Opinion
No. 84-1119.
September 25, 1984. Rehearing Denied October 26, 1984.
Appeal from the Circuit Court, Dade County, Richard S. Fuller, J.
Papy, Poole, Weissenborn Papy and Sheridan K. Weissenborn, Coral Gables, for appellant.
David F. Cerf, Jr., Miami, for appellee.
Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
We reverse the ruling of the trial court in ordering a trial de novo in this cause and note that our prior opinion in Brubaker v. Brubaker, 435 So.2d 290 (Fla. 3d DCA 1983), by which we are bound, only requires that the trial court entertain a motion pursuant to Rule 1.540(b), Fla.R. Civ.P. on the question of the appellee's status as an irrevocable beneficiary of appellant's pension plan.
Reversed.
When this case was first before us, we affirmed the final judgment of dissolution, stating that our affirmance was without prejudice to the wife to file a Rule 1.540 motion in the trial court on her claim that the trial court was misled into believing that the wife was an irrevocable beneficiary of the husband's pension plan. See Brubaker v. Brubaker, 435 So.2d 290 (Fla. 3d DCA 1983). We were not then made aware that the wife had already filed a Rule 1.540 motion urging that very claim and that that motion had been denied. Because the denial of the wife's Rule 1.540 motion was never questioned on any appeal taken by the wife, that denial is now res judicata, and the wife is precluded from relitigating this issue. Accordingly, I would reverse with directions to dismiss the wife's Rule 1.540 motion.