CAMERON CUMMINGS, APPELLANT,
v.
JANICE CUMMINGS, APPELLEE
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In this post-dissolution enforcement case, the trial court awarded Appellee half of a bank account balance based on her testimony alone, placing the burden on Appellant to disprove her claim through production of bank records. The appellate court reversed, holding that as the movant, Appellee bore the burden of proof and failed to obtain the necessary bank records through proper discovery mechanisms.
The trial court erred in placing the burden on Appellant to counter Appellee's claim by producing bank records. As the movant, Appellee bore the burden of proof and failed to meet it. The court properly reversed as to the excessive amount awarded but affirmed an award of $6,500 supported by the evidence. The attorney's fees issue was determined to be unripe for appeal because only entitlement was addressed, not the amount.
[1] The burden of proof rests upon the party seeking affirmative relief to establish their claim with competent evidence.
[2] A party seeking to enforce a financial obligation must present evidence sufficient to prove the amount due, even if the opposing party fails to produce requested records.
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“the burden of proof was upon Appellee as movant”
Establishes the fundamental legal principle that the party seeking enforcement in a post-dissolution proceeding bears the burden of proof.
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Join FLexlaw to unlock all legal intelligenceAppellant and Appellee were parties to a mediated agreement requiring Appellant to pay Appellee one-half of the balance of a certain bank account. App…
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TORPY, J.
In this post-dissolution proceeding, Appellee sought to enforce the terms of a mediated agreement under which Appellant was obligated to pay her one-half of the balance of a certain bank account. The dispute culminated in an evidentiary hearing during which Appellee attempted to prove the amount due without the appropriate records from the bank account. Appellee attempted to excuse the failure to bring the records to court by asserting that Appellant ignored her production requests. However, it is undisputed that Appellee neither served a subpoena on the bank nor moved to compel production of the records after Appellant failed to bring the records with him to his deposition. At the evidentiary hearing Appellant again failed to bring the bank records with him. Appellee did not ask the trial court for a continuance or other relief but instead proceeded to put on her proof. Unfortunately, the only competent evidence of the amount came from the testimony of Appellant. Nevertheless, the court awarded the amount requested by Appellee, which was not supported by the evidence, under a theory that Appellant had the burden to counter Appellee’s claim by producing the records. This conclusion is erroneous because the burden of proof was upon Appel-lee as movant.
Appellant concedes, however, that the evidence does support an award to Appel-lee of $6500.00. Accordingly, the judgment is vacated and this cause is remanded with instructions that the court enter judgment in favor of Appellee in the amount of $6500.00
Appellant also challenges the court’s determination that Appellee is entitled to attorney’s fees. Because the court’s order only determined entitlement but did not set the amount of such fees, the issue is not ripe for determination at this time. See Ritchie v. Ritchie, 687 So. 2d 1358 (Fla. 4th DCA 1997).
REVERSED AND REMANDED.
SAWAYA, C.J., and SHARP, W., J., concur.
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- Ritchie v. Ritchie, 687 So. 2d 1358 (Fla. 4th DCA 1997)