LOUIS BERYL EISNER, APPELLANT,
v.
RUTH SIDONIE COHN EISNER, APPELLEE
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A husband appeals a child support award in a divorce case, challenging both the amount awarded and an improper ex parte communication between the trial judge and the wife's attorney. The appellate court reverses and remands due to the ex parte communication and insufficient findings of fact regarding the child support amount.
The ex parte communication was improper and not harmless error, requiring reversal. Additionally, because the trial court failed to make express findings of fact regarding the husband's income, ability to pay, and the basis for the child support amount, meaningful appellate review was impossible, necessitating remand for the trial court to make necessary findings of fact.
[1] A communication from counsel to a trial judge, without serving a copy on the adverse party, which restates arguments made at a hearing and is substantially in accord with…
[2] An improper ex parte communication with the trial judge, where the unrepresented adverse party had no opportunity to rebut the statements made, is not harmless error when…
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Join FLexlaw to unlock all legal intelligence“This communication with the trial judge without serving a copy on the adverse party amounted to a prohibited ex parte communication.”
Establishes that the wife's attorney's letter violated procedural rules prohibiting ex parte communications
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Join FLexlaw to unlock all legal intelligenceAt the close of evidence in a dissolution of marriage proceeding, the trial judge requested the wife's attorney to write a letter stating what relief …
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ZEHMER, Judge.
The husband appeals an award of child support contained in a final judgment of dissolution of marriage. He complains about the amount of child support awarded and argues that counsel for appellee wife had an improper ex parte communication with the trial judge. We reverse.
At the close of the evidence the trial judge requested the wife’s attorney to “write me a letter, just put in it what you’ve asked for, so I’ll take it under consideration. I’m not saying I’ll grant it, but I’ll go down the list” (T 218).
Appellee’s counsel submitted a three-page letter to the trial court without serving a copy on the husband. The letter went further than just stating the relief requested, and restated many of the arguments that had been made at the hearing. This communication with the trial judge without serving a copy on the adverse party amounted to a prohibited ex parte communication. Fla.R.Civ.P. 1.080; Fla.Bar Rules Professional Conduct 4-3.5(b).
The husband was not represented by Counsel, was not served with a copy of the letter and, thus had no opportunity to rebut the statements made in the letter. The final judgment is substantially in accord with the requests made in the letter. Given these facts we are unable to conclude that this improper ex parte communication was harmless error. The husband also contends the trial court abused its discretion in awarding $1500 per month total child support. We have been unable, on the record before us, to determine whether there has been an abuse of discretion. No express findings of fact were made as to the husband’s income and his ability to pay support and we are uncertain of the amounts used by the trial court. Nor does the final order indicate the basis of the children’s monthly needs which would justify the $1500 award of child support.
Accordingly, meaningful appellate review is not possible. While we express no view on the propriety of the amount of child support awarded, upon remand the trial court should make these necessary findings of fact. Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987); DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st DCA 1987); Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987).
The provisions of the judgment relating to child support are vacated and the cause is remanded for further proceedings consistent herewith.
REVERSED and REMANDED.
JOANOS and WIGGINTON, JJ., concur.
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Dyson v. Dyson, 597 So. 2d 320 (Fla. 1st DCA 1992)…at it did. Therefore, we must reverse the provisions of the final judgment effecting a distribution of the parties’ marital assets and liabilities and remand for further written findings of fact in accordance with this opinion. See Eisner v. Eisner, 513 So. 2d 673 (Fla. 1st DCA 1987); Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987); De Poorter v. De Poorter, 509 So. 2d 1141 (Fla. 1st DCA 1987); Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987). Reconsideration of all pertinent issues relating to the distri…1 / 2
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Touchstone v. Myron Lavelle Touchstone, 579 So. 2d 826 (Fla. 1st DCA 1991)…atutes (1987) fully applies, the absence of specific or written findings of fact preclude meaningful appellate review of the financial evidence in the lower court proceedings. See Raehn v. Raehn, 557 So. 2d 152 (Fla. 1st DCA 1990); Eisner v. Eisner, 513 So. 2d 673 (Fla. 1st DCA 1987). Accordingly, that part of the order awarding child support to appellant below the minimum statutory guidelines amount is reversed and the cause remanded for the entry of an amended order which states findings explaining the rea…
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LEE v. LEE, 544 So. 2d 1083 (Fla. 1st DCA 1989)…living in a state of unsolemnized marriage. The appealed order is reversed and the cause is remanded with directions to make specific findings of fact on the elements essential to termination of rehabilitative alimony. See, e.g., Eisner v. Eisner, 513 So. 2d 673 (Fla. 1st DCA 1987); DePoorter v. DePoorter, 509 So. 2d 1141. In view of the lack of a meaningful record preserving the testimony at the prior hearing, the trial court may receive further evidence as deemed necessary. REVERSED AND REMANDED. ERVIN,…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)
- Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987)
- Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987)