SCOTT ALAN FAST, APPELLANT,
v.
TAMMY LYNN NELSON, APPELLEE
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Scott Alan Fast appeals a trial court order transferring a child custody modification case from Collier County to Suwannee County based on forum non conveniens. The court reverses because the trial court failed to make the necessary findings of substantial inconvenience or undue expense either orally at the hearing or in its written order.
A trial court must make findings of substantial inconvenience or undue expense either orally at the hearing or in its written order before granting a change of venue under section 47.122. The order is reversed and remanded because the trial court made neither oral nor written findings.
[1] A trial court must make findings of substantial inconvenience or undue expense before granting a change of venue pursuant to the forum non conveniens statute.
[2] A written order granting a change of venue must contain findings supporting the transfer, or a transcript or stipulated statement of facts must be provided to demonstrate…
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Join FLexlaw to unlock all legal intelligence“Prior to granting a change in venue pursuant to section 47.122, a trial court must make a finding of substantial inconvenience or undue expense.”
Establishes the mandatory requirement for venue transfer findings
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Join FLexlaw to unlock all legal intelligenceFast and Nelson had a custody modification proceeding pending in Collier County. Nelson moved to transfer the case to Suwannee County under the forum …
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Scott Alan Fast appeals a nonfinal order which transferred a child custody modification proceeding from Collier County to Suwannee County. Because there is no indication in the record that the trial court made the necessary findings for the change in venue, we reverse.
In this case, venue was proper in both Collier County and Suwannee County.1 However, Nelson sought to have the case transferred to Suwannee County on the basis of the forum non conveniens statute. Section 47.122, Florida Statutes (2008), provides that “[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”2 Prior to granting a change in venue pursuant to section 47.122, a trial court must make a finding of substantial inconvenience or undue expense. See Kirchhoff v. Scott, 736 So.2d 786, 788 (Fla. 2d DCA 1999).
Unfortunately, the trial court’s written order does not contain any findings as to the basis for the change in venue and the record on appeal does not contain a transcript of the hearing or an acceptable substitute. Typically, where a trial court’s order is devoid of required findings and the appellant has failed to provide this court with a transcript or stipulated statement of the facts, we would be constrained to affirm because it would ordinarily be impossible for the appellant to establish that an asserted error is harmful. Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007), review denied, 981 So.2d 1199 (Fla.2008) (table); see also Guntner v. Jennings, 980 So.2d 1185, 1188 (Fla. 5th DCA 2008) (holding that without a transcript or stipulated statement of facts, the court “cannot second-guess the factual basis for a forum non conveniens transfer”).
Yet, in this case, both Fast and Nelson confirmed that at the hearing, the trial court reserved ruling on the motion to change venue. Thus it is undisputed that the trial court did not orally pronounce the required findings of substantial inconvenience or undue expense. Accordingly, because the trial court failed to either orally pronounce the required findings or to include them in its written order, we must reverse and remand for the trial court to make such findings if supported by the evidence. See Kirchhoff, 736 So.2d at 788.
Reversed and remanded.
DAVIS and VILLANTI, JJ., Concur.
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Citator
Cited By
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Kahlifi McGEE v. McGEE, 145 So. 3d 955 (Fla. 1st DCA 2014)…he order was granted based on either of the reasons permitted in the transfer statute. “Prior to granting a change of venue pursuant to section 47.122, a trial court must make a finding of substantial inconvenience or undue expense.” Fast v. Nelson, 22 So. 3d 109, 110 (Fla. 2d DCA 2009). While the trial court may have envisioned making such a finding based upon the language in the order stating that the court had “considered the request, reviewed the record, and considered all relevant factors[,]” the fact r…
Authorities Cited
- Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007)
- Esaw v. Esaw, 981 So. 2d 1199 (Fla. 2008)
- Guntner v. Shana Perry Jennings, 980 So. 2d 1185 (Fla. 5th DCA 2008)
- Kirchhoff v. Scott, 736 So. 2d 786 (Fla. 2d DCA 1999)