JOHN F. ALVORD, APPELLANT,
v.
CHRISTAL ALVORD, APPELLEE

Fla. 3d DCA | 1990-10-09
No. 90-604
Before NESBITT, BASKIN and GODERICH, JJ.
572 So. 2d 925 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 14 cases

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Holding

A successor judge cannot enter a final judgment based on a predecessor's evidentiary hearing transcript without a stipulation from the parties.


Headnotes

[1] A successor judge may complete acts left uncompleted by a predecessor only if the successor is not required to weigh and compare testimony heard before the predecessor.

[2] A successor judge who does not hear all the evidence may only enter a verdict or judgment upon a retrial or if the parties stipulate on the basis of the record of prior p…

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Facts & Procedural History

Following a dissolution of marriage, the wife sought attorney's fees due to the husband's failure to pay child support. The predecessor judge heard te…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The husband, John F. Alvord, appeals a final judgment awarding the wife, Christal Alvord, attorney’s fees, suit money and costs and a final order denying his motion for rehearing.

The marriage of the parties was dissolved on May 5, 1989. The final judgment of dissolution of marriage incorporated a marital settlement agreement which provided, inter alia, that the husband pay child support. Article XXVI of the marital settlement agreement provides that if either party defaults in his or her obligations, the defaulting party shall be liable to the non-defaulting party for all reasonable expenses incurred in the enforcement of the obligations, including attorney’s fees. The final judgment was entered by the predecessor judge. The wife filed a motion for contempt for failure to pay child support and asked the court to require the husband to pay fees, costs and interest incurred as a result of the contempt proceedings. The predecessor judge took testimony on the attorney’s fees issue. Subsequent to that hearing, the husband filed a post judgment memorandum of law and facts setting forth his opposition to the award of attorney’s fees.

Prior to entering a final judgment on the issue, the predecessor judge became incapacitated and the successor judge was assigned to his division. On February 16, 1990, the successor judge conducted a ease management status hearing with wife’s counsel personally in attendance and husband’s counsel in attendance by telephone. There was no court reporter present at the hearing. During the hearing, the successor judge advised the attorneys that he had read the transcript of the hearing and the court file and that he would enter a final judgment. The husband’s attorney objected to the entry of any judgment on the grounds that it was improper for a successor judge to enter a final judgment based upon a reading of a transcript unless both parties agreed. The successor judge signed the final judgment on February 16, 1990. The husband immediately filed a motion for rehearing and to set aside the final judgment. The court denied this motion on March 7, 1990, without a hearing, and the husband appealed.

The attorneys could not reach a stipulation regarding the facts of this case. The husband's attorney did not submit a statement of the facts along with the wife’s attorney’s objections to the successor judge for settlement and approval.

We are faced here with the issue of whether it was error for the successor judge to enter a final judgment based on his reading of the court file and the transcript of a hearing held before his predecessor. The husband complains that it was improper for the successor judge to make an adjudication on the merits of the wife’s petition without having heard testimony presented at the evidentiary hearing. We agree.

A successor judge may complete any acts left uncompleted by his predecessor, if the successor is not required to weigh and compare testimony heard before the other judge. Tompkins Land & Housing, Inc. v. White, 431 So. 2d 259 (Fla. 2d DCA 1983); Bradford v. Foundation & Marine Constr. Co., 182 So. 2d 447, 449 (Fla. 2d DCA), cert. denied, 188 So. 2d 821 (Fla.1966). “A successor judge who does not hear all the evidence may only enter a verdict or judgment upon a retrial or if the parties so stipulate on the basis of the record of the prior proceedings.” Reaves v. Reaves, 546 So. 2d 744, 745 (Fla. 2d DCA 1989); Tompkins Land, 431 So. 2d at 260. Accord, Bradford, 182 So. 2d at 449.

In the instant case, the predecessor judge conducted an evidentiary hearing during which both parties presented testimony and expert witnesses. The successor judge heard none of the testimony on the issue of fees and costs. Furthermore, there was no stipulation by the husband that the successor judge could render a judgment based upon a reading of the court file and the transcript of the hearing before his predecessor. See Fla.R.Jud.Ad-min. 2.060(g). A ruling by the successor based solely on a reading of the court file and the transcripts of the hearing required him to weigh and compare the testimony and the evidence presented during that hearing. Therefore, we find that it was improper for the successor judge to enter the final judgment without either hearing the testimony himself or without having a stipulation signed by the husband on the record.

Accordingly, we vacate the trial court’s judgment granting the wife’s petition. On remand, the trial court should hold a new hearing on the issue of attorney’s fees.

Reversed and remanded for a new hearing.


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Citator

Cited By

  • Moore v. Dep't of Health & Rehabilitative Servs., 664 So. 2d 1137 (Fla. 5th DCA 1995)
    …positional order contains findings of fact [*1140] based upon what transpired at the adjudicatory hearing despite the fact that the presiding judge, Judge Weinberg, was not present at the adjudicatory hearing. This is improper. See Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990). The adjudicatory and dispositional orders are reversed since the first does not contain the requisite findings of fact and the second contains findings of fact which the court was not qualified in the first instance to make. The…
  • Cole v. Cole, 159 So. 3d 124 (Fla. 3d DCA 2013)
    …remand, the trial court may, with the stipulation of the parties, re-open and conclude the prior evidentiary hearing, or, in the absence of such stipulation, must hold a new eviden-tiary hearing on the parties’ custody motions. See Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990) (stating a successor judge, who does not hear evidence heard by his predecessor, may only enter judgment upon a retrial or if the parties stipulate to a ruling based on the record of the prior proceedings). Reverse and reman…
  • Umscheid v. Umscheid, 724 So. 2d 1267 (Fla. 5th DCA 1999)
    …en a judge-edited proposed, but unsigned, order or judgment. See Hatcher v. St. Joe Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992); L.S. v. State, 593 So. 2d 296 (Fla. 5th DCA 1992); Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991); Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990); Beattie v. Beattie, 536 So. 2d 1078 (Fla. 4th DCA 1988); Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971). See also Anders v. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979); Bradford v. Foundation & Marine Const. Co., Inc., 182…

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