
    Chelsea GOODING, Appellant, v. John M. GOODING, Appellee.
    No. BC-406.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1986.
    Rehearing Denied Feb. 14, 1986.
    
      Robert B. Staats, Panama City, for appellant.
    William E. Harris, Panama City, for ap-pellee.
   PER CURIAM.

This cause is before us on appeal from an order in which the trial court determined it lacked jurisdiction to amend a final judgment in a dissolution of marriage where the husband made a $23,000 misrepresentation regarding the mortgage debt on a house in New Orleans, Louisiana.

The record shows that the balance due on the New Orleans property was $63,000 and that the husband represented to the trial court the balance due was $40,000. After judgment awarding the wife the New Orleans property, on which she was to assume the mortgage debt, the wife requested relief pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. The misrepresentation was discovered after time for a motion for rehearing had passed, yet within the year required by that rule, and is properly raised by the motion. The trial court has jurisdiction to consider and grant relief under Rule 1.540(b). See, Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2d DCA 1976).

Accordingly, the order below is reversed and the cause remanded for proceedings consistent herewith.

BOOTH, C.J., and BEN C. WILLIS (Ret.), Associate Judge, concur.

ZEHMER, J., dissents.

ZEHMER, Judge,

dissenting.

I respectfully dissent. I do not characterize the facts in this case as showing that the husband made a $23,000 fraudulent misrepresentation regarding the mortgage debt on a house in New Orleans. The record before the trial judge contained evidence that the balance on the New Orleans property mortgage was $63,000 and the husband’s representation that he believed the balance due was $40,000. The appealed order comes to this court clothed with a presumption of correctness. The record supports a finding by the trial judge that no fraud, misrepresentation, or other misconduct of an adverse party, as contemplated by rule 1.540(b)(3), Florida Rules of Civil Procedure, occurred in this instance. Indeed, the record is quite equivocal that the trial judge relied only on the $40,000 figure said to have been misrepresented by the husband, rather than the $63,000 figure shown by the record as the true balance due on the mortgage.

Of course, the trial court technically had jurisdiction to consider whether a material misrepresentation within the meaning of rule 1.540(b) had occurred that affected the validity of the judgment. My view of the record is that the trial judge felt the complained-of error was not relied on by him and was, thus, not sufficiently important to warrant opening the judgment under rule 1.540(b), and, for this reason, stated he had no jurisdiction under that rule to vacate the judgment. Accordingly, I find no abuse of discretion on the part of the trial judge and would affirm the appealed order.  