EDWARD J. KAMINSKI, JR., APPELLANT,
v.
RAMONA KAMINSKI, APPELLEE
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In this family law appeal, the Former Husband challenges the trial court's delay in issuing a final dissolution judgment and its award of primary residential custody to the Former Wife. The appellate court affirms the custody determination but remands to strike three unsupported factual findings, noting that the 63-day delay may have contributed to the trial court's imperfect recollection of the evidence.
The delay does not require reversal, though such delays could potentially violate Florida Rule of Judicial Administration 2.050(f) in other circumstances. The custody determination is affirmed as supported by competent, substantial evidence and not an abuse of discretion. However, three specific findings must be struck because they lack evidentiary support in the record.
[1] A delay in the issuance of a final judgment, while potentially problematic, does not automatically necessitate reversal.
[2] A trial court must base its findings on evidence presented in the record; unsupported findings are subject to being stricken.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Our affirmance on this issue, however, should not be construed to suggest that such a delay would never violate Florida Rule of Judicial Administration 2.050(f).”
Establishes that while affirming on the delay issue, the court recognizes such delays could be problematic in other circumstances
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Join FLexlaw to unlock all legal intelligenceEdward and Ramona Kaminski were parties to a dissolution of marriage proceeding involving custody of their minor child. A hearing was held, but the tr…
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PER CURIAM.
The Former Husband appeals the final judgment of dissolution, specifically challenging the delay in the issuance of the final judgment and the trial court’s award of primary residential custody of the parties’ minor child to the Former Wife. We affirm the final judgment, but remand for the trial court to strike certain findings therein that are not supported by the record.
We decide first that the Former Husband’s issue regarding the sixty-three day delay between the hearing and the trial court’s issuance of the final judgment does not require reversal. Our affirmance on this issue, however, should not be construed to suggest that such a delay would never violate Florida Rule of Judicial Administration 2.050(f).
Regarding the Former Husband’s challenge to the trial court’s custody determination, we find no reversible error. However, we direct the trial court to strike from the final judgment the following findings because the record is devoid of any evidence to support them: (1) “[s]ince the entry of the domestic violence injunction the Husband has violated the injunction by following the Wife, including an incident at the Hope Shelter, which meets the definition of stalking found in Florida Statutes Section 784.048”; (2) “[t]he Husband has continued to try to control the Wife and the circumstances relating to their child, even after this action was brought, particularly during supervised visitations with the child”; and, (3) “the Husband will not abide by court orders.”
By directing the trial court to strike these findings, we must acknowledge that the trial court’s recollection of the testimony and evidence presented was not as clear as it might have been had the final judgment been entered shortly after the hearing. The other findings contained in the final judgment, however, are supported by competent, substantial evidence, and based on our review of the transcript of the proceedings, we are unable to conclude that the determination to place primary residency with the Former Wife was an abuse of discretion. See Girtman v. Girtman, 693 So. 2d 631, 632 (Fla. 2d DCA 1997). Accordingly, given the narrow standard of review to be applied here, we affirm the trial court’s custody determination.
Affirmed in part; reversed in part and remanded with directions.
CAMPBELL, A.C.J., and FULMER and WHATLEY, JJ., Concur.
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Citator
Authorities Cited
- Collazo v. Hupert, 693 So. 2d 631 (Fla. 3d DCA 1997)
- Girtman v. Iva Hauck Girtman, 693 So. 2d 631 (Fla. 2d DCA 1997)