Esaw v. Esaw

• Citation: 965 So.2d 1261
• Decision Date: 05 October 2007
• Docket Number: No. 2D06-1163.,2D06-1163.
• Parties: Mary Alice ESAW, Appellant, v. Albert Earnest ESAW, Appellee.
• Court: Florida District Court of Appeals

965 So.2d 1261

Mary Alice ESAW, Appellant, v. Albert Earnest ESAW, Appellee.

No. 2D06-1163.

District Court of Appeal of Florida, Second District.

October 5, 2007.

Nicholas P. Sardelis, Jr. of Law Offices of Sardelis and Bowles, L.L.P., Sarasota, for Appellant.

Laurie E. Baker of Baker & Paul, Bradenton, for Appellee.

CANADY, Judge.

Mary Alice Esaw, the wife, appeals a final judgment of dissolution of marriage. The wife seeks reversal of the judgment on the ground that the trial court's findings were inadequate and on the ground that the judgment is fundamentally erroneous on its face. For the reasons expressed below, we reject both arguments for reversal and affirm the judgment.

I. Background

The Esaws were married in 1985 and had no children during their marriage. On November 10, 2004, the wife filed a petition for dissolution of marriage. The parties attempted mediation, but no agreement was reached. On January 20, 2006, a final hearing was held. There is no transcript of the hearing in the record, but the record contains a "COURT APPEARANCE RECORD" from January 20, 2006, prepared by the court's clerk and indicating that the trial court ruled on the issues of equitable distribution, alimony, and attorneys' fees. On February 16, 2006, a conference was held. There is no transcript of this conference in the record, but the record contains another "COURT APPEARANCE RECORD" from February 16, 2006, which indicates that corrections were made to valuations in regard to the marital property. It also states "FINAL JUDGMENT PREPARED BY [THE WIFE'S TRIAL ATTORNEY], CORRECTIONS MADE ON FINAL JUDGEMENT BY JUDGE DUNNIGAN." On February 16, 2006, the trial court entered the final judgment of dissolution of marriage.

II. The Claim of Inadequate Factual Findings

The wife argues on appeal that the trial court erred in failing to make specific findings of fact supporting the alimony award and that the trial court erred in failing to value certain marital property when making the equitable distribution determination. She argues that these findings are statutorily required and that therefore the trial court's failure to include them is reversible error.

Section 61.08, Florida Statutes (2004), sets forth the factors for a trial court to consider in determining a proper award of alimony. "The statute requires the trial court to include findings of fact relative to the . . . factors" set forth in the statute. Milo v. Milo, 718 So.2d 343, 344 (Fla. 2d DCA 1998); see § 61.08(1), Fla. Stat. "Failure to include findings of fact as required by section 61.08 is reversible error." Farley v. Farley, 800 So.2d 710, 711 (Fla. 2d DCA 2001). The purpose of these findings "is to assist the appellate court in providing a meaningful review." Milo, 718 So.2d at 344-45.

As for equitable distribution, section 61.075(3)(b) requires the trial court to make specific findings of fact regarding "[i]dentification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset." (Emphasis added.) "The final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence." Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004). "Failure to include the statutorily required findings of fact makes appellate review of the distribution scheme difficult, if not impossible, and requires reversal." Id.

Here, the judgment does not contain any factual findings regarding the alimony factors. See § 61.08(2)(a)-(g). The judgment also omits findings concerning the value of several of the couple's significant marital assets which were subject to equitable distribution. See § 61.075(3)(b).

The absence of findings is coupled here with the absence of a transcript of the hearing. The most salient impediment to meaningful review of the trial court's decision is not the absence of findings, but the absence of a transcript. In Klette v. Klette, 785 So.2d 562 (Fla. 1st DCA 2001), the First District considered whether the lack of findings supporting an alimony award was reversible error where the appellant failed to provide a transcript of the hearing or an acceptable substitute. The court held that a harmless error analysis was mandated and that "[t]he lack of a transcript, or substitute, frustrate[d] this requirement." Id. at 564. Therefore, the court held "that appellant . . . failed to demonstrate reversible error." Id. (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979)); see also Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006) (citing Klette and recognizing that "[t]he failure to make the required findings may constitute harmless error when our review is not hampered by their absence"). But see Dorsett v. Dorsett, 902 So.2d 947, 950 (Fla. 4th DCA 2005) (holding 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" (internal citations omitted) (alterations in original)); Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999) (same).

The reasoning of Klette is persuasive. It takes seriously the provision of section 59.041, Florida Statutes (2004), that "[n]o judgment shall be set aside or reversed . . . for error as to any matter of . . . procedure, unless" it is apparent "that the error complained of has resulted in a miscarriage of justice." Under section 59.041, "[i]n a civil case, an error is reversible — that is, harmful error — [only] where `it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.'" Florida Institute for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 979 (Fla. 2d DCA 2006) (quoting Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979)). The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is "usually fatal" to the appellant's claims. Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). Without such a record, it will ordinarily be impossible for the appellant to establish that an asserted error is harmful.

In Guida, where we reversed for insufficient findings, the court made a passing reference to the absence of a transcript and statement of the evidence. 870 So.2d at 223. The opinion in Guida does not, however, discuss the significance of the deficiencies in the record. There is no suggestion in Guida that the court considered the harmless error issue which provided the basis for the decision in Klette. Accordingly, Guida contains no holding on that issue. See State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930) ("[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.").

We acknowledge that there are circumstances in which a claim of inadequate findings can lead to reversal even in the absence of a transcript or appropriate substitute. In particular, an award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings. Giltex Corp. v. Diehl, 583 So.2d 734, 735-36 (Fla. 1st DCA 1991), held that even though a transcript and stipulated statement of the evidence were lacking, an order awarding attorney's fees should be reversed "because the trial court's order [was] fundamentally erroneous on its face for failure to make the express findings required by" Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). This court has followed the reasoning of Giltex. See Baratta v. Valley Oak Homeowners' Ass'n at the Vineyards, Inc., 891 So.2d 1063, 1065-66 (Fla. 2d DCA 2004); Bayer v. Global Renaissance Arts, Inc., 869 So.2d 1232, 1232 (Fla. 2d DCA 2004).

We have not, however, held that an order which lacks a finding required under section 61.08 or 61.075 is fundamentally erroneous simply by virtue of the technical deficiency in the trial court's findings. There is no general rule that the lack of statutorily required findings constitutes fundamental error. In the context of the admissibility of child hearsay statements, the supreme court has held that "the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error." State v. Townsend, 635 So.2d 949, 959 (Fla.1994). Furthermore, in the instant case the wife has not argued that the deficiencies in the trial court's findings rendered the judgment fundamentally erroneous on its face.

Here, in the absence of a transcript or appropriate substitute, the wife is unable to demonstrate "that the error complained of has resulted in a miscarriage of justice." § 59.041. "[T]he record brought forward by the [wife] is inadequate to demonstrate reversible error." Applegate, 377 So.2d at 1152. Indeed, the wife has made no attempt to show how the inadequacy of the findings constitutes harmful error. Because the wife did not provide a transcript or appropriate substitute and did not demonstrate harmful error, we will not reverse the judgment on the basis of the wife's claim that the findings are inadequate.¹

III. The Claim of Fundamental Error On the Face of the Judgment

The wife also argues that the trial court erred in concluding that the wife had the burden to prove that she was unable to work and in imputing income to the wife. She claims that the law provides that the party asserting that the other spouse is voluntarily unemployed has the burden of proof on the issue of imputation of income. The wife asserts that this portion of the final judgment is fundamentally erroneous on its face. See Hoirup v. Hoirup, 862 So.2d 780, 782 (Fla. 2d DCA 2003) ("[W]here a trial transcript...