Summary
noting that there is no "class of cases" exempt from the preservation requirement; affirming dissolution judgment asserted to be inconsistent with oral pronouncement "[b]ecause the alleged inconsistencies were never brought to the trial court's attention via a motion for rehearing" and "not preserved for appellate review"
Summary of this case from B.T. v. Fla. Dep't of Children & FamiliesOpinion
No. 1D19-0192
03-23-2020
Carrol Y. Cherry EATON, Appellant, v. Jacob Schiele EATON, Appellee.
Carrol Y. Cherry Eaton, pro se, Appellant. No appearance for Appellee.
Carrol Y. Cherry Eaton, pro se, Appellant.
No appearance for Appellee.
Wolf, J.
The former wife, Carrol Y. Cherry Eaton, challenges a final judgment of dissolution of marriage on the basis that the written judgment is inconsistent with the trial court's oral pronouncement. Because the alleged inconsistencies were never brought to the trial court's attention via a motion for rehearing, the matter is not preserved for appellate review. See Smith v. Smith , 273 So. 3d 1168, 1171 (Fla. 1st DCA 2019) ("[W]here an error by the court appears for the first time on the face of a final order, a party must alert the court of the error via motion for rehearing or some other appropriate motion in order to preserve it for appeal.") (quoting Williams v. Williams , 152 So. 3d 702, 704 (Fla. 1st DCA 2014) ); Moody v. Newton , 264 So. 3d 292, 294 (Fla. 5th DCA 2019) ("Because the alleged error first appeared in the final judgment, Former Wife was required to bring this matter to the lower court's attention in a motion for rehearing.").
This decision may appear to be at odds with the Fourth District Court of Appeal's decision in Fox v. Fox , 262 So. 3d 789 (Fla. 4th DCA 2018), which concluded that the trial court's failure to make statutorily required findings in dissolution of marriage cases was subject to appellate review even if the matter was not preserved via a motion for rehearing because of the importance of the subject matter involved in those cases—children and families—and the fact that many litigants proceed pro se. See id. at 794-95. The Fourth District also reasoned that there was no need for a motion for rehearing where the trial court should already be aware of the statutory requirements and therefore did not need the failure to comply with those requirements to be brought to its attention. Id. at 795.
First, this case may be distinguished from Fox , because there is no assertion that the judge failed to follow a particular statutory mandate. We also disagree with the underlying legal premises of the Fox decision. There are many legal requirements of which a trial court is presumably aware, yet appellate courts have held that a trial court's errors in failing to comply with those requirements must still be preserved. See, e.g. Bank of America, N.A. v. Ribaudo , 199 So. 3d 407, 408-09 (Fla. 4th DCA 2016) (concluding that "despite the trial court's clear errors" in failing to make the findings required by Kozel v. Ostendorf , 629 So. 2d 817, 818 (Fla. 1993), before dismissing the case, the issue was unpreserved because it was not raised in a motion for rehearing); Daniels v. State , 118 So. 3d 996, 997 (Fla. 1st DCA 2013) (holding that an inconsistency between the oral pronouncement and the trial court's written judgment was not properly preserved); Hentze v. Denys , 88 So. 3d 307, 311 (Fla. 1st DCA 2012) (concluding that the trial court's alleged error in failing to apply a statutory interest rate to the money judgment was unpreserved where it appeared for the first time in the final order, but the aggrieved party failed to file a motion for rehearing). The purpose of the preservation requirement is to ensure that the trial court has an opportunity to correct an error at the earliest opportunity, when the court is still in a position to recall the basis of its ruling. See Simmons v. Simmons , 979 So. 2d 1063, 1065 (Fla. 1st DCA 2008) ; cf. Castor v. State , 365 So. 2d 701, 702 (Fla. 1978) (explaining that the purpose of the contemporaneous objection rule is to "place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings"). As Judge Kuntz stated in his dissenting opinion in Fox ,
The requirement that a party preserve an issue is based on fairness to the litigants, the court, and the judicial system. By timely raising an issue, the litigant allows the judge an opportunity to correct the error. The litigant also affords the opposing party a chance to correct the error.
Thus, generally, preservation is required. As the First District explained,
It is difficult to overemphasize the importance, absent fundamental error, of preserving issues and arguments before asking an appellate court to reverse a trial court's final judgment. The importance of this principle is too often not appreciated, and appellate courts are constrained, as we are here, to affirm orders which otherwise might have been reversed.
262 So. 3d at 798 (quoting Pensacola Beach Pier, Inc. v. King , 66 So. 3d 321, 326 (Fla. 1st DCA 2011) ) (other citations omitted). We are also not aware of any authority that allows us to exempt a certain class of cases from the preservation requirement based upon a determination of the relative importance of the subject matter. Absent fundamental error, issues must be preserved for appeal. No argument regarding fundamental error has been made.
AFFIRMED .
Kelsey and Winokur, JJ., concur.