ELIJAH D. DUKES, APPELLANT,
v.
NISHEA N. DUKES, APPELLEE

Fla. 2d DCA | 2009-03-25
No. 2D07-4284
ALTENBERND and FULMER, JJ„ Concur.
19 So. 3d 338 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a dissolution of marriage action, the husband appeals from an order awarding temporary child support and alimony to the wife. The appellate court held that while the trial judge's adoption of the wife's proposed order verbatim does not automatically require reversal, specific paragraphs containing findings inconsistent with the judge's oral rulings or addressing issues not reflected in those rulings must be struck.


Holding

Reversal of the entire order is not required because the judge made sufficient findings of fact and conclusions of law, but the court strikes specific paragraphs (5(b), 7(a), 8(a), 9(a), C(2), C(3), F(1), F(4)-(7)) that address material issues not reflected in the judge's oral rulings or contradict those rulings.


Headnotes

[1] A trial court abuses its discretion when it adopts a party's proposed order verbatim if the order contains findings inconsistent with the court's earlier oral pronounceme…

[2] When a trial court adopts a party's proposed order verbatim, reversal is required if the order contains findings not announced on the record and the party was not afforde…

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

Key Quotes

“when a trial court adopts verbatim a party's proposed order, reversal is required when the findings in that order are inconsistent with an earlier pronouncement of the court, or when the record establishes that the order does not reflect the court's "independent decision-making."”

Establishes the standard for when reversal is required when a trial court adopts a party's proposed order verbatim.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Following a July 16, 2007 hearing on the wife's motion for temporary relief, the wife's attorney submitted a proposed order directly to the judge on A…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
KELLY, Judge.

*339KELLY, Judge.

Elijah Dukes, the husband in this dissolution of marriage action, appeals from the order which awards the wife, Nishea N. Dukes, temporary child support and temporary alimony and makes several findings, which the husband contests. Because the order is inconsistent in some respects with the trial judge’s oral findings or contains findings the judge did not make at the hearing, we strike those portions of the order.

On July 16, 2007, a hearing was held on the wife’s motion for temporary relief, during which the trial judge considered evidence concerning custody and visitation of the parties’ minor children, the wife’s need for temporary alimony, and various other issues.1 Following the hearing, on August 1, 2007, the wife’s attorney submitted a proposed order directly to the judge without first sending a copy to the husband’s attorney for his comment. The following day, the husband’s attorney wrote to the judge and requested that he not enter the order until the husband’s attorney had an opportunity to review the proposed order and offer any changes. On August 8, 2007, the husband’s attorney corresponded with the wife’s attorney, pointing out numerous discrepancies in the proposed order. The husband’s attorney requested that she withdraw the proposed order and attached his own proposed order for her consideration. Before the husband’s attorney could submit his proposed order to the judge, the judge signed the wife’s attorney’s proposed order without alteration.

On appeal the husband contends that the trial judge abused his discretion by adopting, verbatim, the wife’s proposed order. He argues that the signed order was inconsistent with some of the judge’s earlier rulings at the hearing, that it contained findings the judge had not made, and that he had not had the opportunity to properly object. We agree. See Plichta v. Plichta, 899 So.2d 1283, 1285 (Fla. 2d DCA 2005) (reversing portions of the final judgment which contained several rulings that were not announced on the record where the husband had not been afforded an opportunity to object).

The fact that the order was adopted from a proposal submitted by a party does not, standing alone, require reversal. M.D. v. Dep’t of Children & Family Servs., 924 So.2d 827 (Fla. 2d DCA 2005). However, when a trial court adopts verbatim a party’s proposed order, reversal is required when the findings in that order are inconsistent with an earlier pronouncement of the court, or when the record establishes that the order does not reflect the court’s “independent decision-making.” Id. at 831.

Here, the order contains certain findings which either contradict the judge’s oral findings or address issues not reflected in the trial judge’s oral rulings. Although the trial judge signed the proposed order before the husband had an opportunity to voice his objections, we conclude that reversal of the entire order is not required because the judge made findings of fact and conclusions of law that provide a basis for much of the order. Accordingly, we strike the following paragraphs in the order that address material issues not reflected in the trial judge’s rulings: 5(b), 7(a), (8)(a), 9(a), C(2), C(3), F(l), F(4)-(7).

The husband also argues that the award of temporary support to the wife includes children’s expenses which have already been accounted for in the child support *340award. However, the record on appeal does not include the wife’s financial affidavit. Therefore, this court cannot properly evaluate the husband’s claims based on the record before this court. See Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007).

Affirmed in part; reversed in part.

ALTENBERND and FULMER, JJ„ Concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw