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Johnson v. Johnson

Florida Court of Appeals, Second District

June 8, 2018

ELIZABETH J. JOHNSON, Appellant,
v.
MARC D. JOHNSON, Appellee.

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

          Appeal from the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.

          David A. Maney of Maney Damsker Jones & Kuhlman, P.A., Tampa, for Appellant.

          Marc D. Johnson, pro se, and Daniel A. Larson and Scott Anderson of Larson Johnson, P.L., Tampa, for Appellee.

          NORTHCUTT, Judge.

         Elizabeth Johnson appeals the amended final judgment dissolving her marriage to Marc Johnson. She contends that a new trial is necessary because the trial court failed to issue a ruling in the case for over two and one-half years following the final hearing. She also argues that under the facts found in the amended final judgment, she should have been awarded permanent periodic alimony. We agree on both accounts, and we reverse and remand for a new trial.

         In McKenzie v. McKenzie, 672 So.2d 48, 49 (Fla. 1st DCA 1996), a year passed between the final hearing and the entry of the final divorce judgment. The First District noted that two inconsistencies in the judgment suggested that the trial court may not have recalled the evidence presented at the hearing. Id. at 49 n.1. Because of the unreasonable delay, the court reversed the final judgment of dissolution and remanded for a new final hearing. The court observed:

Florida Rule of Judicial Administration 2.050(f) provides that a judge has a duty to rule upon a matter submitted to him or her "within a reasonable time." A presumptively reasonable time period for the completion of a contested domestic relations case is 180 days from filing to final disposition. Fla. R. Jud. Admin. 2.085(d)(1)(C). The instant case involved a delay in excess of twice what is deemed presumptively reasonable, just in the period between the hearing and final judgment. This requires a new trial.

Id. at 49.

         This court cited McKenzie when deciding McGoldrick v. McGoldrick, 940 So.2d 1275 (Fla. 2d DCA 2006). There, the final judgment of dissolution was issued eight months after the evidentiary hearing. Id. at 1276. In that circumstance, the McGoldrick court held that "[i]n determining whether a delayed ruling warrants reversal and retrial, the critical determinations are: (1) the existence of conflict between the judge's statements or findings at trial and the ultimate judgment entered and (2) the presence of unsupported factual findings in the final judgment." Id. Beyond that, the court stated:

We are also concerned that if we do not remand for a new trial, the passage of time between the trial and this opinion would likely have produced changed circumstances, causing one or both of the parties to seek modification of whatever partial result we might have affirmed. Additionally, intervening case law may require a different result than the law in effect when the case was tried.

Id. at 1277.

         In the present case, the delay between the final hearing and the issuance of the judgment was two and a half times that in McKenzie and almost four times longer than in McGoldrick. As such, this case is akin to McDaniel v. McDaniel, 780 So.2d 227, 228 (Fla. 2d DCA 2001), in which this court held that a forty-month delay between a hearing on a motion to clarify the dissolution of marriage judgment and the order granting the motion was "per se unreasonable and unacceptable."

         Likewise, we conclude that the delay of thirty-three months in this case was unreasonable and unacceptable. This is particularly so when we consider the concern expressed in McGoldrick about the probability that the parties' circumstances would have changed during the lengthy period between the trial and the issuance of the opinion. Here, Ms. Johnson is afflicted with a significant chronic health condition. During the extended delay between the final hearing and the judgment, she twice unsuccessfully sought to reopen ...


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