The debate continues on whether to remand family law cases with inadequate findings.

• Author: Fleurantin, Larry R.
• Position: APPELLATE PRACTICE

It has been a decade since the Third District Court of Appeal decided Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001). In Broadfoot, the Third District laid down the rule that in family law cases, a litigant may not complain about a trial court's failure to make factual findings unless the matter was brought to the trial court's attention in a motion for rehearing to provide the trial court with an opportunity to correct its own errors. (1) Almost three years later, in 2004, the Fifth District followed the lead of the Third District by applying the rule in Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004), but with one caveat: "[I]f the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings." (2) This caveat has been known as the Mathieu exception. (3) The First District has embraced the Broadfoot rule, but has not yet adopted the Mathieu exception. (4) The Fourth District has stated that it disagrees with both Broadfoot and Mathieu. (5) So far, the Second District has not explicitly addressed the preservation issue. (6) Since the state of the law regarding this preservation issue is unclear, the Florida Supreme Court will have to provide some clarity to litigants and lower courts and some stability to the legal system.

In this article, the author examines some decisions of the district courts, including the Fourth District's decision in Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th DCA 2005). (7) Although Dorsett provides a well-reasoned analysis of the basis for the Fourth District's disagreement with Broadfoot and Mathieu, this author contends that the Dorsett holding impairs the principle of coherence, which is critical to judicial institutions. (8) Therefore, this article urges the district courts, in particular the Fourth District, to revisit Dorsett, to adopt the Broadfoot approach, and to recognize the Mathieu exception to promote uniformity of the law in Florida.

The Third District's Decision in Broadfoot

In Broadfoot, the appellant asked the Third District to reverse the trial court's decision based on its failure to make factual findings to support a permanent alimony award and equitable distribution. (9) The Third District affirmed the trial court on these two points, finding that the issue of lack of findings was not preserved for appellate review. (10) The court noted that "[t]he time to request findings is when the case is pending in the trial court .... If the judgment is entered without required findings, then a motion for rehearing should be filed, requesting findings." (11) Finding that the appellant failed to bring to the trial court's attention the need for statutory findings as required by F.S. [section] [section] 61.08(1) and 61.07(1), the Third District declined to reverse the trial court. (12)

Recently, the Third District considered the issue of the trial court's failure to make factual findings to support its alimony award in Roth v. Cortina, 59 So. 3d 163, 165 (Fla. 3d DCA 2011). Relying on Baptiste v. Baptiste, 992 So. 2d 374, 375 (Fla. 3d DCA 2008), the Roth court reversed, noting the trial court erred by failing to identify the factual basis for its decision. (13) There are cases--such as Roth and Baptiste--decided by the Third District after Broadfoot that reversed lower courts' family law judgments for lack of findings, yet those cases did not acknowledge the Broadfoot rule. Those cases are not necessarily inconsistent with Broadfoot to the extent that the trial court's failure to make statutory findings in those cases appears to have hampered appellate review. (14)

The Fifth District's Mathieu Exception

About three years after Broadfoot was decided, the Fifth District issued its decision in Mathieu, which considered whether to reverse a final judgment of dissolution containing inadequate factual findings. (15) The court affirmed the trial court, reasoning that "the required findings are either express or apparent within the judgment, and [its] review is not hampered." (16) The district court stated that the Third District "has taken the approach that 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." (17) The Mathieu court adopted the Third District's sensible approach, stating that the failure to bring the lack of adequate findings to the trial court's attention will be considered unpreserved error. (18) This approach was adopted with one caveat: "Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case back [to the trial court] for findings." (19)

That the Broadfoot rule and Mathieu exception have not been embraced by the Fourth District reveals some level of disagreement among the district courts with the approaches in Broadfoot and Mathieu. But the principles laid down...