JAMES L. SMITH, AND JAMES L. SMITH, D.O., P.A., APPELLANTS,
v.
JOSIE H. SMITH, APPELLEE
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A successor judge cannot rely solely on the prior record to determine alimony without a stipulation from the parties.
Following a divorce, the wife appealed the alimony award, and the appellate court remanded for reconsideration of the husband's business income. The c…
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BLUE, Judge.
James L. Smith (husband) appeals the final judgment after remand for redetermination of his ability to pay alimony. He raises three issues, only one of which has merit. The husband correctly argues the trial court erred in relying upon the prior record to determine his ability to pay alimony and in failing to hold an evidentiary hearing.
The parties’ divorce action was tried before Judge Knowles who entered a final judgment in October 1989. Josie H. Smith (wife) appealed, arguing the judge had not properly evaluated the husband’s ability to pay alimony. On January 25, 1991, this court ordered the trial court to consider the husband’s business income, as well as his salary, in determining the wife’s alimony award. Smith v. Smith, 575 So. 2d 228 (Fla. 2d DCA1991). On remand the case was assigned to Judge Tharpe. Over objection, Judge Tharpe elected to decide the matter based only upon his review of the previous written record.
The trial court erred in refusing to hold an evidentiary hearing. The parties had not stipulated to allow the successor judge to decide the case based on evidence in the original action. If this case had not been reassigned, Judge Knowles could have reviewed the record and based his determination on the prior evidence, since he had observed the witnesses and could evaluate their credibility. A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate. Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA1989). We reverse and remand to the trial court for an evidentiary hearing in which either side can present additional evidence of the husband’s business income pursuant to the prior mandate of this court.
Reversed and remanded.
THREADGILL, A.C.J., and PARKER, J., concur.
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In the Interest of L.B. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 932 So. 2d 1148 (Fla. 2d DCA 2006)…eversible error for a successor judge to sign a final order of adjudication of dependency because another judge presided over the proceedings and the successor judge did not hear the testimony and argument presented at the hearings); Smith v. Smith, 612 So. 2d 713, 714 (Fla. 2d DCA 1993) (“A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate.”). Second, the judgment contains factual findings and conclusion…
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Dortheanne Roberts v. Roberts, 128 So. 3d 856 (Fla. 1st DCA 2013)…nt and remand for additional proceedings consistent with this order; which, in view of the trial judge’s retirement, appears to require a new trial before a successor judge, unless the parties stipulate to the prior record. See e.g., Smith v. Smith, 612 So. 2d 713, 714 (Fla. 2d DCA 1993) (“A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate.”) (citation omitted). Notwithstanding reversal and remand, we af…
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Harris v. Harris, 162 So. 3d 1108 (Fla. 5th DCA 2015)…or explain why it disregarded such competent evidence.2 In so doing, the trial court is permitted to receive new or additional evidence if necessary. See, e.g., Fullerton v. Fullerton, 709 So. 2d 162, 165 (Fla. 5th DCA 1998); Smith [*1111] v. Smith, 612 So. 2d 713, 714 (Fla. 2d DCA 1993). Lastly, the trial court erred in awarding Former Wife attorney’s fees, as no evidence supports the reasonableness of the fee award. At the beginning of trial, Former Wife’s counsel explicitly stated that he was reserving hi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA 1989)
- Josie H. Smith v. Smith, 575 So. 2d 228 (Fla. 2d DCA 1991)