Gregory v. Gregory, 73--746
| Decision Date | 06 February 1974 |
| Docket Number | No. 73--746,73--746 |
| Citation | 289 So.2d 468 |
| Parties | Mary Elizabeth GREGORY, Appellant, v. William A. GREGORY, Jr., Appellee. |
| Court | Florida District Court of Appeals |
George W. Phillips, Tampa, for appellant.
David A. Maney of Gordon & Maney, Tampa, for appellee.
ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL APPENDIX
In this interlocutory appeal from a postfinal judgment order, the appellant-wife claims error in the action of the trial judge, taken after extensive evidentiary hearings, in changing the permanent custody of the thirteen-year-old son of the parties, from the wife, as provided in a stipulation-property settlement agreement and the final judgment of dissolution entered 17 months before, to the husband. Our consideration of the merits of the interlocutory appeal is stymied, indeed precluded at this stage of the proceeding, by the fact that the appendices of the parties, which form the only real 'record' before us under Fla.App. Rule 4.2, subd. d, 32 F.S.A., do not contain the entire contents of the hearings upon which the Chancellor based his decision.
In this posture of the case, we could, as have so many prior decisions, merely indulge the 'presumption of correctness,' conclusively presume that the order on interlocutory appeal is supported by those portions of the testimony which are Not before us, at least figuratively inform the appellant that the inadvertence of her counsel has negated her right to appellate review, and affirm the order below. We decline to take this course.
The cases which apply these principles and affirm orders or judgments below because of insufficient records must number in the hundreds. In many instances, e.g., Curtiss-Wright Corp. v. King, Fla.App.1968, 207 So.2d 294; Maine Ins Co. v. Raser, Fla.App.1970, 240 So.2d 163; Reichek v. Fla. Bond & Mortgage Co., Fla.App.1970, 237 So.2d 83, cert. denied, Fla.1970, 240 So.2d 644, it would seem that any arguable obstacle to a consideration of the case on its merits caused by the non-existence of documents or portions of transcripts in the Appellate record could have been overcome by a simple order, or even a telephone call to the lower court clerk or to counsel. Fla.App. Rule 3.6, subd. l specifically permits this to be done. It provides, in part,
'If anything is omitted from the record-on-appeal by error or accident, the parties by stipulation, or the lower court, either before or after the record is transmitted to the Court, Or the Court on a proper suggestion or On its own initiative, may direct that the omission be corrected.'
The failure of the courts to adopt such a procedure has led to an unfortunate but wide-spread belief that appellate courts 'do not like' and 'will do anything to avoid' deciding cases on their merits; as well as to the well-justified belief that appellate practice--and particularly the designation of the contents of the record on full appeal and the preparation of appendices on interlocutory appeal--is the last remaining aspect of litigation in which technicality may be supreme and in which a simple error may result in irremedial doom for the client. We see no reason why either appellate decision-making or appllate practice should differ in any substantial way from the manner in which cases are...
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Langdon v. State, 3D05-2791.
...of Benjamin Nathan Cardozo 214 (Margaret E. Hall ed.1947)), approved, 698 So.2d 1224 (Fla. 1997). 12. As stated in Gregory v. Gregory, 289 So.2d 468, 469 (Fla. 2d DCA 1974), quoted in Hill v. Hill, 778 So.2d 967, 969 n. 6 (Fla.2001)(Pariente, J., specially concurring), holding that an omiss......
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Sebree v. Salcedo
...rights of the parties." It is apparent that the intent of the rule is that appeals be decided on their merits. Cf. Gregory v. Gregory, 289 So.2d 468 (Fla. 2d DCA 1974) (holding that in order for the case to be decided on other than procedural grounds, the court would sua sponte order the ap......
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A. M. L.'s Adoption, In re, 73--410
...the welfare of the child as well as the presumption of correctness which attends the trial judge's order. Recently, in Gregory v. Gregory, Fla.App.2d 1974, 289 So.2d 468, this court, speaking through Circuit Judge Alan R. Schwartz, declined to pursue the easy course. There we allowed the ap......
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Miami Herald Pub. Co. v. Payne
...whether the appellant-husband did or did not make such a concession before the trial judge. In the connection see: Gregory v. Gregory, 289 So.2d 468 (Fla.2nd D.C.A.1974); In re Adoption of A.M.L., 297 So.2d 840 (Fla.2nd Thereafter, the trial judge has filed a certified response which reads,......