We're back: the appellate court said you didn't find anything.

• Author: Streisfeld, Jonathan M.
• Position: Florida

Every diligent trial attorney strives to prevent grounds for reversal on appeal. Especially in the divorce arena, where the personal lives of the spouses and children have been turned upside down by a trial, the pressure to bring finality to the process is extreme. Adding an appeal only makes things worse, emotionally and financially. A survey of Florida appellate decisions involving divorce decrees reveals one of the common grounds for reversals of final judgments is the lack of requisite findings of fact, causing remands that could surely have been avoided. The Fourth District Court of Appeal addressed the required attention to detail when it held:

[I]t is the responsibility of the lawyers and the trial court to resolve all of the issues in a dissolution matter, with meticulous attention to the details required by [C]hapter 61 and current case law. In the absence of such attention, needless, expensive post-trial, and appellate activity will occur.... (1)

Reversals for further trial court proceedings will no doubt frustrate clients, especially when the appellate opinion reflects the appellate panel's clear indication that the reversal and costs of appeal could have been avoided if the findings were merely included in the final judgment. This article will point out some pitfalls to be avoided and assist with the preparation of final judgments to limit appellate reversals for missing findings.

Readers should not assume this article covers every factual finding required in every context; however, the author provides below a list of necessary factual findings based on statutes and case law to assist judgment preparation for many common and some uncommon issues. Some sections in F.S. Ch. 61 expressly require the court to "find" or "determine" certain facts or circumstances to exist. For many such sections, there are no reported cases discussing whether failure to include an express factual finding will require reversal. It is apparent that appellate courts require written findings where the Florida Legislature includes the word "find" in the statute. Best practices suggest including findings in an effort to avoid being a case of first impression with regard to statutes for which there are no appellate decisions. Even if counsel believes that the trial judge made erroneous findings, including those erroneous findings in the judgment should assist in bringing the claimed error to the appellate court's attention. Also, since the Florida Legislature and courts continue to act, there is no substitute for updating your research in preparing for trial or drafting a proposed final judgment. Finally, the form orders included in the Florida Family Law Rules of Procedure provide a great resource.

Is There Evidence to Support the Finding?

Findings of fact cannot be made without supporting competent, substantial evidence. Numerous appellate decisions indicate that the failure to present evidence precludes reversal. (2)

Remand for evaluation of record evidence supporting a ruling is surely appropriate. However, appellate decisions ordering new evidentiary hearings can be troublesome, especially where the record clearly reflects that the appellant neglected (or intentionally failed) to prepare the issue for trial. Such orders give that party another bite at the apple. Detailed trial court findings reflecting the conduct that caused the court either not to address the issue or rule against the appellant due to the lack of record evidence should thwart remand in that situation.

As an example, in dealing with equitable distribution, the failure to put on evidence as to the value of an asset or liability prevents the inclusion of findings regarding the distribution of that asset or liability. Appellate courts have affirmed the equitable distribution without remand for valuation of the missing asset or liability and without adjustment of the distributions. (3) Thus, there may be no ability to correct the error.

Failure to Move for Rehearing Below

There is conflict among the district courts of appeal regarding whether a party can appeal the trial court's failure to include required factual findings if that party has not filed a timely motion for rehearing pursuant to Florida Family Law Rule of Procedure 12.530, which adopts Florida Rule of Civil Procedure 1.530. The First, Third, and Fifth district courts of appeal have ruled that a motion for rehearing is required to preserve the issue for appeal--Fourth District case law conflicts.

In Broadfoot v. Broadfoot, 791 So. 2d 584, 585 (Fla. 3d DCA 2001), the court explained this rule of unpreserved error by stating findings are to be requested at the trial level, presumably during the final hearing or in the proposed judgment. If the judgment lacks findings, rehearing should be sought for this purpose. (4) The Third District established the following standard:

As a general rule, we decline to consider claims which were not presented in the first instance in the trial court. See, e.g., Rokicki v. Rokicki, 660 So. 2d 362, 364 (Fla. 3d DCA 1995). In this case there is no indication that the need for statutory findings was called to the attention of the trial court.

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. We do, of course, reserve 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. See Levi v. Levi, 780 So. 2d 261, 263 (Fla. 3d DCA 2001); McCarty v. McCarty, 710 So. 2d 713, 715 (Fla. 1st DCA 1998). (5)

Dorsett v. Dorsett, 902 So. 2d 947 (Fla. 4th DCA 2005), is in conflict. That court held that a lack of required findings of fact creates fundamental error on the face of the judgment requiring reversal and remand for the necessary findings. (6) The Second District recently noted in Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007), that it has yet to weigh in on this issue.

If rehearing is not sought, the trial...