by Jonathan M. Streisfeld
Every diligent trial attorney strives to prevent grounds for reversal on appeal. Especially in the divorce arena, where the personal lives of the spouses and children have been turned upside down by a trial, the pressure to bring finality to the process is extreme. Adding an appeal only makes things worse, emotionally and financially. A survey of Florida appellate decisions involving divorce decrees reveals one of the common grounds for reversals of final judgments is the lack of requisite findings of fact, causing remands that could surely have been avoided. The Fourth District Court of Appeal addressed the required attention to detail when it held:
[I]t is the responsibility of the lawyers and the trial court to resolve all of the issues in a dissolution matter, with meticulous attention to the details required by [C]hapter 61 and current case law. In the absence of such attention, needless, expensive post-trial, and appellate activity will occur . . . . 1
Reversals for further trial court proceedings will no doubt frustrate clients, especially when the appellate opinion reflects the appellate panel’s clear indication that the reversal and costs of appeal could have been avoided if the findings were merely included in the final judgment. This article will point out some pitfalls to be avoided and assist with the preparation of final judgments to limit appellate reversals for missing findings.
Readers should not assume this article covers every factual finding required in every context; however, the author provides below a list of necessary factual findings based on statutes and case law to assist judgment preparation for many common and some uncommon issues. Some sections in F.S. Ch. 61 expressly require the court to “find” or “determine” certain facts or circumstances to exist. For many such sections, there are no reported cases discussing whether failure to include an express factual finding will require reversal. It is apparent that appellate courts require written findings where the Florida Legislature includes the word “find” in the statute. Best practices suggest including findings in an effort to avoid being a case of first impression with regard to statutes for which there are no appellate decisions. Even if counsel believes that the trial judge made erroneous findings, including those erroneous findings in the judgment should assist in bringing the claimed error to the appellate court’s attention. Also, since the Florida Legislature and courts continue to act, there is no substitute for updating your research in preparing for trial or drafting a proposed final judgment. Finally, the form orders included in the Florida Family Law Rules of Procedure provide a great resource.
Is There Evidence to Support the Finding?
Findings of fact cannot be made without supporting competent, substantial evidence. Numerous appellate decisions indicate that the failure to present evidence precludes reversal.2
Remand for evaluation of record evidence supporting a ruling is surely appropriate. However, appellate decisions ordering new evidentiary hearings can be troublesome, especially where the record clearly reflects that the appellant neglected (or intentionally failed) to prepare the issue for trial. Such orders give that party another bite at the apple. Detailed trial court findings reflecting the conduct that caused the court either not to address the issue or rule against the appellant due to the lack of record evidence should thwart remand in that situation.
As an example, in dealing with equitable distribution, the failure to put on evidence as to the value of an asset or liability prevents the inclusion of findings regarding the distribution of that asset or liability. Appellate courts have affirmed the equitable distribution without remand for valuation of the missing asset or liability and without adjustment of the distributions.3 Thus, there may be no ability to correct the error.
Failure to Move for Rehearing Below
There is conflict among the district courts of appeal regarding whether a party can appeal the trial court’s failure to include required factual findings if that party has not filed a timely motion for rehearing pursuant to Florida Family Law Rule of Procedure 12.530, which adopts Florida Rule of Civil Procedure 1.530. The First, Third, and Fifth district courts of appeal have ruled that a motion for rehearing is required to preserve the issue for appeal — Fourth District case law conflicts.
In Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001), the court explained this rule of unpreserved error by stating findings are to be requested at the trial level, presumably during the final hearing or in the proposed judgment. If the judgment lacks findings, rehearing should be sought for this purpose.4 The Third District established the following standard:
As a general rule, we decline to consider claims which were not presented in the first instance in the trial court. See, e.g., Rokicki v. Rokicki, 660 So. 2d 362, 364 (Fla. 3d DCA 1995). In this case there is no indication that the need for statutory findings was called to the attention of the trial court.
Where, as here, the basis for the award is reasonably clear and supported by the record, we decline to reverse on account of the absence of statutory findings. We do, of course, reserve 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. See Levi v. Levi, 780 So. 2d 261, 263 (Fla. 3d DCA 2001); McCarty v. McCarty, 710 So. 2d 713, 715 (Fla. 1st DCA 1998).5
Dorsett v. Dorsett, 902 So. 2d 947 (Fla. 4th DCA 2005), is in conflict. That court held that a lack of required findings of fact creates fundamental error on the face of the judgment requiring reversal and remand for the necessary findings.6 The Second District recently noted in Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007), that it has yet to weigh in on this issue.
If rehearing is not sought, the trial court is powerless to alter or amend the judgment to include the required findings of fact absent relinquishment of jurisdiction (discussed below). Appellate courts have, on occasion, relaxed this rule where the record is deemed sufficient to determine whether the evidence supports the ruling, and neither party sought findings at trial or via a motion for rehearing.7 Avoid risk by requesting the findings at trial or in your proposed final judgment. Seek rehearing if the judgment lacks required findings, especially if the trial judge authored the final judgment.
Rule 1.530 contains a 10-day limitation from the date the judgment is rendered to move for rehearing, or to amend or alter the judgment. If a motion is not served, and the court has not otherwise acted sua sponte during this 10-day period to include the requisite findings, the trial court is barred by rule from taking action.8 The same is true if the court has already denied rehearing and the 10-day period later expires.9
Rule 1.540 Motions Distinguished
Rule 1.530’s 10-day period does not affect motions available under Fla. R. Civ. P. 1.540,10 but a party must be careful not to confuse the bases for moving for relief under Rule 1.530 versus Rule 1.540(b).11 Rule 1.540(a) does permit correction of clerical mistakes “arising from oversight or omission” at any time either on the trial court’s initiative or in response to a motion. Clerical mistakes are those which do not affect the substance of the judgment. The Levy court rejected the husband’s Rule 1.540(a) argument because “the amendment under review added new findings of fact and altered the plan of distribution.”12 During an appeal, clerical mistakes must be corrected before the “record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.”13
Relinquishment of Jurisdiction
Leave of the appellate court to correct clerical and other errors is typically accomplished by a motion to relinquish jurisdiction. The appellate court relinquishes jurisdiction to the trial court which is lost during the appeal. The trial court rules on the relinquished issue(s) to assist the appellate court, and the new order is given to the appellate court to be considered in the pending appeal. Relinquishment of jurisdiction is also available to address matters for which a Rule 1.530 motion was required.14
Use of the relinquishment procedure should be encouraged especially when counsel recognizes that missing findings of fact negatively impact the appellate court’s ability to decide an appellate issue. A joint motion should be received favorably by the appellate court. Unilateral motions are permitted and may legitimately expose the opposing side’s unwillingness to act reasonably and his or her motives on appeal.
Impact of the Lack of a Record
Many appellate opinions address the failure to supply a transcript of the hearing which gave rise to the appealed order, concluding that the courts are constrained to affirm. However, there is conflict among the district courts on this issue. Appeals of final judgments come to the appellate court “clothed with the presumption of correctness,” and it is necessary to establish an abuse of discretion or erroneous application of a rule of law.15 Noting contrary authority in the Broadfoot line of cases discussed above, the Dorsett court observed that the lack of a transcript does not preclude appellate review of an error of law appearing on the face of the judgment.16 The Dorsett court reversed and remanded the ruling regarding the parties’ purported agreement to the wife’s use and possession of the former marital home because it called for the wife and son to vacate the home when the child was still a minor. The order did not contain findings as to how such an arrangement would not harm the child’s interests.17 The court also reversed for missing findings supporting deferring the effectiveness of an income deduction order and the equitable distribution.18 The court specifically indicated that the trial court could take additional testimony or rule on the record, as it deemed appropriate. Therefore, the lack of a hearing transcript will not always prevent reversal on appeal.
Esaw reflects a different view as to fundamental error, at least in the context of alimony and equitable distribution rulings. Noting the contrary position taken by the Fourth District in Dorsett, the Second District appears to have aligned itself with the First District. The Esaw judgment did not contain factual findings for either alimony or equitable distribution. The Second District observed that the lack of a transcript was the more salient impediment than a lack of findings, and proceeded to conclude that application of a harmless error analysis, under F.S. §59.041, was warranted. Under that statute, error is harmful, and therefore reversible, if it is reasonably probable that a result more favorable to the appellant would have been reached if error had not been committed.19 Without the transcript, it is ordinarily impossible for the appellant to establish harmful error.20 Acknowledging that circumstances exist in which a claim of inadequate findings can lead to reversal in the absence of a transcript, i.e., an award of attorneys’ fees without adequate findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), the Second District concluded that a lack of findings does not create fundamental error in the context of alimony and equitable distribution.21 Since the wife did not argue fundamental error on the face of the judgment as a result of deficient findings, and there was no transcript, the Second District affirmed.22
Finality of Judgments Prevents New Findings
Once the judgment becomes final, the rights of the parties determined by the judgment become fixed as a matter of law.23 A judgment becomes final once the time period for filing an appeal has expired and if there are no motions pending pursuant to Fla. R. Civ. P. 1.530. Thereafter, the trial court is permitted to clarify that which is implicit in the final judgment and, of course, enforce the judgment.24 No property determination can occur after the judgment is rendered unless there is a specific reservation of jurisdiction as to specific property.25 Trial courts are also not permitted to amend a judgment when it is apparent that the relief requested would require a modification petition. The distinction between clarification and modification is discussed in Pomeranz v. Pomeranz, 961 So. 2d 1068 (Fla. 4th DCA 2007). The court explained:
A modification seeks to change the status quo and seeks a new benefit for one party. Dickinson v. Dickinson, 746 So. 2d 1253, 1254 (Fla. 5th DCA 1999). On the other hand, a clarification does not seek to change rights and obligations, but to make a judgment more clear and precise. Fussell v. Fussell, 778 So. 2d 517, 518 (Fla. 1st DCA 2001). In order for the trial court to modify a final judgment, the moving party must present the issue by appropriate pleadings. McDonald v. McDonald, 732 So. 2d 505, 506 (Fla. 4th DCA 1999).
The Fourth District affirmed the clarification of ambiguous language regarding whether the wife had final authority to determine which school the children would attend.26 However, it reversed the ruling on a motion to compel, which granted the wife ultimate authority for decisions regarding the health, education, and general welfare of the children, concluding that this was a modification of the judgment because it conferred a new benefit to the wife.27
Required Written Findings
Examples, organized by subject matter, of required express findings which can be utilized for final judgment preparation are provided below. The list is not exhaustive. Consult current case law, statutes, and the Florida Family Law Rules of Procedure and Forms.
- Specific written findings identifying, valuing, and distributing marital and nonmarital assets and liabilities are required.28
- If an unequal distribution is ordered, the “court must specifically address the facts pertinent to each statutory consideration to support its decision to distribute marital assets in an unbalanced manner.”29
- Value of enhancement and appreciation of nonmarital assets during the marriage, including which portion is attributable to marital labor, must be explained.30
- Alimony determinations require factual findings relative to the F.S. §61.08(2) factors.31
- Reduction or termination of alimony based on specific findings that the recipient spouse has entered into a “supportive relationship” with another individual, i.e., cohabitation, with due consideration given to the 11 nonexclusive statutory factors.32
Income for Alimony and Child Support
- Actual income for alimony and child support purposes requires factual findings regarding a spouse’s probable and potential earnings level, sources of actual and imputed income, and any adjustments to income.33
- F.S. §61.30(2)(b) specifies considerations to be taken into account when imputing income for child support, and case law indicates that those same factors apply to imputation for alimony purposes.34
- Child support determinations must contain factual findings sufficient to allow the appellate court to ascertain the basis of the child support calculations.35
- Awards which deviate from the statutory support guidelines by more than five percent require a written finding explaining why ordering payment of the guideline amount would be unjust or inappropriate.36
- When providing for health care insurance coverage for a minor child pursuant to F.S. §61.13(1)(b), a specific finding that the coverage is reasonably available is required.37
Life Insurance as Security
- A life insurance requirement to secure alimony and child support payments requires findings regarding the special circumstance(s) generating need to protect the recipient, as well as to the amount of insurance needed, the cost of such insurance, and the insurability of the party being ordered to obtain it.38
Child Custody and Visitation
- Rotating custody determinations, pursuant to F.S. §61.121 (2007), require findings indicating court’s consideration of factors established in case law and the statutory finding that rotating custody is in the best interest of the child.39
- If one parent is awarded sole parental responsibility for a minor child, the court must include a finding that shared parental responsibility would be detrimental to the child.40
- A modification order regarding visitation requires findings that a) a material change in circumstances has arisen since the prior visitation order; and b) the welfare of the child will be promoted by the modification.41
- If an order suspends visitation, the court must set forth specific requirements or standards necessary for the parent to restore visitation rights.42
- Minor child’s visitation travel expenses in relocation cases require findings justifying the decision as it relates to the parties’ respective financial circumstances.43
Enforcement and Income Deduction Orders
- Enforcement orders providing for alimony or child support require findings regarding the obligor’s imputed or actual present ability to comply with the order.44 This is also required in the final judgment itself.45
- F.S. §61.1301(1)(c) provides alternative written findings that must be made in the context of orders delaying the effective date of an income deduction order upon good cause shown, including acting to suspend and modify an existing income deduction order.46
- Contempt orders must contain findings
that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.47
- If incarceration or another sanction to coerce compliance with a support order is ordered, “a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding” is required.48
- A writ of bodily attachment must include specific information delineated in F.S. §61.11(2) for entry into the Florida Crime Information Center telecommunications system.
- Attorneys’ fees rulings must include findings regarding both the traditional findings as to reasonableness of hourly rates charged and the number of hours expended, as well as the parties’ respective needs and ability to pay.49
Taking responsibility to comb through the relevant statutes, rules, and case law should eliminate the risks of reversal and remand for missing findings of fact. As highlighted in this article, merely using the buzz word language may not be enough. If missing findings are discovered in the judgment, there are options to eliminate error before the appeal. Other options are available even after the appeal has been filed. These options exist to promote a process which provides fair and complete relief to litigants, and to avoid repetitive appeals.
1 Donsky-Levine v. Levine, 658 So. 2d 1023 (Fla. 4th D.C.A. 1995).
2 See Feger v. Feger, 850 So. 2d 611, 615-616 (Fla. 2d D.C.A. 2003) (as to failure to put on evidence of need for alimony).
3 See Ledea Genaro v. Genaro, 963 So. 2d 749 (Fla. 4th D.C.A. 2007).
4 Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d D.C.A. 2001).
5 See also Owens v. Owens, 2007 WL 2456208 (Fla. 1st D.C.A. 2007); Mathieu v. Mathieu, 877 So. 2d 740 (Fla. 5th D.C.A. 2004).
6 Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th D.C.A. 2005).
7 See Alpha v. Alpha, 885 So. 2d 1023 (Fla. 5th D.C.A. 2004).
8 See Levy v. Levy, 900 So. 2d 737, 745-746 (Fla. 2d D.C.A. 2005).
10 Fla. Fam. L. R. P. 12.540 states that Fla. R. Civ. P. 1.540 governs in dissolution of marriage cases, “except that there shall be no time limits for motions based on fraudulent financial affidavits in marital or paternity cases [under Rule 1.540].” This exception was added to eliminate the one-year limitation period previously in effect. Romero v. Romero, 959 So. 2d 333, 337 (Fla. 3d D.C.A. 2007).
11 See Herskowitz v. Herskowitz, 513 So. 2d 1318, 1319 (Fla. 3d D.C.A. 1987) (Rule 1.530 permits court to revisit the judgment to correct any error of law while Rule 1.540 is more restrictive).
12 Levy, 900 So. 2d at 746.
13 Fla. R. Civ. P. 1.540(a).
14 See Jain v. Jain, 915 So. 2d 711 (Fla. 4th D.C.A. 2005); Avatar Development Corp. v. DeAngelis, 944 So. 2d 1107 (Fla. 4th D.C.A. 2006).
15 Dorsett, 902 So. 2d at 950.
17 Id. at 952.
18 Id. at 953-954.
19 Esaw, 965 So. 2d at 1264-65.
21 Id. at 1265.
22 Id. The court specifically noted that it did not consider the preservation issue regarding the wife’s failure to file a motion for rehearing or to otherwise bring the lack of findings to the trial court’s attention because the lack of findings was not a basis for reversal under the circumstances.
23 See Encarnacion v. Encarnacion, 877 So. 2d 960, 963 (Fla. 5th D.C.A. 2004).
24 Id. at 963.
25 Id. “Retaining jurisdiction ‘to enter such other and further orders as the [c]ourt deems necessary and just in the premises’ has been held to be an insufficient reservation of jurisdiction to later re-adjudicate property rights.” Solmo v. Friedman, 909 So. 2d 560, 565 (Fla. 4th D.C.A. 2005).
26 Pomeranz, 961 So. 2d at 1071.
27 Id. at 1069-1070.
28 Fla. Stat. §61.075(3); Crooks v. Crooks, 967 So. 2d 969 (Fla. 4th D.C.A. 2007).
29 Parham v. Parham, 968 So. 2d 716, 717 (Fla. 2d D.C.A. 2007) (quoting Feger, 850 So. 2d at 615).
30 Fla. Stat. §61.075(5)(a)(2); Hall v. Hall, 962 So. 2d 404 (Fla. 2d D.C.A. 2007).
31 Yauch v. Yauch, 901 So. 2d 920, 922 (Fla. 2d D.C.A. 2005).
32 Fla. Stat. §61.14(1)(b); Buxton v. Buxton, 963 So. 2d 950 (Fla. 2d D.C.A. 2007).
33 Blackmon v. Blackmon, 969 So. 2d 426 at *2 (Fla. 1st D.C.A. 2007).
34 Fla. Stat. §61.08(1) (as to alimony); Fla. Stat. §61.30(2)(b); Blackmon v. Blackmon, 969 So. 2d 426 at *2 (Fla. 1st D.C.A. 2007). But see Fulmer v. Fulmer, 961 So. 2d 1081 (Fla. 1st D.C.A. 2007) (concluding remand not necessary for alimony determination based on competent substantial evidence supporting denial of permanent alimony).
35 Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st D.C.A. 2002).
36 Fla. Stat §61.30(1)(a); Thyrre v. Thyrre, 963 So. 2d 859 (Fla. 2d D.C.A. 2007).
37 Calderon v. Calderon, 730 So. 2d 400, 402 (Fla. 5th D.C.A. 1999).
38 Byers v. Byers, 910 So. 2d 336, 346 (Fla. 4th D.C.A. 2005); Fla. Stat. §61.08(3).
39 Hosein v. Hosein, 785 So. 2d 703 (Fla. 4th D.C.A. 2001).
40 Fla. Stat. §61.13(2)(b)2; Schram v. Schram, 932 So. 2d 245 (Fla. 4th D.C.A. 2005).
41 Ross v. Botha, 867 So. 2d 567, 571 (Fla. 4th D.C.A. 2004).
43 Christ v. Christ, 854 So. 2d 244 (Fla. 1st D.C.A. 2003) (applying Fla. Stat. §61.30(11)(a)11 (2001)).
44 Fla. Stat. §61.14(5)(a); Alois v. Alois, 937 So. 2d 171 (Fla. 4th D.C.A. 2006).
45 Ruiz v. Ruiz, 821 So. 2d 1112 (Fla. 3d D.C.A. 2002).
46 Dorsett, 902 So. 2d at 953-954; Ennis v. Ennis, 819 So. 2d 1007 (Fla. 5th D.C.A. 2002).
47 Fla. Fam. L. R. P. 12.615(d)(1); Orsini v. Orsini, 909 So. 2d 558 (Fla. 4th D.C.A. 2005).
48 Fla. Fam. L. R. P. 12.615(e).
49 Fla. Stat. §61.16(1); Levy, 900 So. 2d at 747-749; Schwartz v. Schwartz, 965 So. 2d 832, 833 (Fla. 4th D.C.A. 2007).
Jonathan M. Streisfeld is a partner with The Kopelowitz Ostrow Firm, P.A., in Ft. Lauderdale, and is a member of the Appellate Practice Section’s Executive Council. He received his B.S. from Syracuse University and J.D. from Nova Southeastern University. He focuses his appellate practice in the civil and family law practice areas.
This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.