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Engle v. Engle

Florida Court of Appeals, Second District

July 3, 2019

BRADLEY B. ENGLE, Appellant,
v.
MICHELLE K. ENGLE, Appellee.

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

          Appeal from the Circuit Court for Lee County; John S. Carlin, Judge.

          Brian J. Kruger and Luis E. Insignares of Luis E. Insignares, P.A., Fort Myers, for Appellant.

          Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee.

          SLEET, JUDGE.

         Bradley 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.

         Section 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").

         The 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.

         We 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").[1] 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.[2]

         In 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 proposition.[3]

         The 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 hearing.

         In 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 as follows:

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, ...

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