Kucera v. Kucera , 330 So. 2d 36 ( 1975 )

330 So. 2d 36 (1975)

Frank E. KUCERA, Appellant,
v.
Jane H. KUCERA, Appellee.

No. 75-1005.

District Court of Appeal of Florida, Fourth District.

December 26, 1975.

Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto & Dean, and Cone, Wagner, Nugent, Johnson & McKeown, P.A., West Palm Beach, for appellant.

James P. O'Flarity and Sales & Christiansen, Palm Beach, for appellee.

DOWNEY, Judge.

During the pendency of this dissolution proceeding in the trial court, original counsel for the appellant-husband withdrew. Thereafter, upon counsel's motion the trial court on April 9, 1975, adjudicated the amount of attorney's fees due counsel from appellant and directed that the fee be paid from funds held for appellant by another law firm.

Appellant filed a petition for rehearing directed to the order of April 9, 1975. The court denied the petition on May 28, 1975. Appellant then filed what was denominated an interlocutory appeal from the May 28, 1975 order. Since that time various motions have been filed to dismiss the appeal and to strike the appellant's brief and appendix.

In order to return these appellate proceedings to their proper perspective we deem it appropriate to make the following observations.

The order of April 9, 1975 was a final judgment subject to a plenary appeal. Hastings v. Osius, Fla. 1958, 104 So. 2d 21. Thus, the timely petition for rehearing tolled the time for appeal from said judgment. Although appellant's notice of appeal designates this as an appeal from the order of May 28, 1975, denying the petition for rehearing, examination of the record on appeal demonstrates that appellant is seeking review of the action of the trial court set forth in the judgment of April 9, 1975. We therefore consider this appeal as if it were from the final judgment of April 9, 1975. State ex rel. Poe v. Allen, Fla. 1967, 196 So. 2d 745; DeLoache v. DeLoache, Fla. 1973, 274 So. 2d 83; Shute v. Keystone State Bank, Fla.App. 1963, 159 So. 2d 106.

Accordingly, the motions to dismiss and to relinquish jurisdiction, filed November 5, 1975, and November 10, 1975, respectively, are denied. The order of this court dated November 4, 1975, is vacated sua sponte, and appellee shall have 20 days from date hereof within which to file appellee's brief.

It is so ordered.

CROSS and MAGER, JJ., concur.