Orlando Family Law Appeals

In a divorce or family law case, you may wish to appeal the Final Judgment or Order of the Court. The appellate courts are designed to ensure checks and balances within the judicial system. If a trial court abused its discretion or failed to follow the law, the appellate court’s role is to review the facts presented, the judgment or order, and make a determination as to whether there was an abuse of discretion or an error. Appellate courts are typically comprised of three judges who review the record on appeal and the briefs of each party. On appeal, there are no evidentiary hearings. Instead, the appellant files an initial brief, which outlines the arguments as to how the trial judge committed error. The Appellee will then be given an opportunity to file an answer brief, which the Appellant may respond to by filing a reply brief. If one party requests oral argument, a date may be scheduled where the attorneys will be permitted to argue to the judges why his or her position is correct. The judges are also permitted to ask questions. No evidence or testimony is presented at oral argument.

Timeline to File Notice of Appeal

With any appeal, you must generally file your Notice of Appeal within 30 days of the rendition of the Final Judgment. Failure to file for an appeal timely could forever forfeit your rights to appellate relief. A motion for rehearing will toll the time to appeal in some cases. However, if you are appealing an order setting aside a judgment, a motion for rehearing will not toll the time to appeal. It is important to consult with an experienced family law appellate attorney prior to the thirty-day deadline to ensure that you do not forfeit your rights to appeal. Additionally, certain issues need to be raised in a motion for rehearing, which must be filed within 15 fays after the rendition of the order or judgment.

Record on Appeal

Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues to conclude whether the trial court’s judgment is supported by the evidence or not. Thus, for an appellate court to review the sufficiency of evidence at trial, the appellant must either include in the record a trial transcript or a proper substitute, such as a stipulated statement of facts. Florida courts typically will not reverse an order based on the sufficiency of required factual findings when there is no transcript or proper substitute in the record. However, if the trial court’s error is clear on the face of the order or judgment, the appellate court can reverse.

Further, when considering appealing a Final Judgment or order, the appellate court can only consider the evidence that was submitted to the trial court. The appellate court is not permitted to review new evidence. Therefore, it is important to submit a complete record of the trial court proceedings with your appeal. Typically, a complete record will include a transcript of the trial proceedings and all of the evidence that was submitted to the trial court. However, if a transcript is not available, the appellate court may review the final judgment to determine if there is error on the face of the final judgment.

Appeal of Temporary Orders

Most Final Judgments or Final Order are appealable to the district court of appeal. In determining the finality of an order, judgment, or decree, the test employed by the appellate court is whether the order appealed constitutes an end to judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties directly affected. For example, an order granting entitlement to attorneys’ fees is typically not ripe for appeal because the court still has additional labor to do in determining the amount of fees to be awarded.

Appeal of Final Order

In domestic or family court, most final orders are appealable. Additionally, certain temporary orders are appealable when the order involves alimony, child support, custody or timesharing, or attorneys’ fees. Temporary relief orders for alimony must be supported by competent, substantial evidence and are reviewed for an abuse of discretion. Additionally, if the judge fails to make the necessary requisite findings in a temporary relief order, the order may be overturned on appeal.

Notable Appeals Cases

Bacchus v. Bacchus, 108 So. 3d 712 (Fla. Dist. Ct. App. 5th Dist. 2013)(The clear purpose of § 741.30(5)(c), Fla. Stat. is to preserve the status quo pending a final evidentiary hearing. It does not contemplate entry of a series of temporary injunctions in lieu of a full hearing on a permanent injunction.)

Pillari v. Pillari, 968 So. 2d 580 (Fla. 5th DCA 2007)(alimony award upheld on appeal.)

Cogen v. Cogen, 992 So. 2d 865 (Fla. 5th DCA 2008) (it was error to award rehabilitative alimony where the former wife failed to present evidence of a rehabilitative plan.)

Topel v. Topel, 2014 Fla. App. LEXIS 20588 (Fla. Dist. Ct. App. 5th Dist. Dec. 19, 2014)(alimony awards must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse’s ability to pay).

Garcia v. Roldan, 2012 Fla. App. LEXIS 10636 (Fla. Dist. Ct. App. 5th Dist. 2012)(Dominican Republic divorce was not finalized prior to entry into second marriage, so second marriage was void).

Niazi v. Niazi, 179 So. 3d 365, 366 (Fla. 5th DCA 2015) (A contractual limitation to attorney’s fees in a prenuptial agreement is enforceable in an award of appellate attorney’s fees.)

Thomcha-Brancato v. Brancato, No. 2D15-2720, 2016 Fla. App. LEXIS 7571 (2d DCA May 18, 2016)(Denial of Wife’s claim for request in increase in nominal alimony award upheld on appeal)

Duke v. Duke, No. 5D16-120 (5th DCA Feb. 10, 2017)(Appellate Court reversed the alimony award, the attorney’s fees award, the requirement that Former Husband maintain life insurance, and the parenting plan in favor of our client.)

Badalameti v. Fiore, 197 So. 3d 562 (Fla. 5th DCA 2016)(the trial court’s granting  of the Wife’s Petition to Relocate was upheld on appeal.)

Brunsman v. Brunsman, 232 So. 3d 1175 (Fla. 5th DCA 2017)(§ 61.08(7), Fla. Stat. (2010) specifically provides that durational alimony awards are modifiable. § 61.08(7), Fla. Stat. (2010). Imposing a non-modifiable alimony requirement is an error in the absence of agreement between the parties or findings of exceptional circumstances, imposing a non-modifiable alimony requirement is error. There is no provision in the law for non-modifiable permanent alimony.)