Posted by Nydia Streets of Streets Law in Florida Alimony
When a party is unhappy with a Florida divorce court’s ruling, what is the next step? The party may be able to appeal the final judgment, but must be sure to comply with deadlines and procedural requirements. One requirement that is often cited in Florida family law cases is the duty to file a motion for rehearing with the trial court before proceeding with an appeal. The case Engle v. Engle, 2D17-620 (Fla. 2d DCA July 3, 2019) highlights the confusion that this requirement causes among different courts in Florida.
In this case, the former husband filed an appeal on the basis that the trial court awarded permanent alimony to the former wife without making the findings required by Florida Statute 61.08. The former wife argued the former husband did not preserve his right to appeal this issue because he did not first file a motion for rehearing with the trial court that made the ruling. A motion for rehearing points out to the trial court what a party thinks the court got wrong in the order and gives the trial court a chance to correct it. In most instances, in Florida family law cases, if a party does not file a motion for rehearing, the party is said to waive his or her right to appeal to a higher court.
However, in this case, the appellate court examined the differences in opinion among Florida appellate courts on this issue and concluded, “The Former Wife, however, maintains that the Former Husband has not preserved this argument for appeal because he did not raise it in the trial court by way of a motion for rehearing. We do not agree. Such a preservation requirement is not supported by statute or rule of procedure. In chapter 61 the legislature provides clear instructions to trial courts to make specific mandatory findings of fact. But the legislature did not include a provision requiring a motion for rehearing to preserve a challenge to a lack of statutory findings. Nor has the Florida Supreme Court or the rules committee placed such a requirement upon family law litigants.”
The case was therefore sent back to the trial court to make the required findings to support the permanent alimony award, if any. If you are facing a Florida divorce, contact a Miami divorce attorney to go over your best claims and defenses. A consultation is where to start.