Fourth DCA: Motion for Rehearing Is Necessary to Preserve Argument that Final Judgment Lacked Required Findings as to Equitable Distribution
Farghali v. Farghali, Case No. 4D14-1364 & 4D15-1461
(Fla. 4th DCA, March 9, 2016)*
The Fourth DCA recently decided a family law appeal with important ramifications on the ability of parties to raise certain issues in the appellate court. A fundamental rule of appellate procedure is that, in order to raise an issue on appeal, a party must have “preserved” the issue at the trial court level by bringing it to the court’s attention so the trial court has the opportunity to make the correct decision. Additionally, Florida law requires that certain trial court rulings in dissolution of marriage cases, such as rulings on equitable distribution, must be supported with specific written findings. A preservation problem can occur when the trial court’s final judgment fails to contain the specific written findings to support the ruling and a party fails to file a motion for rehearing to bring that error to the trial judge’s attention.
In Farghali v. Farghali, the former husband appealed several orders arising out of the dissolution of the parties’ marriage. The former husband argued, among other things, that the trial court erred in failing to make specific written findings as to the parties’ assets and liabilities. But the former husband did not file a motion for rehearing bringing the issue to the trial court’s attention.
On appeal, the Fourth DCA noted that the First DCA had already held that “a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.” Farghali, at *2 (quoting Simmons v. Simmons, 979 So. 2d 1063, 1064 (Fla. 1st DCA 2008)). The Fourth DCA took the opportunity to expressly adopt the same rule, and noted that the reason for the rule is to ensure that the trial judge has the opportunity to correct the defective order prior to an appeal. The Fourth DCA held that it was compelled to affirm the trial court’s decision because the former husband failed to bring the issue of the lack of findings to the trial court’s attention. The Fourth DCA also noted that the fact there was no transcript of the proceedings below supported its decision.
It is common for parties in family and dissolution of marriage cases to argue on appeal that the trial judge’s order lacks required findings. The Fourth DCA’s holding in Farghali appears to restrict a party’s ability to raise those lack-of-findings arguments on appeal, at least as to equitable distribution, by making a motion for rehearing in the trial court a clear requirement of the argument’s preservation.
* The decision is not final until disposition of any timely filed motions for rehearing.