Fox v. Fox

262 So.3d 789

Timothy Richard FOX, Appellant,

v.Pamela Sue FOX, Appellee.

No. 4D17-2092

District Court of Appeal of Florida, Fourth District.

[December 19, 2018]

EN BANC

May, J.

The effect of a trial court's failure to make statutorily-required findings in an alimony award is the focus of this appeal. The former husband argues the trial court's failure constitutes reversible error. The former wife responds the former husband did not preserve the issue because he did not move for rehearing and call the issue to the trial court's attention. And so, a duel between reversible error and preservation is set. The former husband also argues the trial court erred in denying him the opportunity to conduct a vocational examination of the former wife.

We visit this issue en banc to resolve a conflict within our court. We hold 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. In doing so, we recede from Farghali v. Farghali , 187 So.3d 338 (Fla. 4th DCA 2016), which departed from our precedent that the failure to make the statutory findings constitutes reversible error.¹ We further certify conflict with the First, Second, Third, and Fifth Districts on whether a motion for rehearing is required to preserve this issue. We also find merit in the former husband's second issue and reverse for further proceedings.

The Facts

The former wife petitioned for dissolution of a thirty-two year marriage. Both parties have a high-school education. The former husband works in a managerial position at an asphalt company; the former wife was employed for more than thirty years as a dental assistant and office manager. In her petition, she alleged she was unemployed and suffered from health issues.

Both parties filed financial affidavits. The former wife attested she had no monthly income and a monthly deficit of $4,017. She listed significant total assets and no liabilities or debt. The former husband's financial affidavit listed a net monthly income around $6,600.

The court granted the former wife's request for temporary alimony, ordering the former husband to pay $3,700 per month. Three days later, the former wife moved for contempt, enforcement, attorney's fees, and costs, accusing the former husband of failing to pay temporary relief.

The former husband filed a notice of vocational examination of the former wife, arguing that her earning ability was in controversy and requesting her to bring her medical records and copies of employment applications. A little less than a month later, the former wife formally objected to the vocational examination, arguing the former husband consented to her not working years earlier and that she suffers from debilitating health conditions.

With the trial set, the former husband moved for a continuance, arguing he had an outstanding notice of vocational examination to which the former wife had originally agreed. The court denied the former husband's request.

The parties entered into a marital settlement agreement, resolving all issues except alimony. The day before trial, the former husband filed an amended financial affidavit, listing his net monthly income as nearly half of that previously indicated.

The trial court tried the alimony issue. The former wife testified that she was a dental assistant for about thirty-four years and a traditional mother. She left her job due to health issues and as part of an agreement with the former husband. The former wife admitted she was unhappy with her job's office culture, but denied she quit for that reason.

The former husband offered the testimony of a vocational evaluation specialist. The expert explained how he evaluates individuals to determine earning potential. He explained that he never examined the former wife, but had discussed her situation with the former husband's counsel. The former wife objected to his testimony based on relevance, speculation, and lack of foundation. The trial court sustained the objections.

The trial court found the former wife had no gross monthly income and the former husband had a gross monthly income of $11,853. Though the former husband disputed the amount, the court awarded the former wife $4,500 per month in permanent periodic alimony. The court expressly found the former husband never sought to impute income to the former wife in the pleadings or the joint pretrial statement.

From this judgment, the former husband now appeals.

The Analysis

The former husband first argues the court erred in awarding permanent periodic alimony based on the former couple's gross monthly income without making factual findings to support its conclusions. Relying on our decision in Farghali v. Farghali , 187 So.3d 338 (Fla. 4th DCA 2016), the former wife responds that the former husband failed to preserve the issue when he did not move for rehearing.

In Farghali , we adopted a First District rule that "a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing." Id. at 339 (quoting Simmons v. Simmons , 979 So.2d 1063, 1064 (Fla. 1st DCA 2008) ). We then stated that "[a]lthough we have not expressly adopted this rule before, we do so now." Id.

Farghali conflicts with our earlier decisions, which did not require a motion for rehearing to preserve the lack of findings issue. See Badgley v. Sanchez , 165 So.3d 742 (Fla. 4th DCA 2015) (error in failing to make statutorily-required findings in an alimony award); Rentel v. Rentel , 124 So.3d 993 (Fla. 4th DCA 2013) (error in failing to make statutorily-required findings in an alimony award); Mondello v. Torres , 47 So.3d 389 (Fla. 4th DCA 2010) (error in failing to make statutorily-required findings in an equitable distribution award); Aguirre v. Aguirre , 985 So.2d 1203 (Fla. 4th DCA 2008) (error in failing to make statutorily-required findings in a child support award); and Dorsett v. Dorsett , 902 So.2d 947 (Fla. 4th DCA 2005) (error in failing to make statutorily-required findings in an equitable distribution award).

A panel of our court has no authority to overrule or recede from our precedent on the same legal issue. Phila. Fin. Mgmt. of S.F., LLC v. DJSP Enters., Inc. , 227 So.3d 612, 617 (Fla. 4th DCA 2017) ; see also In re Rule 9.331 , 416 So.2d 1127, 1128 (Fla. 1982) ("[A] three–judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law."). We therefore review the issue en banc.

In Dorsett , we held that "[e]ven when no trial transcript is provided to the reviewing court, ‘[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.’ " Id. at 950 (alterations in original) (quoting Wolfe v. Nazaire , 758 So.2d 730, 733 (Fla. 4th DCA 2000) ). In a footnote, we cited Broadfoot v. Broadfoot , 791 So.2d 584 (Fla. 3d DCA 2001) ; and Mathieu v. Mathieu , 877 So.2d 740 (Fla. 5th DCA 2004) as having reached the opposite conclusion. Id. at 950 n.3 ; see also Mondello v. Torres , 47 So.3d 389, 400 n.3 (Fla. 4th DCA 2010) ("This court has expressed disagreement with Mathieu .").

In Broadfoot , the Third District affirmed an alimony award despite the lack of statutorily-required findings because the award was clear and supported by the record. The Fifth District adopted Broadfoot in Mathieu and affirmed a dissolution judgment even though it lacked statutorily-required findings because the issue was not raised in a motion for rehearing filed by the husband. Notably, both courts adopted an exception to the rule when an appellate court is unable to have a meaningful review due to the lack of findings.

Subsequently, in Rentel , we held that "[b]ecause it is not apparent that the trial court based its alimony calculations on net income, we reverse and remand to make the required findings and to modify the award if necessary." 124 So.3d at 994. And in Badgley , we reiterated that "a trial court's failure to make statutorily-required findings nonetheless warrants reversal." 165 So.3d at 744 (citations omitted). We again cited Mathieu as contrary authority. Id.

The First District adopted Broadfoot and Mathieu in Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007) (because the appellant failed to challenge the adequacy of the finding in a motion for rehearing, it failed to preserve the issue for appellate review).

In Esaw v. Esaw , 965 So.2d 1261 (Fla. 2nd DCA 2007), the Second District affirmed a dissolution judgment because the appellant failed to demonstrate harmful error or provide a transcript. It did so despite the lack of statutorily-required findings. It indicated that the "technical deficiency in the trial court's findings" did not render the error fundamental. And, it acknowledged our disagreement with Broadfoot and Mathieu in Esaw v. Esaw , 965 So.2d 1261, 1265 n.1 (Fla. 2d DCA 2007). Judge Silberman also noted the conflict in his concurring opinion. Id. at 1268 (Silberman, J. concurring).

Despite the other districts' decisions requiring a party to file a motion for rehearing to preserve the issue of a trial court's failure to make statutorily-required findings in alimony, equitable distribution, and child support, we adhere to our precedent that a party may raise the issue without having previously filed a motion for rehearing. This is because the rules do not require the filing of a motion, many dissolution appeals are pro se, and a family court judge should be aware of the statutory requirements in rendering a decision on alimony, equitable distribution, and child support.

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