ROBERT T. MURPHY, APPELLANT,
v.
VICKIE H. MURPHY, APPELLEE

Fla. 5th DCA | 2007-02-02
No. 5D05-4459
GRIFFIN and PALMER, JJ., concur.
948 So. 2d 864 Florida District Court of Appeal, Fifth District (2007) Negative Treatment
Cited by 20 cases

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Synopsis

A former husband appeals the trial court's denial of his supplemental petition to reduce child support, arguing the court failed to consider his former wife's increased income and improperly applied the substantial change of circumstances standard. The Fifth District Court of Appeal affirmed the denial, finding the husband waived several arguments through procedural defects and that the trial court's credibility findings were supported by the record.


Holding

The court affirmed the trial court's denial. The husband waived the argument regarding consideration of the wife's increased income by failing to allege it in his petition and the court could not find fundamental error without a trial transcript. The argument regarding the substantial change of circumstances burden was waived because the husband never sought recalculation pursuant to the marital settlement agreement and did not raise this argument in written closing. The reinstatement of the original obligation was proper under Florida Statute 61.14(11), which became effective July 1, 2004, and allows retroactive modification of temporary support orders without showing substantial change of circumstances. The delay in entering the final order was not unreasonable because the detailed order showed no factual inconsistencies or conflicts with trial statements.


Headnotes

[1] In the absence of a trial transcript, an appellate court must affirm the trial court's decision unless fundamental error appears on the face of the appealed order.

[2] An issue is waived if it is not raised in the pleadings or at trial.

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Key Quotes

“In the absence of a trial transcript, we are obligated to affirm the trial court unless fundamental error appears on the face of the appealed order.”

Establishes the standard of review when no trial transcript is available on appeal in this circuit.

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Facts & Procedural History

The parties divorced on April 3, 2003, with a marital settlement agreement requiring the husband to pay $1,000 monthly rehabilitative alimony for twel…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

The former husband appeals the trial court’s denial of his supplemental petition to reduce his child support obligation. Our review is limited because of the lack of a trial transcript.1 In the absence of a trial transcript, we are obligated to affirm the trial court unless fundamental error appears on the face of the appealed order. Mayfield v. Mayfield, 929 So. 2d 671 (Fla. 5th DCA 2006). See also Carney v. Carney, 861 So. 2d 1272 (Fla. 1st DCA 2003).

A final judgment of dissolution of marriage was entered on April 3, 2003. The marital settlement agreement, which was incorporated into the final judgment, provided the former husband would pay rehabilitative alimony of $1,000 per month for twelve months and child support in the amount of $2,400 per month. The marital settlement agreement further provided:

Notwithstanding the above, the parties agree that the child support shall be recalculated pursuant to F.S. 61.30 effective upon the expiration of alimony as contained herein.

The former husband fully paid his alimony obligations. On April 28, 2004, the former husband filed a supplemental petition for modification seeking a reduction in his child support obligation. In his supplemental petition, the former husband alleged he no longer had the ability to pay $2,400 per month child support as his substantial financial assets had been depleted supporting his former wife and children over the past year. He claimed he was receiving no income from his electrical contracting business. Significantly, the supplemental petition did not allege the former husband had a right, pursuant to the terms of the marital settlement agreement, to seek a recalculation of child support. The supplemental petition also failed to allege a substantial change of circumstances had arisen based on the former wife’s increased income.

During the course of the proceedings, an order was issued temporarily reducing the former husband’s child support obligation to $668.18 per month. This order clearly provided it should not be considered a final determination of the former husband’s modification action.

The case was tried on June 13, 2005. Written closing arguments were submitted by the parties approximately one month later. On November 30, 2005, the trial court entered an order denying the former husband’s supplemental petition. The trial court found the former husband had failed to establish a substantial change of circumstances. The order clearly suggests the trial court found the former husband’s testimony regarding his financial condition was not credible. Additionally, the trial court set aside the prior temporary order, resulting in the immediate establishment of a substantial arrearage.

On appeal, the former husband raises several issues. First, he claims the trial court erred in not considering the former wife’s increased income as a basis to establish a substantial change of circumstances. As noted previously, the supplemental petition did not allege the former wife’s increased income as grounds to reduce the former husband’s child support obligation. Absent a trial transcript, we cannot determine if this issue was tried with the consent of the parties. Accordingly, we cannot find a fundamental error on the face of the order. Mayfield.

The former husband next alleges the trial court erred in “assigning the (former husband) a heavier burden to establish a substantial change in circumstances than the parties’ marital settlement agreement established.” However, the former husband never filed a motion or pleading seeking a recalculation of his child support obligation pursuant to the terms of the marital settlement agreement.2 Indeed, this argument was not even raised in his written closing argument. Therefore, we find this argument to have been waived. Carlton v. Carlton, 816 So. 2d 254 (Fla. 2d DCA 2002) (issue waived where not raised until hearing on motion to rehear). See also Wilkinson v. Wilkinson, 756 So. 2d 1081 (Fla. 5th DCA 2000)(without specific pleading for relief by husband, award deprived wife of due process).

The former husband next claims it was error for the trial court to have reinstitut-ed his original child support obligation retroactive to the date on which his child support obligation had been reduced by a prior temporary order. In support of his argument, the former husband cites to Rodgers v. Diederichsen, 820 So. 2d 362 (Fla. 1st DCA 2002), Israel v. Israel, 824 So. 2d 953 (Fla. 4th DCA 2002), and Kraus v. Kraus, 749 So. 2d 513 (Fla. 2d DCA 1999). However, these decisions were rendered prior to the enactment of section 61.14(11), Florida Statutes. This statute became effective on July 1, 2004, and specifically provides:

(ll)(a) A court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.

(b) The modification of the temporary support order may be retroactive to the date of the initial entry of the temporary support order; or the date of filing of the ... supplemental petition for modification; ....

Lastly, the former husband argues he is entitled to a new trial because the final order was entered approximately five and one-half months after the conclusion of the final hearing. An unreasonable delay in the rendering of a final order may serve as a basis for reversal. Walker v. Walker, 719 So. 2d 977 (Fla. 5th DCA 1998). There is no “bright line” as to what is an unreasonable delay. Walker, 719 So. 2d at 979. Reversal is required only where there is a reason to question the accuracy of the final order. Duva v. Duva, 674 So. 2d 774 (Fla. 5th DCA 1996). In determining whether a delayed ruling warrants reversal and retrial, a critical determination is whether there is a conflict between the trial judge’s statements or findings at the time of the trial and the ultimate written judgment, or if there is a factual finding in the final judgment which is not supported by the record. Walker, 719 So. 2d at 979; see also Florida Air Academy, Inc. v. McKinley, 688 So. 2d 359 (Fla. 5th DCA 1997). In this case, a review of the trial court’s detailed order suggests no reason to question its accuracy-

AFFIRMED.

GRIFFIN and PALMER, JJ., concur. . Furthermore, no statement of evidence was ever submitted to this court. See Fla. R.App. P. 9.200(b)(4).

. We would note that if the former husband had sought a recalculation of child support pursuant to the terms of the marital settlement agreement, the trial court would have had the option of increasing his obligation, decreasing his obligation, or leaving it unchanged.


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Cited By (11 total)

  • Sunil Ghay v. Poonam Ghay, 954 So. 2d 1186 (Fla. 2d DCA 2007)
    …a final judgment. See Senate Staff Analysis & Economic Impact Statement, Senate Bill 1060, Regular Session (Fla. Mar. 16, 2004). The Fifth District has recently opined that this enactment has superseded Kraus and similar cases. See Murphy v. Murphy, 948 So. 2d 864 (Fla. 5th DCA 2007).…
  • Mayada Rayess v. Bitar, 254 So. 3d 1197 (Fla. 5th DCA 2018)
  • Smith v. James W.P. Smith, 62 So. 3d 672 (Fla. 5th DCA 2011)
    …review is limited because of the lack of a transcript. In the absence of a transcript of the evidentiary hearing below, we are obligated to affirm the trial court unless fundamental error appears on the face of the appealed order. Murphy v. Murphy, 948 So. 2d 864, 865 (Fla. 5th DCA 2007). No such error appears on the face of the trial court’s order.1 AFFIRMED. PALMER, ORFINGER and EVANDER, JJ., concur. . The injunction provisions complained of by Ms. Smith were not made a part of the trial court’s fi…

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