ELIZABETH J. JOHNSON, Appellant,
MARC D. JOHNSON, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Richard A.
A. Maney of Maney Damsker Jones & Kuhlman, P.A., Tampa,
D. Johnson, pro se, and Daniel A. Larson and Scott Anderson
of Larson Johnson, P.L., Tampa, for Appellee.
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.
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.
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.
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."
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 ...