BRADLEY B. ENGLE, Appellant,
MICHELLE K. ENGLE, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; John S. Carlin, Judge.
J. Kruger and Luis E. Insignares of Luis E. Insignares, P.A.,
Fort Myers, for Appellant.
A. Butler of Alderuccio & Butler, LLC, Naples, for
B. Engle, the Former Husband, challenges the final judgment
of dissolution of his marriage to Michelle K. Engle, the
Former Wife. We affirm without comment the portions of the
final judgment that dissolve the parties' marriage and
set forth the equitable distribution of the parties'
assets and liabilities. But we reverse the portion of the
final judgment that awarded the Former Wife permanent
periodic alimony due to the trial court's failure to make
the findings required by section 61.08(8), Florida Statutes
(2016), and we remand with instructions that the trial court
make the statutorily required findings.
61.08(8) provides that "[p]ermanent alimony may be
awarded following a marriage of long duration if such an
award is appropriate upon consideration of the factors set
forth in subsection (2)." But "[i]n awarding
permanent alimony, the court shall include a finding
that no other form of alimony is fair and reasonable under
the circumstances of the parties." Id.
(emphasis added); see also Vinsand v. Vinsand, 179
So.3d 366, 369 (Fla. 2d DCA 2015) ("[T]he trial court
failed to make a finding that no other form of alimony was
fair or reasonable under the circumstances of this case. We
note that such a finding is now statutorily required . . .
."). A trial court's failure to make the required
findings is reversible error. See, e.g., Velez
v. Montalvo-Velez, 253 So.3d 117, 118, 121 (Fla. 2d DCA
2018) ("Because the trial court . . . failed to make the
express finding mandated by section 61.08(8) . . . we reverse
the portion of the final judgment related to alimony. . . .
Even if this finding is implicit in the court's ruling
given the length of the marriage, the former wife's
need for alimony, and the former husband's apparent
ability to pay alimony, we must reverse as to this
issue."); Jordan v. Jordan, 199 So.3d 343, 345
(Fla. 4th DCA 2016) ("The trial court did . . . fail to
make the requisite finding that no other form of alimony
would be fair and reasonable. . . . That finding might be
implicit in the trial court's conclusion; nevertheless,
the statute requires the finding to be made. We therefore
reverse and remand the case for this finding, which the trial
court will no doubt make."); Winder v. Winder,
152 So.3d 836, 841 (Fla. 1st DCA 2014) (reversing alimony
award "because the trial court failed to expressly find
that no other form of alimony would be appropriate before
awarding permanent alimony").
Former Wife, however, maintains that the Former Husband has
not preserved this argument for appeal because he did not
raise it in the trial court by way of a motion for rehearing.
We do not agree. Such a preservation requirement is not
supported by statute or rule of procedure. In chapter 61 the
legislature provides clear instructions to trial courts to
make specific mandatory findings of fact. But the legislature
did not include a provision requiring a motion for rehearing
to preserve a challenge to a lack of statutory findings. Nor
has the Florida Supreme Court or the rules committee placed
such a requirement upon family law litigants.
recognize that all of the other districts have at one time
held that a party must first bring a trial court's
failure to make statutorily required findings of fact to the
attention of the trial court by way of a motion for
rehearing. See, e.g., Farghali v. Farghali,
187 So.3d 338, 340 (Fla. 4th DCA 2016) (adopting the rule
that a party must first challenge in the trial court the
adequacy of the trial court's findings in family law
cases), receded from by Fox v. Fox, 262 So.3d 789
(Fla. 4th DCA 2018); Owens v. Owens, 973 So.2d 1169,
1170 (Fla. 1st DCA 2007) (holding that appellant's
argument that final judgment lacked sufficient findings was
not preserved for appellate review because appellant did not
raise it "in a motion for rehearing or by other means
available in the trial court"); Mathieu v.
Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004)
("[A] party cannot complain on appeal about inadequate
findings in a dissolution case unless the alleged defect was
brought to the trial court's attention in a motion for
rehearing."); Broadfoot v. Broadfoot, 791 So.2d
584, 585 (Fla. 3d DCA 2001) (holding that the former husband
failed to preserve his challenge to the trial court's
failure to make the requisite findings because "there is
no indication that the need for statutory findings was called
to the attention of the trial court"). However, during
the pendency of this appeal, the Fourth District receded from
its decision in Farghali and held-as we do here-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."
Fox, 262 So.3d at 791.
coming to this conclusion, we first point out that the line
of cases requiring a motion for rehearing to preserve the
failure to make factual findings-which continues to be good
law in the First, Third, and Fifth Districts-stems from the
case Ascontec Consulting, Inc. v. Young, 714 So.2d
585, 587 (Fla. 3d DCA 1998), which simply does not state that
first Florida case requiring parties to raise a trial
court's failure to make statutorily required findings in
a motion for rehearing in order to preserve the error for
appellate review was Broadfoot, 791 So.2d at 585,
wherein the Third District held that "[t]he time to
request findings is when the case is pending in the trial
court." To support this proposition, the Third District
cited Reis v. Reis, 739 So.2d 704, 705 (Fla. 3d DCA
1999), and Ascontec, 714 So.2d at 587. However,
neither Reis nor Ascontec involved a trial
court's failure to make statutorily required factual
findings. Rather, both cases addressed claims that the trial
court waited too long after an evidentiary hearing to issue
its written order, calling into question the trial
court's ability to correctly recall the details of the
Reis, the former husband in a dissolution case
"claim[ed] there should be a reversal because of an
unreasonable time delay between the final hearing and the
entry of the order on appeal. The former husband essentially
argue[d] that he [wa]s entitled to a reversal and new trial
solely on the basis of an [eight]-month delay." 739
So.2d at 705. The Third District disagreed with the former
husband and relied on its prior holding in Ascontec
We reject th[e former husband's] claim on the authority
of Ascontec . . . . The former husband's
assertion is in essence that "by reason of the passage
of time, the trial court's recollection of the
proceedings had become faulty . . . [, ]"
[Ascontec, 714 So.2d] at 587 (citations omitted),
and that as a consequence he is entitled to a new trial. As
we explained in Ascontec, ...