CURTIS J. CARTER, APPELLANT,
v.
PATRICIA CARTER, APPELLEE

Fla. 5th DCA | 1987-02-12
No. 86-1003
COBB and COWART, JJ., concur.
504 So. 2d 418 Florida District Court of Appeal, Fifth District (1987) Positive Treatment
Cited by 27 cases

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.

Synopsis

A former husband appealed a trial court's order finding him in arrears on alimony and child support, holding him in willful contempt, and sentencing him to jail. The appellate court dismissed the appeal because the appellant failed to provide an adequate record, including either a transcript or stipulated statement of the evidence, which was essential to appellate review.


Holding

The court held that where the correctness of the trial court's ruling depends on the evidence presented, a report of that evidence in one of the forms permitted by the rules is absolutely essential to appellate review. The permissiveness of the rules applies only to the method by which the evidence is reported, not to the necessity of providing a report itself.


Headnotes

[1] An appellate court cannot review a trial court's ruling if the correctness of that ruling depends on evidence presented to the trial court and no report of that evidence…

[2] The appellant bears the burden of submitting an appellate record that is adequate to support the appeal.

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Key Quotes

“Where, as here, the correctness of the trial court's ruling depends on the evidence presented to it, a report of that evidence in one of the forms permitted by the rules is absolutely essential to an appellate review.”

Establishes that when evidence is critical to the trial court's decision, the appellant must provide a report of that evidence in the appellate record.

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Facts & Procedural History

Curtis Carter appealed a final order determining he was in arrears in alimony and child support payments, finding him in willful contempt of an order …

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Opinion of the Court
ORFINGER, Judge.

ORFINGER, Judge.

The former husband appeals a final order of the trial court which: a) determined that he was in arrears in payment of alimony and child support, and entered a judgment for the arrears; b) found him in willful contempt of a previous order requiring that he pay attorney fees; c) sentencing him to jail for contempt, and suspending the incarceration if he purged himself of contempt by complying with the conditions specified in the order. Appellee suggests that the appeal should be dismissed because no transcript of the hearing is included in the record on appeal.

Appellant concedes that no transcript of the testimony taken before the trial court is available because the proceedings below were not recorded. He contends, however, that because Florida Rule of Appellate Procedure 9.200(a)(3) provides that the parties may prepare a stipulated statement as part of the record on appeal, and because Rule 9.200(b)(3) provides that the appellant may prepare and submit to the trial court for approval a statement of the evidence where no report of the proceedings was made, the use of either (or any) of such procedures is permissive and not required. Further, he says that in any event, Rule 9.200(f)(2) prevents dismissal of the appeal until he has been given the opportunity to supplement the record.

Appellant completely misinterprets the import of those rules. Where, as here, the correctness of the trial court’s ruling depends on the evidence presented to it, a report of that evidence in one of the forms permitted by the rules is absolutely essential to an appellate review. The permissiveness of the rules is not in the necessity for a report of the proceedings, but in the method by which that report is presented. As we pointed out in Beasley v. Beasley, 463 So. 2d 1248 (Fla. 5th DCA 1985):

Unless this court is provided with all of the evidence which was before the trial court, either by a transcript of testimony or a stipulated statement, then we cannot fault and reverse a trial judge for a purported error. It is the appellant’s burden to submit to the appellate court a record adequate to support the appeal. Wright v. Wright, 431 So. 2d 177 (Fla. 5th DCA 1983). Where the nature of the appeal requires that the record include the testimony, where it is not available we will either dismiss the appeal or summarily affirm the order appealed from. Beasley.

Appellant’s contention that Rule 9.200(f)(2)1 requires that we give him the opportunity to supplement the record under the circumstances here is also erroneous. As this court pointed out in Thomas v. Thomas, 498 So. 2d 668 (Fla. 5th DCA 1986):

The provision in Rule 9.200(f)(2) relied upon by the appellant ... does not encompass a situation where there is an absence of record below, as opposed to a failure by the parties to include parts of an extant record below in the record on appeal. If a record exists below that is needed to complete the appellate record, then this court cannot determine the cause without affording a party the opportunity to supply the omitted part of the record. But if no record was created in the first place — either by court reporting or a submitted statement per Rule 9.200(b)(3) — then there is no obligation on this court’s part to afford a party on appeal a second opportunity to create a record simply because he ignored the rule the first time around. See Beasley v. Beasley, 463 So. 2d 1248 (Fla. 5th DCA 1985). [Emphasis in original].

Because appellant has not provided this court with an adequate record to support his appeal, the appeal is dismissed.

DISMISSED.

COBB and COWART, JJ., concur. . Rule 9.200(f)(2) provides:

(2) If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.

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Citator

Cited By (13 total)

  • Babooram Sugrim v. Sumattee Sugrim, 649 So. 2d 936 (Fla. 5th DCA 1995)
    …ution. Issues concerning evidentiary sufficiency and the like are not reviewable where no transcript of the trial proceedings or stipulated statement of evidence exists. See, e.g., Walt v. Walt, 596 So. 2d 761 (Fla. 1st DCA 1992); Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987). An error which appears on the face of the final judgment, however, is reviewable. See Florida Public Service Commission v. Pruitt, Humphress, Powers & Munroe Advertising Agency, Inc., 587 So. 2d 561 (Fla. 1st DCA 1991). The fina…
  • Se. Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989)
    …that rule is inapplicable under the circumstances of this case where there is a complete lack of a transcript of the record below or of a statement of the proceedings pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). See Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987). Affirmed. SCHEB, A.C.J., and RYDER, J., concur.…
  • In re Guardianship OF Georgina H. Read v. Kenefick, 555 So. 2d 869 (Fla. 2d DCA 1989)
    …on its face must be affirmed. Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla.3d DCA 1987). See also Gordon v. Burke, 429 So. 2d 36 (Fla.2d DCA 1983); Gilson v. Murphy, Fearnley & Yawn, Inc., 151 So. 2d 447 (Fla.2d DCA 1963); Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987); Conner v. Coggins, 349 So. 2d 780 (Fla. 1st DCA 1977); Lambert v. Lambert, 340 So. 2d 1221 (Fla. 4th DCA 1976). Since the court’s order was not erroneous on its face and the correctness of the trial court’s ruling depended not o…

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