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Preserving the Record for Appeal

1. MOTIONS FOR REHEARING

RULE 1.530(e)
- When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

Welch v. Welch, 34 FLW D2472c (Fla. 1st DCA 2009)

- Former Wife argued there was no competent substantial evidence to support the calculation of her income

- To the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a timely motion for rehearing

- You can still attack the sufficiency of the evidence without a rehearing though

- Best bet is to be safe

Anaya v. Anaya, 987 So. 2d 806 (Fla. 5th DCA 2008)

- A party may not complain about “inadequate finding in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing.”

Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001)

- If a judgment is entered with required findings (such as findings on statutory factors), then a motion for rehearing should be filed, requesting findings

2. TIPS TO PRESERVE ISSUES FOR APPEAL

A. Objections

- Too many objections will often be uncomfortable to make because the judge might get mad at you…but they are important to preserve the record

B. File any submitted proposals

- To be done if the Judge requests proposed findings of fact or a proposed final Judgment

- The benefit is that we often argue a judge just rubber stamps a proposal submitted by the other party…the record must reflect that the trial court at least used its own reasoning to come to a decision

- Proposals must be filed to get appellate consideration

C. Argue at the Trial

- Attendance at a trial should be a first run on an appeal

- Know exactly what issues are at issue (alimony, timesharing, child support…)

- Have case law and statutes prepared to submit to the court

- Reference the legal sources in your argument to the judge so it is clear to anyone reading the transcript what arguments you made and the supporting law

- Make sure the record clearly shows the judge had the opportunity to be right

D. Transcript

- Make sure you have a court reporter at all hearings you think may need to be appealed

- Lack of a transcript does not preclude an appeal but it is extremely difficult

By Kenny Leigh