Joseph R. McGee, Husband v. Angeline E. McGee, Wife

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-2023
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JOSEPH R. MCGEE, Husband,
Appellant,
v.
ANGELINE E. MCGEE, Wife,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
February 4, 2019
PER CURIAM.
The former husband appeals several aspects of the final
judgment of dissolution of marriage. However, he failed to
provide a transcript of the final hearing or a stipulated statement
of the evidence. Because the former husband challenges, in part,
the sufficiency of the evidence to support the temporary alimony
and equitable distribution of marital debt as ordered by the trial
court, these portions of the final judgment are affirmed. See
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.
1979); Jericka v. Jericka, 198 So. 3d 661, 662 (Fla. 2d DCA 2015);
Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007) and Klette v.
Klette, 785 So. 2d 562 (Fla. 1st DCA 2001). See also § 59.041, Fla.
Stat. (2017).
The former husband also challenges the trial court’s
determination of his child support obligation. As with other
appeals, where the appellant fails to provide a transcript or
proper substitute, “the decision of a trial court has the
presumption of correctness and the burden is on the appellant to
demonstrate error.” Applegate, 377 So. 2d at 1152. This general
rule applies to appeals of child support awards, such as here, on
grounds that the court used an incorrect income figure. Green v.
Green, 788 So. 2d 1083, 1084 (Fla. 1st DCA 2001).
The absence of a transcript is ordinarily fatal to such
appeals, but an exception applies where the trial court fails to
make any findings of fact regarding the parties’ incomes and the
appellant makes “a specific claim of harm resulting from the trial
court’s failure to make findings regarding the parties’ incomes.”
Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d DCA 2010); see also
Aguirre v. Aguirre, 985 So. 2d 1203 (Fla. 4th DCA 2008).
However, the exception does not apply here. The final judgment
contains findings by the trial court regarding the parties’
incomes. While the former husband challenges the accuracy of
the trial court’s finding of his gross income, he does not challenge
the trial court’s imputation of income to the former wife for its
starting point. Furthermore, he does not assert that the child
support award of $615.66 per month departs from the
appropriate guidelines amount, is grossly disproportionate to his
income, or otherwise constitutes harmful error.
Our review of the record as provided fails to reveal a
miscarriage of justice or an abuse of the trial court’s discretion on
the face of the judgment such that reversal is required. While the
judgment on appeal lacks written findings as to some statutory
factors, without a transcript of the hearing we cannot presume
that the trial court’s determination of the former husband’s share
of the child’s need for support was unsupported by sufficient
evidence presented at trial or that the child support ordered was
otherwise the result of harmful error. See § 59.041, Fla. Stat.
(requiring appellate examination of “entire case” for
determination of whether error resulted in miscarriage of justice).
Accordingly, the trial court’s determination of the former
husband’s child support obligation is affirmed.
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Finally, the portion of this appeal challenging the trial
court’s reservation of jurisdiction to determine the amount former
husband will pay for former wife’s attorney’s fees is dismissed for
lack of jurisdiction. See Ness v. Martinez, 249 So. 3d 754 (Fla. 1st
DCA 2018); Card v. Card, 122 So. 3d 436 (Fla. 2d DCA 2013).
That portion of the final judgment does not make an award of
fees. It only determines entitlement and is therefore nonfinal.
AFFIRMED in part, DISMISSED in part.
B.L. THOMAS, C.J., and BILBREY and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach,
for Appellant.
Bryan S. Gowdy and Daniel Mahfood of Creed & Gowdy, P.A.,
Jacksonville; Jacqueline Fortier, Law Offices of Garnett
Harrison, Kingsland, Georgia, for Appellee.
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