LARRY J. NICHOLASON, APPELLANT,
v.
ADAIR H. BRYANT, FORMERLY ADAIR NICHOLASON, APPELLEE
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The court affirmed the modification order because the appellant failed to provide a proper record of the unreported evidentiary hearing.
[1] An appellate court must affirm a trial court's factual determinations when the trial record is incomplete and the appellant failed to utilize available procedures to reco…
[2] Appellate procedure provides a mechanism for appellants to create a record of proceedings when a court reporter was absent.
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Join FLexlaw to unlock all legal intelligenceFollowing a dissolution judgment ordering child support, the wife petitioned for an increase. The trial court granted the increase after an unreported…
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COBB, Chief Judge.
Pursuant to a settlement agreement, the appellant, Larry J. Nicholason, was ordered to pay $125.00 biweekly for the support of his two minor children in a dissolution judgment. The wife subsequently petitioned for an increase in support payments. After an evidentiary hearing, which was unreported, the trial court doubled the payments, resulting in this appeal.
Although the financial affidavits of the parties introduced at trial indicate that appellant may well have had a persuasive case for reversal of the modification with a proper record, we are left with no viable alternative but to affirm in the face of a factual determination by the trial court based on the presentation of evidence at an unreported hearing. We write to remind counsel in such situations that Florida Rule of Appellate Procedure 9.200(b)(3)1 estab lishes a procedure whereby a record may be presented on appeal despite the absence of a reporter at the relevant trial level proceeding. It should be utilized in all instances such as that which we are now asked to review — but cannot.
For the foregoing reasons, the modification order entered below on March 5, 1984, is affirmed and the appellee’s motion for attorney’s fees on appeal, based upon the “spurious” nature of this appeal (i.e., based upon section 57.105, Florida Statutes), is granted.
AFFIRMED and REMANDED for assessment by the trial court of reasonable attorney fees for appeal.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur. . Rule 9.200(b)(3) provides:
If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.
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Saunders Contracting & Cincinatti Ins. Co. v. Clemens, 492 So. 2d 1379 (Fla. 1st DCA 1986)…record by stipulated statement pursuant to Rule 9.200(f), or by preparing a statement of the proceedings pursuant to 9.200(b)(3), it cannot now argue issues that it failed to include in the record transmitted to this court. See Nicholason v. Bryant, 468 So. 2d 311 (Fla. 5th DCA 1985). Moreover, since the record before this court does not appear incomplete, we refuse to delay further the disposition of this cause by ordering appellant to supplement the record pursuant to Rule 9.200(f)(2).1 AFFIRMED. SHIVERS,…
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Kubel v. Kubel, 597 So. 2d 969 (Fla. 5th DCA 1992)…PER CURIAM. AFFIRMED. See Nicholson v. Bryant, 468 So. 2d 311 (Fla. 5th DCA 1985). COBB, HARRIS and PETERSON, JJ., concur.…
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Baggett v. Baggett, 640 So. 2d 1167 (Fla. 1st DCA 1994)…st DCA 1985). The failure to hear and consider such evidence constituted an abuse of discretion. See Altman, 585 So. 2d at 1127; Ace Electric Supply Co. v. Terra Nova Electric, Inc., 288 So. 2d 544, 547 (Fla. 1st DCA 1973). Cf. Nicholason v. Bryant, 468 So. 2d 311 (Fla. 5th DCA 1985) (trial court’s factual determination at unreported hearing was based on “presentation of evidence”). Upon remand, the parties will have the opportunity to present evidence to indicate their intent and purpose as to the $30,000.…
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