The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2012 Volume 86, No. 5
The Debate Continues on Whether to Remand Family Law Cases with Inadequate Findings

by Larry R. Fleurantin

Page 27

It has been a decade since the Third District Court of Appeal decided Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001). In Broadfoot, the Third District laid down the rule that in family law cases, a litigant may not complain about a trial court’s failure to make factual findings unless the matter was brought to the trial court’s attention in a motion for rehearing to provide the trial court with an opportunity to correct its own errors.1 Almost three years later, in 2004, the Fifth District followed the lead of the Third District by applying the rule in Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004), but with one caveat: “[I]f the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings.”2 This caveat has been known as the Mathieu exception.3 The First District has embraced the Broadfoot rule, but has not yet adopted the Mathieu exception.4 The Fourth District has stated that it disagrees with both Broadfoot and Mathieu.5 So far, the Second District has not explicitly addressed the preservation issue.6 Since the state of the law regarding this preservation issue is unclear, the Florida Supreme Court will have to provide some clarity to litigants and lower courts and some stability to the legal system.

In this article, the author examines some decisions of the district courts, including the Fourth District’s decision in Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th DCA 2005).7 Although Dorsett provides a well-reasoned analysis of the basis for the Fourth District’s disagreement with Broadfoot and Mathieu, this author contends that the Dorsett holding impairs the principle of coherence, which is critical to judicial institutions.8 Therefore, this article urges the district courts, in particular the Fourth District, to revisit Dorsett, to adopt the Broadfoot approach, and to recognize the Mathieu exception to promote uniformity of the law in Florida.

The Third District’s Decision in Broadfoot
In Broadfoot, the appellant asked the Third District to reverse the trial court’s decision based on its failure to make factual findings to support a permanent alimony award and equitable distribution.9 The Third District affirmed the trial court on these two points, finding that the issue of lack of findings was not preserved for appellate review.10 The court noted that “[t]he time to request findings is when the case is pending in the trial court. . . . If the judgment is entered without required findings, then a motion for rehearing should be filed, requesting findings.”11 Finding that the appellant failed to bring to the trial court’s attention the need for statutory findings as required by F.S. §§61.08(1) and 61.07(1), the Third District declined to reverse the trial court.12

Recently, the Third District considered the issue of the trial court’s failure to make factual findings to support its alimony award in Roth v. Cortina, 59 So. 3d 163, 165 (Fla. 3d DCA 2011). Relying on Baptiste v. Baptiste, 992 So. 2d 374, 375 (Fla. 3d DCA 2008), the Roth court reversed, noting the trial court erred by failing to identify the factual basis for its decision.13 There are cases — such as Roth and Baptiste — decided by the Third District after Broadfoot that reversed lower courts’ family law judgments for lack of findings, yet those cases did not acknowledge the Broadfoot rule. Those cases are not necessarily inconsistent with Broadfoot to the extent that the trial court’s failure to make statutory findings in those cases appears to have hampered appellate review.14

The Fifth District’s Mathieu Exception
About three years after Broadfoot was decided, the Fifth District issued its decision in Mathieu, which considered whether to reverse a final judgment of dissolution containing inadequate factual findings.15 The court affirmed the trial court, reasoning that “the required findings are either express or apparent within the judgment, and [its] review is not hampered.”16 The district court stated that the Third District “has taken the approach that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing.”17 The Mathieu court adopted the Third District’s sensible approach, stating that the failure to bring the lack of adequate findings to the trial court’s attention will be considered unpreserved error.18 This approach was adopted with one caveat: “Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case back [to the trial court] for findings.”19

That the Broadfoot rule and Mathieu exception have not been embraced by the Fourth District reveals some level of disagreement among the district courts with the approaches in Broadfoot and Mathieu. But the principles laid down in Broadfoot and Mathieu are reasonable and flexible. They provide the appellate court an opportunity to review the record and apply the principles on a case-by-case basis. If the appellate court determines that the litigants should have brought the matter to the trial court’s attention on rehearing and the lack of findings does not hamper appellate review, then the appellate court can treat the issue as unpreserved. But if the appellate court determines that the trial court failed to make required statutory factual findings in its decision and the absence of those findings hampers its review, then the appellate court may exercise its discretion and remand for findings. Though that is the better approach, so far, the Broadfoot rule and Mathieu exception have not been embraced by all the district courts.

First District’s Application of the Broadfoot Rule and Reluctance to Recognize the Mathieu Exception
The first opportunity the First District had to weigh in on the issue of whether to adopt the Broadfoot approach with or without the Mathieu exception was in 2007, when it decided Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007). In Owens, of the five issues the appellant raised on appeal, the First District decided to briefly discuss one: Whether the final judgment of dissolution lacked sufficient factual findings to permit meaningful appellate review.20 After briefly mentioning the proposition for which Mathieu and Broadfoot stand, the First District determined that the lack of sufficient findings issue was not properly preserved for review. The First District reached its determination without discussing whether it would recognize the Mathieu exception.21

In 2009, the First District had another opportunity to weigh in on the preservation issue when it decided Welch v. Welch, 34 Fla. L. Weekly D1503 (Fla. 1st DCA July 24, 2009). Initially, the district court found no reversible error in the trial court’s judgment, concluding that the appellant failed to preserve the alleged error by bringing the lack of findings to the trial court’s attention on rehearing.22 In reaching its conclusion, the court explicitly stated that the First District “has not recognized the Mathieu exception to the general ‘preservation’ requirement in family law cases.”23 The appellant moved for rehearing and withdrawal of the prior opinion. The district court granted rehearing, withdrew its prior opinion, and substituted it with the clarified opinion of Welch v. Welch, 22 So. 3d 153, 155 (Fla. 1st DCA 2009), which found that “[t]o the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a timely motion for rehearing.”24 Without discussing the Mathieu exception in the revised opinion, the court affirmed the trial court.25

Because the First District ultimately decided Welch simply on the preservation issue without delving into the exception carved by the Fifth District, the First District remains free to disagree with or embrace the Mathieu exception in the future. In the author’s view, the First District should embrace the Mathieu exception in order to promote uniformity of law in Florida.

The Second District Has Not Explicitly Addressed the Preservation Issue
In Esaw v. Esaw, 965 So. 2d 1261, 1263 (Fla. 2d DCA 2008), the Second District agreed with the appellant wife that the final judgment did not contain any factual findings showing the trial court considered the alimony factors under §§61.08(2)(a)-(g), or the valuation of several significant marital assets under §61.075(3)(b).26 Nonetheless, the Second District affirmed the trial court. It reasoned that “[t]he most salient impediment to meaningful review of the trial court’s decision is not the absence of findings, but the absence of a transcript.”27 The court found the reasoning of the First District’s decision in Klette v. Klette, 785 So. 2d 562 (Fla. 1st DCA 2001), to be persuasive. That opinion considered and gave effect to the provision of §59.041, which prohibits reversal of a judgment for an error of procedure unless the appellate court finds the alleged error “has resulted in a miscarriage of justice.”28

Without a transcript, the appellant wife in Esaw could not demonstrate that the trial court’s failure to make specific findings constituted harmful error.29 The court reasoned that while it reversed the lower court in Guida v. Guida, 870 So. 2d 222, 224 (Fla. 2d DCA 2004), for insufficient findings, “Guida contains no holding on [the] issue” of absence of a transcript.30 Since it determined the lack of findings was not a basis for reversal, the Esaw court declined to decide the preservation issue.31 Judge Morris Silberman concurred in the majority opinion, noting that “[b]ecause the Second District has not explicitly addressed the preservation question as discussed in Owens, Mathieu and Broadfoot, litigants should bring the lack of adequate findings to the trial court’s attention at the first available opportunity to try and avoid an appellate determination that the issue has not been properly preserved.”32

The Esaw court avoided the preservation issue for good reasons. By 2008, it was clear that the decisions handed down by the First, Third, Fourth, and Fifth districts had not produced stability and predictability in the Florida legal system. The reasoning underlying the result in Esaw was the most important aspect of the opinion. The Esaw court considered its own decision in Guida and the First District’s decision in Klette, which, unlike Guida, discussed the significance of a lack of a transcript and the harmless error issue. The Esaw court placed much weight on the fact that the Klette court considered §59.041, which prohibits reversal for procedural errors that are not harmful. The concurrence in Esaw tried to inject some stability into the legal system by implicitly encouraging litigants to follow the Broadfoot approach by bringing the lack of findings to the trial court’s attention. It is unclear, however, whether the Second District will follow Broadfoot and Mathieu in subsequent decisions or adopt the reasoning of the Fourth District in Dorsett.

Dorsett Decision and the Fourth District’s Express Disagreement with Broadfoot and Mathieu
In Dorsett, the Fourth District held that the trial court erred not only by adopting the parties’ oral agreement concerning exclusive use and possession of the marital home and child support, but also by failing to “make a single finding as to the valuation of any of the distributed marital property” in violation of §61.075(3).33 Citing Mathieu and Broadfoot as contrary authorities, the court noted that “[e]ven when no trial transcript is provided to the reviewing court, ‘[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.’”34 Finding that the trial court’s failure to make the required statutory findings constitutes reversible error, the Fourth District remanded the cause to the trial court for written statutory findings to facilitate meaningful appellate review.35

Recently, the Fourth District followed Dorsett in deciding Mondello v. Torres, 47 So. 3d 389, 399 (Fla. 4th DCA 2010). In that case, the Fourth District agreed with the wife’s contention that the trial court failed to value the husband’s insurance policy.36 Relying on Mathieu, the husband argued that the wife failed to preserve the issue for appellate review.37 The court rejected this argument, noting that the wife not only complained of the lack of findings, but also contended that the trial court erred when it designated a $0 value to an insurance policy despite readily available evidence to the contrary.38 Based on the holding of Dorsett, the court reversed the trial court, noting that the Fourth District has expressed disagreement with Mathieu.39

Adopting the Broadfoot Approach and Recognizing the Mathieu Exception Will Promote Uniformity
The Fourth District should revisit Dorsett to promote uniformity of the law in Florida.

Dorsett adheres to an inflexible rule whose application does not contribute to the progressive development of the law. Dorsett’s infirmity lies with its result, which fails to provide legal guidance. The Dorsett court made it clear that even in the absence of a transcript, the Fourth District will reverse if the trial court’s decision lacks the required factual findings.40 But it has been settled that a party who fails to provide a transcript cannot demonstrate a harmful error unless the error appears on the face of the record.41 The Dorsett court did not discuss §59.041, which prohibits reversal for procedural errors that are not harmful. Thus, the author concludes that the Dorsett decision did not provide legal guidance since it adopted a rigid rule that does not consider certain factors, such as the lack of a transcript or the harmless error analysis.

Moreover, in Mondello v. Torres, the Fourth District had an opportunity to embrace Broadfoot and Mathieu, but it did not. Instead, it followed Dorsett and expressed disagreement with Mathieu. That closed the door to decide future cases by applying the Broadfoot rule or the Mathieu exception on a case-by-case basis. There are scenarios where the Fourth District would want to reconsider its position by adopting and applying the Broadfood rule or Mathieu exception. The best example is when a litigant fails to provide a transcript. Even though the judgment may lack the required findings, the trial court may have stated its findings and reasoning on the record. A reversal would be inappropriate in that scenario because the appellant would be unable to show that the lack of written findings amounted to a harmful error, but the Fourth District has taken the position that it will remand a case for findings even when a litigant fails to provide a transcript.

The Fifth District has found the Broadfoot approach to be sensible and carved an exception to the rule to allow appellate courts to send cases back for factual findings where the lack of findings hampers meaningful review. Hence, the author urges the district courts to adopt the Broadfoot approach and embrace the Mathieu exception. If the Fourth District decides to revisit Dorsett, that decision will help stabilize the legal system and provide predictability and consistency in applying the law in Florida.

Conclusion
This article’s central claim is that the Florida district courts should speak with one voice by following the Broadfoot approach and embracing the Mathieu exception. There is a need to achieve normative coherence, but unity of principle cannot be achieved until the district courts speak with one voice. Unlike the Fourth District, which expressed disagreement with Broadfoot and Mathieu in applying Dorsett’s holding to future cases, the First and Second districts have left the door open as to whether to follow Broadfoot and Mathieu. Although subsequent panels from the Fourth District must follow Dorsett, which has the force of binding precedent, a future panel may faithfully apply Dorsett’s holding and recommend en banc review,42 thus avoiding the necessity for the Florida Supreme Court’s intervention. Such an en banc decision overruling or revisiting Dorsett will not only provide greater weight in stabilizing the judicial system, it will also provide litigants with greater confidence in predicting the result when the holding is applied to future family law cases.


1 See Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d D.C.A. 2001).

2 Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th D.C.A. 2004).

3 See Welch v. Welch, 34 Fla. L. Weekly D1503, 2-3 (Fla. 1st D.C.A. July 24, 2009) (noting the First District has not recognized the Mathieu exception). But note that the First District withdrew that opinion and did not discuss the Mathieu exception in the revised opinion. See Welch v. Welch, 22 So. 3d 153, 156, reh’g granted (Fla. 1st D.C.A. 2009). Although the Fifth District’s caveat has been known as the Mathieu exception, the Third District’s Broadfoot decision has the same exception. See note 12 and accompanying text. Accordingly, one can conclude that the Broadfoot court carved the exception and the Mathieu court followed suit.

4 See notes 23-25 and accompanying texts.

5 Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th D.C.A. 2005).

6 Esaw v. Esaw, 965 So. 2d 1261, 1263 (Fla. 2d D.C.A. 2008).

7 Dorsett, 902 So. 2d at 950.

8 See Larry R. Fleurantin, Exhaustion of Administrative Remedies in Immigration Cases: Finding Jurisdiction to Review Unexhausted Claims the Board of Immigration Appeals Considers Sua Sponte on the Merits, 34 Am. J. Trial Advoc. 301, 302 (2010). Fleurantin’s article applies Professor Neil MacCormick’s “Three C’s Theory”: consequence, consistency, and coherence, as outlined by Ruggero J. Aldisert et al., Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 1 (2009).

Consequence, consistency, and coherence are three principles or ideals that are critical to judicial institutions. First, a published court decision respects the principle of consequence when it is based on reasoned analysis, as the consequences that flow from the decision affect not only the right of the parties, but also the duty of the appellate court whose function is to set precedents. See id. at 18. Second, a court decision respects the principle of consistency when it is “consistent with valid and binding legal precepts of the legal system,” especially because “the principle of stare decisis puts [appellate judges] under an obligation to follow the holding in deciding future cases involving identical or similar facts.” Id. Third, a court decision respects the principle of coherence if the court’s holding can be applied “in a principled, reasonable, and non-arbitrary fashion” that allows the different intermediate appellate courts to speak in one voice. J.M. Balkin, Understanding Legal Understanding: The Legal Subject and Problem of Legal Coherence, 103 Yale L. J. 105, 116 (1993).

Under Dorsett, any conflicts relating to interpreting the requirement of Fla. Stat. §§61.075 or 61.08 cannot be resolved “in a principled, reasonable, and nonarbitrary fashion,” since all the district courts have not spoken in one voice. Id. Therefore, one can conclude that, of these three principles, it appears that Dorsett’s holding impairs the principle of coherence.

9 Broadfoot, 791 So. 2d at 585-86.

10 See id. at 585. The Broadfoot court noted that as a general rule, claims that were not presented in the first instance to the trial judge will not be considered on appeal.

11 Id. (citations omitted).

12 See id. The Broadfoot court “reserve[d] the right to reverse on account of an absence of findings (whether the point was raised in the trial court or not) if the absence of the statutory findings frustrates this court’s appellate review.” Id. (citations omitted).

13 Roth v. Cortina, 59 So. 3d 163, 166 (Fla. 3d D.C.A. 2011).

14 See note 12.

15 Mathieu, 877 So. 2d at 741.

16 Id.

17 Id. (citing Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d D.C.A. 2001)).

18 See id.

19 Id. at 741 n.1. See also Broadfoot, 791 So. 2d at 585 (referring to the same caveat).

20 Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st D.C.A. 2007).

21 Id.

22 Welch v. Welch, 34 Fla. L. Weekly D1503 (Fla. 1st D.C.A. July 24, 2009).

23 Id. at 2-3.

24 Welch v. Welch, 22 So. 3d 153, 155-56, reh’g granted (Fla. 1st D.C.A. 2009) (citations omitted).

25 See id. at 156.

26 Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d D.C.A. 2008).

27 Id. (citing Klette v. Klette, 785 So. 2d 562 (Fla. 1st D.C.A. 2001).

28 Esaw, 965 So. 2d at 1264.

29 Id.

30 Id. at 1265.

31 See id. n.1.

32 Id. at 1268.

33 Dorsett, 902 So. 2d at 955.

34 Id. at 950 (internal citations omitted).

35 Id. (citations omitted).

36 Mondello v. Torres, 47 So. 3d 389, 399 (Fla. 4th D.C.A. 2010).

37 See id.

38 See id. at 399-400.

39 Id. at 399-400 n.3 (citations and quotation marks omitted).

40 See Dorsett, 902 So. 2d at 950.

41 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).

42 See O’Brien v. State, 478 So. 2d 497 (Fla. 5th D.C.A. 1985).


Larry R. Fleurantin is a member of the Appellate Practice Section of The Florida Bar and holds a B.A. summa cum laude (2000), Florida International University Honors College and J.D. cum laude (2003), University of Florida Levin College of Law. Fleurantin is the managing member of Larry R. Fleurantin & Associates, P.A., in North Miami Beach. The firm concentrates its practice in civil and appellate litigation, with a particular focus on personal injury, car accidents, marital and family law, real estate, foreclosure, and immigration. The author acknowledges Ronald J. Antonin and Woody Clermont for their helpful comments.

This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor; and Chris McAdams, Brandon Christian, and Kristi Rothell, assistant editors.

[Revised: 04-30-2012]