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
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, 

, 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. 

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, 

, 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, 

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, 

, 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.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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