CRYSTAL SUE NICOLE LOWERY, MOTHER, APPELLANT,
v.
NICHOLAS J. CARNEY, FATHER, APPELLEE

Fla. 1st DCA | 2016-06-03
No. 1D15-3357
WOLF, WETHERELL, and KELSEY, JJ., concur.
193 So. 3d 1014 Florida District Court of Appeal, First District (2016)

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Holding

The appellate court affirmed the trial court's custody order and denial of the motion to set aside, finding the mother failed to provide an adequate record to demonstrate reversible error regarding notice of the hearing.


Headnotes

[1] An appellant bears the burden to demonstrate reversible error and must present an adequate record for appellate review.

[2] A trial court's factual findings are presumed correct on appeal, and the appellant must overcome this presumption.

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Facts & Procedural History

The mother failed to appear at a hearing resulting in a custody order transferring custody to the father. The trial court found notice was proper beca…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, the mother, seeks review of the May 5, 2015, order transferring custody of the parties’ minor child to Appellee, the father, as well as the order denying her motion to set aside the May 5 order pursuant to Florida Family Law Rule of Procedure 12.540. Among other things, the mother argues that her due process rights were violated because she was not given notice of the hearing that resulted in the-May 5 order. '■ We affirm that issue for the reasons that follow, and we affirm the other issues raised by the mother without discussion.

The May 5 order resulted from an April 20, 2015, hearing at which the then pro se mother failed to appear.1 The order .found that the mother was given proper notice of the hearing based in part on the fact that the notice was served by mail on the mother at “m Pinecone Court, Pembroke, NC ... which was an address Mother provided at the January 16, 2015 hearing” (emphasis added). The trial court’s finding that the mother provided this address was supported by the transcript of the April 20 hearing, which reflects that the father’s attorney represented to the court that:

in anticipation for this hearing, I served the last known address in North Carolina, 147 Pine Cone Court.[2] And dur *1015 ing [the January 16] hearing she actually gave us another address, I believe it was 144 Pine Cone Court, which was a new address. I attempted service on both of those. Both of those came back returned, recipient not there.

(emphasis added).

As she did below, the mother argues on appeal that she was not properly served with notice of the April 20 hearing because the address she gave the court at the January 16 hearing was H 9 Pinecone Court, not 144 Pinecone Court. In support of this argument, the mother relies solely on the “copies to” portion of the order resulting from the January 16 hearing, which reflects that the order was sent to the mother at 149 Pinecone Court. The father responds that the record supports the trial court’s finding that the mother’s failure to appear at the April 20 hearing was not the result of inadequate notice.

Our resolution of the due process argument raised by the mother boils down to whether, as a matter of fact, the Hi Pine-cone Court address was the address provided by the mother at the January 16 hearing.3 The trial court found that it was, and that finding comes to this court with a presumption of correctness. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150,1152 (Fla.1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and ■ the burden is on the appellant to demonstrate error.”). Although .the “copies to” portion of the order resulting from the January 16 hearing arguably supports the inference that the address provided by the mother at that hearing was 149 (not 144) Pinecone Court, without a transcript of that hearing,4 we cannot know for sure. It was the mother’s burden to demonstrate reversible error in the trial court’s finding that the address she provided at the January 16 hearing was 144 (not 149) Pinecone Court, and without a transcript of that hearing, the mother is unable to meet that burden. Id. (“The trial court should, have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.”); see also JP Morgan Chase BomIc-.v. Combee, 883 So.2d 330, 331 (Fla. 1st DGA 2004) (“The burden is on the appellant to demonstrate reversible error and present an adequate record for review.”).

Accordingly, because the mother has not presented an adequate record to demonstrate reversible error in the May 5 order, *1016we affirm that order as well as the order denying the mother’s motion to set aside the May 5 order.

AFFIRMED.

WOLF, WETHERELL, and KELSEY, JJ., concur.


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