EDWARD C. MOYER, APPELLANT,
v.
HELEN M. MOYER, APPELLEE
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The appellate court affirmed the divorce decree because the appellant failed to provide a sufficient record to review the lump sum alimony award.
The defendant husband appealed a final divorce decree, specifically challenging the lump sum alimony provision. The appellate court was presented only…
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The defendant husband appeals from a final decree of divorce entered in favor of the appellee wife. The decree included a lump sum alimony provision. Appellant’s sole point is directed to a determination of the propriety of the lump sum alimony award. The record with which we are presented contains only the pleadings in the case. Inasmuch as we are unable to determine the propriety of the award to which error is assigned without reference to the evidence before the chancellor, we affirm the decree. Hall v. Davis, Fla.App.1958, 106 So.2d 599; Greene v. Hoiriis, Fla.App.1958, 103 So.2d 226.
Although not necessary to a decision in this case it should be noted that the obligation to furnish a record sufficient to support the appeal is upon the party urging error. Rule 3.6(b) Florida Appellate Rules, 31 F.S.A. The appellant urges as an extenuating circumstance for his failure to bring us a proper record that there was no court reporter present at the time of the taking of the testimony. It is not in keeping with the orderly processes of law that there should be a time when an appeal is impossible because a court reporter was not *639employed by one of the parties. We point out first that a stenographic transcript of the testimony is not necessary for an appeal. Rule 3.6(h), Florida Appellate Rules, 31 F.S.A.,1 not only provides for the use of narrative statements of the testimony, but frankly endeavors to encourage such simplified appeals. Good lawyers are reasonable men. As officers of the court they are interested in aiding both the trial and appellate courts in an orderly and expeditious disposition of the cases before them. Experience demonstrates that practicing lawyers place their personal honor far above the interest of any client. Therefore, they will often find occasions when agreement may be reached upon a narrative statement of the testimony although no stenographic record is available.
There are undoubtedly occasions where even the most fair-minded protagonists cannot agree upon a statement of the testimony which was not reported. The legislature has provided a method for the inclusion of a statement of testimony by recital in an order of the court.2 Cf. Cleary Bros. Const. Co. v. Phelps, 156 Fla. 461, 24 So.2d 51. See also Vliet v. Anthony, 119 Fla. 638, 160 So. 663, 664, which although decided under a procedure no longer followed contains the following statement of law which is still applicable:
“ * * * It is the duty of a court a quo to perfect its records in a case being appealed, in order that the final record taken to the appellate court by means of a transcript of it may truly reflect there the record of what was acted upon in the court a quo *
Florida Appellate Rule 3.6(f),3 provides a method for the settlement of a record where material portions have been omitted by error or accident. It will be recognized that by Rule 3.8,4 Florida Appellate Rules, the inherent power of the trial court to make a record speak the truth is recognized.
*640A case which clearly indicates the power as well as the desire of an appellate court to establish a record where the right of appeal would otherwise be lost is Pottash v. Dry & Company, 8 Fla.Supp. 174. In that case, the Plonorable Charles A. Carroll, then circuit judge acting as an appellate judge for the Civil Court of Record, in and for Dade County, Florida, settled a record upon an appeal from the Civil Court of Record to the circuit court, by applying former Supreme Court Rule 11(4).
Having determined that a sufficient record was not presented for a review of this cause it appears that the appellant has failed to demonstrate error and that the decree of the court below must be affirmed.
Affirmed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (19 total)
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Lottie Sykes Downing v. Bird, 145 So. 2d 559 (Fla. 3d DCA 1962)…her petition for rehearing], but the record should have been established in accordance with the principles laid down in Potash v. Dry & Company, 8 Fla.Supp. 174, which procedure was cited with approval by this court in Moyer v. Moyer, Fla.App.1959, 114 So. 2d 638. Therefore, for the reasons above stated, the orders [review of which are sought by these proceedings] be and they are hereby affirmed. Affirmed.…
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The Travelers Ins. Co. v. Agric. Delivery Serv., 262 So. 2d 210 (Fla. 2d DCA 1972)…ide any solution, mainly because the facts of each particular case are different and no case parallels the situation here. A brief review of the cases cited by the respective parties to this Court here may be in order. Moyer v. Moyer, Fla.App.1959, 114 So. 2d 638, cited by both parties, was a 3rd District Court case involving an appeal in a divorce proceeding wherein “the propriety of the lump sum alimony award” was in question. The record filed in the District Court contained only the pleadings in the trial…
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Turnipseed v. Turnipseed, 158 So. 2d 808 (Fla. 1st DCA 1963)…ancellor in the exercise of sound judicial discretion, citing Thompson v. Thompson, 86 Fla. 515, 98 So. 589; and further held that the same is true under F.S. section 65.09, F.S.A., citing Condon v. Condon, 117 Fla. 98, 157 So. 177. Moyer v. Moyer, 114 So. 2d 638 (Fla.App.1959), is a case in which the record on appeal contained only the pleadings in the case. The Third District Court of Appeal, Pearson, J., affirmed on the ground that the court was unable to determine the propriety •of the award to which err…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NIX v. Lake W. Koontz, 103 So. 2d 226 (Fla. 2d DCA 1958)
- Hall v. Davis, 106 So. 2d 599 (Fla. 1st DCA 1958)
- Cleary Bros. Constr. Co. v. Phelps, 156 Fla. 461 (Fla. 1945)
- Vliet v. Anthony, 119 Fla. 638 (Fla. 1935)
- Pottash v. DRY & Co., 8 Fla. Supp. 174 (Dade Cty. Cir. Ct. 1956)
- Tolliver v. Loftin, 156 Fla. 461 (Fla. 1945)