BRADLEY ENGLE v. MICHELLE K. ENGLE ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRADLEY B. ENGLE, )
)
Appellant, )
)
v. ) Case No. 2D17-620
)
MICHELLE K. ENGLE, )
)
Appellee. )
)
Opinion filed July 3, 2019.
Appeal from the Circuit Court for Lee
County; John S. Carlin, Judge.
Brian J. Kruger and Luis E. Insignares
of Luis E. Insignares, P.A., Fort Myers,
for Appellant.
Toni A. Butler of Alderuccio & Butler,
LLC, Naples, for Appellee.
SLEET, Judge.
Bradley B. Engle, the Former Husband, challenges the final judgment of
dissolution of his marriage to Michelle K. Engle, the Former Wife. We affirm without
comment the portions of the final judgment that dissolve the parties' marriage and set
forth the equitable distribution of the parties' assets and liabilities. But we reverse the
portion of the final judgment that awarded the Former Wife permanent periodic alimony
due to the trial court's failure to make the findings required by section 61.08(8), Florida
Statutes (2016), and we remand with instructions that the trial court make the statutorily
required findings.
Section 61.08(8) provides that "[p]ermanent alimony may be awarded
following a marriage of long duration if such an award is appropriate upon consideration
of the factors set forth in subsection (2)." But "[i]n awarding permanent alimony, the
court shall include a finding that no other form of alimony is fair and reasonable under
the circumstances of the parties." Id. (emphasis added); see also Vinsand v. Vinsand,
179 So. 3d 366, 369 (Fla. 2d DCA 2015) ("[T]he trial court failed to make a finding that
no other form of alimony was fair or reasonable under the circumstances of this case.
We note that such a finding is now statutorily required . . . ."). A trial court's failure to
make the required findings is reversible error. See, e.g., Velez v. Montalvo-Velez, 253
So. 3d 117, 118, 121 (Fla. 2d DCA 2018) ("Because the trial court . . . failed to make the
express finding mandated by section 61.08(8) . . . we reverse the portion of the final
judgment related to alimony. . . . Even if this finding is implicit in the court's ruling given
the length of the marriage, the former[] wife's need for alimony, and the former
husband's apparent ability to pay alimony, we must reverse as to this issue."); Jordan v.
Jordan, 199 So. 3d 343, 345 (Fla. 4th DCA 2016) ("The trial court did . . . fail to make
the requisite finding that no other form of alimony would be fair and reasonable. . . .
That finding might be implicit in the trial court’s conclusion; nevertheless, the statute
requires the finding to be made. We therefore reverse and remand the case for this
finding, which the trial court will no doubt make."); Winder v. Winder, 152 So. 3d 836,
841 (Fla. 1st DCA 2014) (reversing alimony award "because the trial court failed to
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expressly find that no other form of alimony would be appropriate before awarding
permanent alimony").
The Former Wife, however, maintains that the Former Husband has not
preserved this argument for appeal because he did not raise it in the trial court by way
of a motion for rehearing. We do not agree. Such a preservation requirement is not
supported by statute or rule of procedure. In chapter 61 the legislature provides clear
instructions to trial courts to make specific mandatory findings of fact. But the
legislature did not include a provision requiring a motion for rehearing to preserve a
challenge to a lack of statutory findings. Nor has the Florida Supreme Court or the rules
committee placed such a requirement upon family law litigants.
We recognize that all of the other districts have at one time held that a
party must first bring a trial court's failure to make statutorily required findings of fact to
the attention of the trial court by way of a motion for rehearing. See, e.g., Farghali v.
Farghali, 187 So. 3d 338, 340 (Fla. 4th DCA 2016) (adopting the rule that a party must
first challenge in the trial court the adequacy of the trial court's findings in family law
cases), receded from by Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018); Owens v.
Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007) (holding that appellant's argument
that final judgment lacked sufficient findings was not preserved for appellate review
because appellant did not raise it "in a motion for rehearing or by other means available
in the trial court"); Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004) ("[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.");
Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001) (holding that the
former husband failed to preserve his challenge to the trial court's failure to make the
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requisite findings because "there is no indication that the need for statutory findings was
called to the attention of the trial court").1 However, during the pendency of this appeal,
the Fourth District receded from its decision in Farghali and held—as we do here—that
"the failure to comply with the statute's requirement of factual findings is reversible error
regardless of whether a motion for rehearing is filed." Fox, 262 So. 3d at 791.2
In coming to this conclusion, we first point out that the line of cases
requiring a motion for rehearing to preserve the failure to make factual findings—which
continues to be good law in the First, Third, and Fifth Districts—stems from the case
Ascontec Consulting, Inc. v. Young, 714 So. 2d 585, 587 (Fla. 3d DCA 1998), which
simply does not state that proposition.3
The first Florida case requiring parties to raise a trial court's failure to
make statutorily required findings in a motion for rehearing in order to preserve the error
for appellate review was Broadfoot, 791 So. 2d at 585, wherein the Third District held
1To the extent that these opinions address different statutes within chapter
61 than the one implicated in the instant case, the rule we adopt today applies to any
provision of chapter 61 that requires the trial court to make factual findings.
2In Fox, 262 So. 3d at 793, the Fourth District interpreted this court's
opinion in Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007), as implicitly approving
the preservation rule set forth in Broadfoot and its progeny. However, this court's
opinion in Esaw stopped short of adopting that rule as is evidenced by Judge
Silberman's concurrence, in which he offered advice of the best practices for
practitioners to take in such cases "because this court has not explicitly addressed the
preservation question as discussed in Owens, Mathieu, and Broadfoot." 965 So. 2d at
1268 (Silberman, J., concurring); see also B.K. v. S.D.C., 122 So. 3d 980, 981 (Fla. 2d
DCA 2013) ("While other district courts have required parties complaining on appeal
about inadequate findings in dissolution cases to bring the alleged defect to the trial
court's attention in a motion for rehearing in order to preserve the issue for appeal, this
court has not yet decided the preservation issue in the broader context." (citing Esaw,
965 So. 2d at 1265 n.1)).
3TheFirst District's Owens opinion relies on the Fifth District's Mathieu
opinion and the Third District's Broadfoot decision. 973 So. 2d at 1170. Mathieu relies
solely on Broadfoot. 877 So. 2d at 741.
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that "[t]he time to request findings is when the case is pending in the trial court." To
support this proposition, the Third District cited Reis v. Reis, 739 So. 2d 704, 705 (Fla.
3d DCA 1999), and Ascontec, 714 So. 2d at 587. However, neither Reis nor Ascontec
involved a trial court's failure to make statutorily required factual findings. Rather, both
cases addressed claims that the trial court waited too long after an evidentiary hearing
to issue its written order, calling into question the trial court's ability to correctly recall the
details of the hearing.
In Reis, the former husband in a dissolution case "claim[ed] there should
be a reversal because of an unreasonable time delay between the final hearing and the
entry of the order on appeal. The former husband essentially argue[d] that he [wa]s
entitled to a reversal and new trial solely on the basis of an [eight]-month delay." 739
So. 2d at 705. The Third District disagreed with the former husband and relied on its
prior holding in Ascontec as follows:
We reject th[e former husband's] claim on the authority of
Ascontec . . . . The former husband's assertion is in essence
that "by reason of the passage of time, the trial court's
recollection of the proceedings had become faulty . . . [,]"
[Ascontec, 714 So. 2d] at 587 (citations omitted), and that as
a consequence he is entitled to a new trial. As we explained
in Ascontec, "such a request must be made in the first
instance to the trial judge." Id.Reis, 739 So. 2d at 705.
In Ascontec, the appellant initiated suit to recover a loan it had made to a
joint venture. 714 So. 2d at 586. "The [trial] court ruled that the joint venture partners
were entitled to an accounting and appointed a certified public accountant for that
purpose. After receiving the accountant's report and conducting a further evidentiary
hearing, the trial court ruled in favor of [appellee]." Id. On appeal, Ascontec argued
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that there was an unreasonable delay between the
evidentiary hearing on the accountant's report and the trial
court's issuance of its findings of fact and conclusions of law
twenty-two months later . . . [and] that where there is a
lengthy delay between the evidentiary hearing and the entry
of the written order, the aggrieved party is entitled to a new
evidentiary hearing as a matter of law.
Id. at 587. In addressing the specific issue of whether Ascontec was entitled to a new
evidentiary hearing due to a delay in the trial court's issuing its written order, the Third
District concluded as follows:
This issue is not preserved for appellate review
because Ascontec did not present this request in the first
instance to the trial court. Here, Ascontec claims that by
reason of the passage of time, the trial court's recollection
of the proceedings had become faulty . . . . Ascontec is
arguing in essence for a new trial, and such a request must
be made in the first instance to the trial judge. See Fla. R.
Civ. P. 1.530(a).
Id. (emphasis added) (footnote omitted). As such, neither Ascontec nor Reis involved a
trial court's failure to make statutorily required factual findings in a dissolution
proceeding, and therefore neither case held that a trial court's failure to do so had to first
be raised in a motion for rehearing to be preserved for appellate review. Instead, those
cases involved appellants seeking new trials, and their holdings turned on the specific
Florida Rule of Civil Procedure 1.530 provisions that address the trial court's authority to
grant a new trial.4
Despite the fact that neither Ascontec nor Reis addressed a trial court's
failure to make statutorily required findings, the Third District in Broadfoot cited those
4And even in that context, Ascontec did not create a mandatory rule
requiring a request for a new trial to be raised in the trial court, as the Third District
expressly stated that "[t]his court does, of course, have the discretion to order a new
trial" pursuant to section 59.35, Florida Statutes (1997), or even "in the interests of
justice." 714 So. 2d at 587 n.1.
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two cases as authority for the proposition "that the need for statutory findings" must first
be called to the attention of the trial court in a motion for rehearing. 791 So. 2d at 585.
And that conclusion in Broadfoot has now been repeated by the First, Third, and Fifth
Districts several times in dissolution cases with little or no independent analysis as to
why such a requirement should apply specifically in family law cases involving the
failure to make the factual findings required by chapter 61.
We fail to see why this special rule of preservation should be implemented
in family law proceedings when Florida courts routinely reverse errors that are apparent
on the face of a judgment in other areas of the law without indicating that preservation
by a motion for rehearing is required. See, e.g., JPMorgan Chase Bank, Nat'l Ass'n v.
DeYoung, 43 Fla. L. Weekly D1994, D1995 (Fla. 2d DCA Aug. 29, 2018) ("Ms.
DeYoung does not contest that the [principal balance due] figure contained in the
amended final judgment [of foreclosure] is likely a scrivener's error but argues the Bank
waived the error by not raising it in a motion for rehearing. We disagree."); Salazar v.
Hometeam Pest Def., Inc., 230 So. 3d 619, 622 (Fla. 2d DCA 2017) (reversing because
"the trial court's order is devoid of any [of the] findings of fact" required by Florida Rule
of Civil Procedure 1.610(c) for the entry of a temporary injunction); Greenhill v. Shands
Teaching Hosp. & Clinics, Inc., 834 So. 2d 896, 896 (Fla. 1st DCA 2002) (reversing
order that dismissed action as a sanction for appellant's failure to comply with pretrial
conference order because it lacked "a finding which indicates that the party's conduct
was willful or deliberate" (citing Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569
So. 2d 1271 (Fla. 1990))). Moreover, even in family law proceedings, Florida courts
routinely correct other errors that are apparent on the face of the order. See, e.g., B.K.
v. S.D.C., 122 So. 3d 980, 981 (Fla. 2d DCA 2013) ("S.D.C. argues that B.K. failed to
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preserve this error [of a miscalculation in determining a child support arrearage] for
appellate review by electing not to file a motion for rehearing. . . . [W]e previously
declined to extend this . . . reasoning to claims of mathematical error appearing on the
face of a final judgment." (citing Smith v. Smith, 39 So. 3d 458, 459-60 (Fla. 2d DCA
2010))); Ferguson v. Ferguson, 54 So. 3d 553, 556 (Fla. 3d DCA 2011) (reversing trial
court order that voided a provision of the marital settlement agreement and holding that
"an appellate court may, as we now do, reverse a trial court order if there exists
reversible error on the face of the order or judgment"); Hirsch v. Hirsch, 642 So. 2d 20,
21 (Fla. 5th DCA 1994) ("[T]he appellate court is authorized to reverse a judgment as a
matter of law where an error of law is apparent on the face of the judgment."); Casella v.
Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990) (reversing for "error on the face of the
amended judgment").
Specific to the error of a trial court's failure to make statutorily required
findings of fact in a family law proceeding, litigants like the Former Husband in this case
could reasonably read prior opinions of this court as allowing such an error to be raised
for the first time on appeal. This court has repeatedly reversed in family law cases on
this basis without indicating whether the error was or was not first raised in a motion for
rehearing. See, e.g., Velez, 253 So. 3d at 121 (reversing for failure to make findings
required by section 61.08(8)); Pavese v. Pavese, 932 So. 2d 1269, 1270 (Fla. 2d DCA
2006) (reversing for failure to make findings required by sections 61.08 and 61.075(3));
Walker v. Walker, 818 So. 2d 711, 714 (Fla. 2d DCA 2002) (reversing for failure to
make findings required by section 61.08(2)); Farley v. Farley, 800 So. 2d 710, 711 (Fla.
2d DCA 2001) ("Failure to include findings of fact as required by section 61.08 is
reversible error."); Milo v. Milo, 718 So. 2d 343, 344 (Fla. 2d DCA 1998) (addressing
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requirements of section 61.08(1) and concluding that "[i]t is error for a trial court to fail to
set forth the statutorily required findings of fact in the final judgment"). As such, the
Former Husband should not be penalized for reasonably relying on prior opinions of this
court that reversed on the same basis that he argues in the instant appeal.
We reject the rationale offered by other districts that it is easier for a trial
court to correct the error and make the necessary findings during the rehearing period
than it would be to recall the case on remand after the appeal process is complete. See
Simmons v Simmons, 979 So. 2d 1063, 1065 (Fla. 1st DCA 2008); Mathieu, 877 So. 2d
at 741. While we agree that the best practice would be for litigants to raise this type of
error before the trial court in a motion for rehearing, see Esaw v. Esaw, 965 So. 2d
1261, 1268 (Fla. 2d DCA 2007) (Silberman, J., concurring), if a litigant fails to do so for
whatever reason, he or she should not be foreclosed from having the error corrected,
see Fox, 262 So. 3d at 794 ("Rather than refusing to reach an appellate issue for want
of a motion for rehearing, it is far better to require a trial court to make the statutorily-
required findings. To evade review of a trial court's failure to make required findings
because someone either forgot or failed to move for rehearing frustrates the very
purpose for those findings.").
This is especially true in the family law context where there is an acute
need for the final judgment to contain the findings contemplated by the legislature due
to the ongoing nature of family proceedings. See generally § 61.14(1)(a) ("[T]he court
may modify an order of support, maintenance, or alimony by increasing or decreasing
the support, maintenance, or alimony . . . giving due regard to the changed
circumstances or the financial ability of the parties or the child."); Dogoda v. Dogoda,
233 So. 3d 484, 486 (Fla. 2d DCA 2017) ("The petitioner [seeking modification of an
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alimony award] must show 'that (1) there has been a substantial change in
circumstances, (2) the change was not contemplated at the time of the final judgment of
dissolution, and (3) the change is sufficient, material, permanent, and involuntary.' "
(quoting Jarrard v. Jarrard, 157 So. 3d 332, 336 (Fla. 2d DCA 2015))). Allowing the
statutorily required findings to go unmade due to an appellant's failure to first raise the
issue in a motion for rehearing will create future difficulty in subsequent modification
proceedings where the trial court is faced with the task of determining if there has been
a material change in circumstances. See Fox, 262 So. 3d at 793-94 ("The final
judgment establishes ground zero for the purpose of petitions for enforcement,
modification, and contempt proceedings. Without the statutorily-required findings of
fact, it is difficult, if not impossible, to . . . enforce a judgment, or to subsequently
determine if there has been a material change in circumstances sufficient to justify a
modification of that judgment.").
We acknowledge that in adopting this preservation requirement, the Third
District in Broadfoot "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." 791 So. 2d at 585. But quite often this
reservation is applied in corollary fashion—affirming based on the district court's
conclusion that the lack of statutory findings has not hindered its review of the case.
See, e.g., McCann v. Crumblish-McCann, 21 So. 3d 170, 171 ("Where competent,
substantial evidence demonstrates need and ability to pay, we will not reverse for
absence of statutory findings in the written order."); Worthen v. Worthen, 991 So. 2d
400, 401 (Fla. 2d DCA 2008) ("[T]he Former Husband . . . made no attempt to show
how the error was harmful but rather simply argued that this court should reverse based
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on the absence of the findings. Accordingly, we conclude that the trial court's error in
omitting the statutorily required findings has not been shown to be harmful and that the
final judgment should be affirmed as to these issues."); Buchanan v. Buchanan, 225 So.
3d 1002, 1004 (Fla. 1st DCA 2017) ("Where the basis for an award is reasonably clear
and supported by the record, an appellate court should not reverse for absence of
statutory findings in the written order."); Delivorias v. Delivorias, 80 So. 3d 352, 354 n.1
(Fla. 1st DCA 2011) ("The instant record is adequate to allow effective appellate review
of a proper evidentiary basis for the trial court's ruling."); Caballero v. Caballero, 868 So.
2d 575, 575 (Fla. 3d DCA 2004) ("[A]bsence of statutory findings does not require
reversal when basis for dissolution award is reasonably clear and supported by
record."); Gonzalez v. Gonzalez, 834 So. 2d 291, 292 (Fla. 3d DCA 2002) (affirming and
concluding that amount of temporary support order "is supported by the record");
Broadfoot, 791 So. 2d at 585 ("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."). Reaching such a conclusion necessarily involves the district court
conducting an independent review of the evidence and inferring factual findings
regarding statutory factors where the trial court failed to indicate that it even considered
those factors. But the legislature expressly assigned the task of making factual findings
to the trial court, and it is a task the trial court can perform on remand more easily than
a district court can on appeal because the trial court had the benefit of witnessing
firsthand the presentation of evidence. See Sinclair v. Sinclair, 804 So. 2d 589, 592
(Fla. 2d DCA 2002) ("The trial court is in the best position to weigh the evidence and to
determine the credibility of the witnesses, and it is not for this court to re-weigh [sic] the
evidence or to substitute its judgment for that of the trial court.").
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Additionally, "the preservation rules were not designed to allow a trial court
to ignore statutory requirements of which it should be aware. Certainly, a judge sitting
in family court should be cognizant of what findings are statutorily required in a final
judgment of dissolution." Fox, 262 So. 3d at 794. Accordingly, remand for the trial court
to make the statutorily required findings is the appropriate disposition in these cases.
Furthermore, to impose such a procedural constraint on a family law
litigant elevates judicial convenience over equity. See generally Rosen v. Rosen, 696
So. 2d 697, 700 (Fla. 1997) ("[P]roceedings under chapter 61 are in equity and
governed by basic rules of fairness as opposed to the strict rule of law." (citing § 61.011,
Fla. Stat. (1995))). Foreclosing a litigant from raising the trial court's failure to comply
with the requirements of chapter 61 because he or she failed to raise the issue in the
trial court by way of a motion for rehearing creates a procedural bar to achieving equity
and allows trial courts to ignore specific legislative directives. See Fox, 262 So. 3d at
794 ("[T]he filing of a motion [for rehearing] could easily eliminate an issue for appeal.
But[] because these cases involve children and families, it is equally, if not more,
important that the final judgment comport with [c]hapter 61."). This seems to be at odds
with the stated purpose of chapter 61 of "mitigat[ing] the potential harm to the spouses
and their children caused by the process of legal dissolution of marriage."
§ 61.001(2)(c).
Finally, the reality of family law is that a large number of litigants appear
before the trial court and this court in a pro se capacity. And while "[p]ro se litigants . . .
should not be treated differently from litigants in similar situations who are represented
by counsel," Anderson v. Sch. Bd. of Seminole Cty., 830 So. 2d 952, 953 (Fla. 5th DCA
2002), this judicially created rule may create a trap that not only has the potential to
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affect all family law litigants but in practice could unduly affect pro se litigants. See Fox,
262 So. 3d at 794 ("Requiring a motion for rehearing is a rule that is too restrictive and
imprecise to operate fairly where children and families are the focus. This is especially
true where many family court cases are handled pro se."). As such, like the Fourth
District did in Fox, we urge the Family Law Rules Committee to review and address this
issue. See id. at 795.
In conclusion, we hold that the trial court's failure to make specific factual
findings that are required by statute as set forth in chapter 61 is reversible error
regardless of whether the error was first raised in the trial court by means of a motion
for rehearing. In doing so, we certify conflict with the First District's opinion in Owens,
973 So. 2d 1169, the Fifth District's opinion in Mathieu, 877 So. 2d 740, the Third
District's opinion in Broadfoot, 791 So. 2d 584, and the cases of those districts that rely
on those opinions for the proposition that the trial court's error of failing to make
statutorily required factual findings in chapter 61 proceedings must first be raised in the
trial court by way of motion for rehearing in order to be preserved for appellate review.
Based on our holding today, we reverse the alimony portion of the trial
court's final judgment and remand for the trial court to make the statutorily required
findings. We affirm the final judgment in all other respects.
Affirmed in part, reversed in part, remanded, and conflict certified.
KHOUZAM, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.
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