motion to dismiss, the trial court 

erroneously relied upon the former wife’s representation that Florida Rule 

of Civil Procedure 1.260 applied. That rule requires that an action be 

dismissed if a motion for substitution is not made within ninety days of an 

opposing party’s death. Fla. R. Civ. P. 1.260(a)(1). As the former wife now 

concedes, that rule is inapplicable here. 

Instead, the applicable rule was Florida Family Law Rule 12.260(a)(1), 

which does not set out a substitution timeframe and instead states: 

If a party dies and the claim is not thereby extinguished, the 

court may order substitution of the proper parties. The 

motion for substitution may be made by any party . . . [and] 

must be served on all parties . . . . If a party dies while a 

proceeding is pending and that party’s rights survive, the 

court may order the substitution of the proper party on its 

own motion or that of any interested person.

In applying the incorrect procedural rule, the trial court concluded it 

lacked discretion and thus had to dismiss the case. This was error. See 

Rice v. NITV, LLC, 19 So. 3d 1095, 1099 (Fla. 2d DCA 2009) (reversing 

where trial court erroneously believed it lacked discretion to continue 

hearing). We therefore reverse the order granting dismissal as to the 

former wife and remand for the trial court to apply Florida Family Law 

Rule 12.260 in determining how to proceed on the matter of fees against 

the estate. 

Affirmed in part, reversed in part, and remanded.

GERBER and KUNTZ, JJ., concur. 

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Not final until disposition of timely filed motion for rehearing.