Crystal Sue Nicole Lowery, Mother v. Nicholas J. Carney, Father , 2016 Fla. App. LEXIS 8855 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CRYSTAL SUE NICOLE NOT FINAL UNTIL TIME EXPIRES TO
LOWERY, MOTHER, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D15-3357
v.
NICHOLAS J. CARNEY,
FATHER,
Appellee.
_____________________________/
Opinion filed June 3, 2016.
An appeal from the Circuit Court for Okaloosa County.
Terrance R. Ketchel, Judge.
Clark H. Henderson of Campbell & Henderson, PLLC, Shalimar, for Appellant.
Anna F. Foster of Pennington, P.A., Tallahassee, for Appellee.
PER CURIAM.
Appellant, the mother, seeks review of the May 5, 2015, order transferring
custody of the parties’ minor child to Appellee, the father, as well as the order
denying her motion to set aside the May 5 order pursuant to Florida Family Law
Rule of Procedure 12.540. Among other things, the mother argues that her due
process rights were violated because she was not given notice of the hearing that
resulted in the May 5 order. We affirm that issue for the reasons that follow, and
we affirm the other issues raised by the mother without discussion.
The May 5 order resulted from an April 20, 2015, hearing at which the then
pro se mother failed to appear.1 The order found that the mother was given proper
notice of the hearing based in part on the fact that the notice was served by mail on
the mother at “144 Pinecone Court, Pembroke, NC . . . which was an address
Mother provided at the January 16, 2015 hearing” (emphasis added). The trial
court’s finding that the mother provided this address was supported by the
transcript of the April 20 hearing, which reflects that the father’s attorney
represented to the court that:
in anticipation for this hearing, I served the last known
address in North Carolina, 147 Pine Cone Court.[2] And
1
The mother was represented by an attorney from June 2014 to some point in
December 2014 or early January 2015, and although the record does not contain an
order authorizing the mother’s attorney to withdraw, the mother has not argued –
below or on appeal – that notice of the April 20 hearing should have been served
on the attorney.
2
This was the address provided for service of court papers on the mother in the
Notice of Limited Appearance filed by the mother’s attorney on January 7, 2015,
which stated that the attorney was representing the mother solely on the issue of
attorney’s fees. Interestingly, although the record contains several orders predating
this Notice that were sent to the 147 Pinecone Court address and were returned as
undeliverable, the May 5 order reflects (in the “copies to” section) that it was sent
to that address and there is no indication in the record that it was returned as
undeliverable.
2
during [the January 16] hearing she actually gave us
another address, I believe it was 144 Pine Cone Court,
which was a new address. I attempted service on both of
those. Both of those came back returned, recipient not
there.
(emphasis added).
As she did below, the mother argues on appeal that she was not properly
served with notice of the April 20 hearing because the address she gave the court at
the January 16 hearing was 149 Pinecone Court, not 144 Pinecone Court. In
support of this argument, the mother relies solely on the “copies to” portion of the
order resulting from the January 16 hearing, which reflects that the order was sent
to the mother at 149 Pinecone Court. The father responds that the record supports
the trial court’s finding that the mother’s failure to appear at the April 20 hearing
was not the result of inadequate notice.
Our resolution of the due process argument raised by the mother boils down
to whether, as a matter of fact, the 144 Pinecone Court address was the address
provided by the mother at the January 16 hearing. 3 The trial court found that it
3
Although the father also attempted to serve notice of the April 20 hearing on the
mother by mail and process server at her last known Florida address, that would
not have provided the mother adequate notice of the hearing because the father
testified at the April 20 hearing that it was his understanding that the mother was
living in North Carolina and the record contained the 147 Pinecone Court address
in North Carolina that mother’s attorney provided for service of court papers on the
mother. Additionally, the fact that the father mailed notice of the April 20 hearing
to the mother’s North Carolina address provided by her attorney was not
necessarily adequate notice of the hearing under the circumstances of this case
3
was, and that finding comes to this court with a presumption of correctness. See
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In
appellate proceedings the decision of a trial court has the presumption of
correctness and the burden is on the appellant to demonstrate error.”). Although
the “copies to” portion of the order resulting from the January 16 hearing arguably
supports the inference that the address provided by the mother at that hearing was
149 (not 144) Pinecone Court, without a transcript of that hearing,4 we cannot
know for sure. It was the mother’s burden to demonstrate reversible error in the
trial court’s finding that the address she provided at the January 16 hearing was
144 (not 149) Pinecone Court, and without a transcript of that hearing, the mother
is unable to meet that burden. Id. (“The trial court should have been affirmed
because the record brought forward by the appellant is inadequate to demonstrate
reversible error.”); see also J P Morgan Chase Bank v. Combee, 883 So. 2d 330,
331 (Fla. 1st DCA 2004) (“The burden is on the appellant to demonstrate
reversible error and present an adequate record for review.”).
because it is undisputed that the mother provided a different address at the January
16 hearing (either 144 or 149 Pinecone Court), and the record contained court
orders sent to the 147 Pinecone Court address that were returned as undeliverable.
4
We directed the mother to supplement the record with a transcript of the January
16 hearing, but she filed a response stating that the hearing was not transcribed.
See Fla. R. App. P. 9.200(f)(2) (“If the court finds the record is incomplete, it shall
direct a party to supply the omitted parts of the record. No proceeding shall be
determined, because of an incomplete record, until an opportunity to supplement
the record has been given.”).
4
Accordingly, because the mother has not presented an adequate record to
demonstrate reversible error in the May 5 order, we affirm that order as well as the
order denying the mother’s motion to set aside the May 5 order.
AFFIRMED.
WOLF, WETHERELL, and KELSEY, JJ., CONCUR.
5