BILLY POWELL CLAYTON, APPELLANT,
v.
RUTHE LEE CLAYTON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A husband appeals a dissolution of marriage judgment, but the appellate court affirms because the trial court proceedings were not recorded and the parties' conflicting statements of evidence could not be reconciled, making appellate review impossible.
The court affirmed the judgment because the lack of a trial transcript or a proper substitute is a fatal flaw preventing appellate review. The burden is on the appellant to demonstrate error by providing an adequate record, which appellant failed to do.
[1] An appellate court must affirm a trial court's decision when the record is insufficient for review.
[2] A party appealing a judgment bears the burden of demonstrating error, and this burden cannot be met without an adequate record.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”
Establishes the foundational principle that appellants must overcome the presumption of correctness through an adequate record.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe final hearing in this dissolution of marriage case was not recorded. The appellant husband filed a statement of the evidence presenting his versio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Appellate Procedure 9.200(B)(3) cases and more on FLexlaw
SHIVERS, Judge.
This is an appeal by the husband from a judgment of dissolution of marriage. Because we agree with appellee, wife, that the record is insufficient for appellate review, we affirm.
The record provided for review in this case includes the pleadings of the parties, including financial affidavits, depositions from the wife’s doctor and psychologist, and the final judgment of the court. The final hearing in this case, however, was not recorded. Pursuant to Florida Rule of Appellate Procedure 9.200(b)(3), appellant filed a statement of the evidence, giving appellant’s version of the evidence adduced at the final hearing. Appellee filed objections to appellant’s statement of the evidence and filed an appellee’s statement of the evidence. Although some areas of agreement exist, there remain substantial differences and conflicts between the two versions of the final hearing. Moreover, the statements of the evidence do not reveal the nature of the arguments, if any, made to the trial court.
Although the statements and objections were presented to the trial court for settlement and approval pursuant to Rule 9.200(b)(3), the trial court entered an order stating that the court was unable to sufficiently recall the proceedings so as to be able to approve or reconstruct a record in accordance with Rule 9.200.
The decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. It is the decision of the trial court, and not the reasoning used in the written final judgment, which matters. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). As in Applegate, we find that the lack of a trial transcript or a proper substitute is a fatal flaw in appellant’s case. See also Starks v. Starks, 423 So. 2d 452 (Fla. 1st DCA 1982) (stipulated statement signed by counsel for both parties was deficient, and therefore not a sufficient substitute for a hearing transcript); Morgan v. Kearney, 395 So. 2d 570 (Fla. 4th DCA 1981) (record insufficient where trial judge resigned without taking action on conflicting statements of evidence prepared by the parties); Kauffmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1980) (record insufficient where trial court did not settle any factual differences between the parties or approve any version of the facts).
AFFIRMED.
MILLS, J., concurs.
ZEHMER, J., concurs specially, with opinion.
ZEHMER, Judge,
concurring.
I concur, albeit reluctantly, in the majority opinion. The parties did not agree on a stipulated record, and the trial judge, because of an understandable lack of memory, did not settle the disputes and approve the stipulation. We have no stipulated record approved under rule 9.200, Florida Rules of Appellate Procedure, and therefore have no alternative but to affirm under Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979), and the other decisions cited in Judge Shivers’ opinion for the court.
I am troubled, however, by this disposition of the case. It appears to me that the facts agreed upon by the parties in the stipulated record — ignoring the disputed facts in that stipulation — are in themselves sufficient to demonstrate reversible error. No useful purpose is served by reciting that evidence in detail. In my view, however, the agreed facts show, for example, that the total monetary amount appellant is ordered to pay from his monthly income for the wife’s support and mortgage payments on her house is significantly more than the remaining amount available to the husband, which is insufficient for his own support. In addition, the trial court apparently was unduly and improperly influenced by the husband’s alleged misconduct, recited in the judgment. We have not reached these and some other questions presented, however, for lack of a proper record. Perhaps the rule in Applegate should be modified, but that is for the Supreme Court, not us, to decide.
As demonstrated in the cases cited by Judge Shivers, the lesson to be learned from this is simple, but of utmost importance. Unless a party determines, at the commencement of a trial involving disputed facts, to accept the trial court’s ruling without further review by another court, it is imperative that such party employ the services of a court reporter and obtain a reported transcript of the proceedings in order to preserve ,and guarantee the right of full appellate review.
Perhaps the wife has now resumed working and become self-sustaining, as was prognosticated by the deposition testimony filed with the court below, so that the appellant may seek modification of his ostensibly onerous burden. If he does so, hopefully he is now adequately forewarned to make a full record if he expects us -to review an adverse decision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
-
Burnham v. Burnham, 884 So. 2d 390 (Fla. 2d DCA 2004)…n. Ordinarily, the absence of a transcript of the pertinent hearing precludes appellate review of a trial court’s determination concerning custody and visitation. See Sullivan v. Sullivan, 668 So. 2d 329, 330 (Fla. 4th DCA 1996); Clayton v. Clayton, 442 So. 2d 310, 311 (Fla. 1st DCA 1984) (citing Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979)); see also Pignataro v. Rutledge, 841 So. 2d 636, 638 (Fla. 2d DCA 2003); Alday v. Gleason, 853 So. 2d 1105, 1106 (Fla. 5th DCA 2003). The former husband does su…
-
Giltex Corp. v. Diehl, 583 So. 2d 734 (Fla. 1st DCA 1991)…ourt should not reach the question of the applicability of Rowe, because there is no transcript of the attorney’s fee hearing below and the lack of a transcript constitutes an insufficient record which precludes appellate review. Clayton v. Clayton, 442 So. 2d 310 (Fla. 1st DCA 1983) (decision of trial court has the presumption of correctness and appellant has burden to demonstrate error — lack of a trial transcript or a proper substitute is a fatal flaw in appellant’s case). Next, Diehl contends that Rowe do…
-
LEE v. LEE, 544 So. 2d 1083 (Fla. 1st DCA 1989)…ions to deny the former husband any relief based on a perceived insufficiency of the evidence to support the trial court’s order would be contrary to Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). See also, Clayton v. Clayton, 442 So. 2d 310, 311-12 (Fla. 1st DCA 1983) (Zehmer, J., specially concurring); Starks v. Starks, 423 So. 2d 452 (Fla. 1st DCA 1982). We feel compelled to comment upon an underlying social and public policy problem that inheres in the resolution of the issues rais…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Starks v. Starks, 423 So. 2d 452 (Fla. 1st DCA 1982)
- Kauffmann v. Baker, 392 So. 2d 13 (Fla. 4th DCA 1980)
- Morgan v. Dudley Kearney & Century Elevator Co., Inc., 395 So. 2d 570 (Fla. 4th DCA 1981)