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Smith v. Wallace

Florida Court of Appeals, Second District

May 10, 2017

EUGENE SMITH, JR., Appellant,
v.
EUGENIA TIARA WALLACE, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge.

          Jovona I. Parker, Fort Pierce, for Appellant.

          Eugenia Tiara Wallace, pro se.

          CASANUEVA, Judge.

         Eugene Smith, Jr., appeals the final judgment resolving his supplemental petition for modification of child support. He alleges that the judgment contains numerous errors, including miscalculations and omissions. We note that our review is limited to errors on the face of the judgment because there is no transcript of the proceedings. In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979), the Florida Supreme Court explained:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

         However, even in the absence of a transcript, an appellate court can reverse in those instances when the trial court makes an error of law on the face of the judgment. Siam Motors, Inc. v. Spivey, 136 So.3d 692, 694 (Fla. 2d DCA 2014). In the present case, we find no error of law on the face of the judgment and affirm.

         We note that Mr. Smith asked the trial court to approve a statement of the evidence and an amended statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200. Rule 9.200(b)(4) provides as follows:

If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection. The statement shall be served on all other parties, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be filed with the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

         On June 7, 2016, the trial court held a hearing on Mr. Smith's request and found that Ms. Wallace's counsel had "agreed that these things happened in this case, 1 through 19. So those will be part of the statement of proceedings."[1] Then the trial court advised Mr. Smith, "You need to complete an order which states that, okay?" That way, the court noted, "the DCA will have at least 19 stipulated facts on the record." The court then decided to write the order: "Actually, you know what? I'm going to go ahead and do that order. Not that you can't do it, but it would be easier if I did it and I'll do that in a few minutes when we're finished."

         After examining the record on appeal, we are unable to locate a written order that comports with the trial court's oral pronouncement. Rather, twenty-two days after the hearing, the trial court entered a written order denying the very motion it had previously granted as to the nineteen facts. In its order, the trial court ruled as follows:

5) The Court finds the Petitioner the Petitioner [sic] prepared a statement of the evidence and submitted the ...

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