AUGUST CHRISTINE CAVE, APPELLANT,
v.
FELIPE RIOS, APPELLEE

Fla. 3d DCA | 2009-07-15
No. 3D08-2181
Before GERSTEN, SUAREZ and ROTHENBERG, JJ.
15 So. 3d 760 Florida District Court of Appeal, Third District (2009) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Mother appeals the trial court's denial of her petition to modify custody, seeking to change primary residential responsibility from father to herself based on alleged substantial changes in circumstances. The appellate court affirmed the denial because the mother failed to provide a complete record on appeal, including trial transcripts or statement of evidence, precluding meaningful appellate review.


Holding

The appellate court affirmed the trial court's denial of the modification petition because the mother failed to provide an adequate record for appellate review, including trial transcripts or a statement of the evidence. Without such documentation, meaningful appellate review is precluded, and the court must assume the trial court ruled correctly.


Headnotes

[1] A trial court's order denying a petition to modify custody is presumed to be correct on appeal, especially when based on factual findings.

[2] A deposition not admitted into evidence at trial is not part of the record on appeal.

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Key Quotes

“a judgment from the trial court comes to an appellate court clothed with a presumption of correctness”

Establishes the high standard of deference appellate courts give to trial court decisions, particularly on factual matters.

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Facts & Procedural History

In June 2001, a final judgment of dissolution awarded the mother and father shared parental responsibility of two minor children, but designated the f…

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Opinion of the Court
ROTHENBERG, J.

ROTHENBERG, J.

August Christine Cave (“mother”) appeals from the denial of her petition to modify custody. We affirm.

In June 2001, an amended final judgment of dissolution of marriage awarded the mother and Felipe Rios (“father”) shared parental responsibility of their two minor children, but awarded primary residential responsibility of the children to the father. In October 2007, the mother filed a petition to modify custody, asserting that there had been a substantial change in circumstances warranting a modification of the primary residential parent designation from the father to the mother, and that the modification would be in the children’s best interest. Following a trial, at which the trial court heard testimony from numerous witnesses, the trial court entered an order denying the mother’s petition to modify custody based on specific findings of fact.

On appeal, the trial court’s order denying the mother’s petition to modify custody comes to this Court clothed with a presumption of correctness. See Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, 949 So.2d 347, 349 (Fla. 4th DCA 2007) (holding that “a judgment from the trial court comes to an appellate court clothed with a presumption of correctness,” and that “this presumption of correctness is even stronger when reviewing a judgment based upon the factual findings of the trial court”). In support of her argument that the trial court abused its discretion by denying her petition to modify custody, the mother improperly relies on the father’s deposition testimony, as it was not admitted into evidence, and therefore not a part of the record on appeal. See Gross v. Hat-maker, 173 So.2d 158, 160 (Fla. 2d DCA 1965) (holding that a deposition that is not introduced into evidence at trial is not a part of the record on appeal). Furthermore, as the mother has not filed a transcript of the trial or a statement of the evidence, as permitted under Florida Rule of Appellate *762Procedure 9.200(b)(4), no meaningful appellate review can occur in this case, and therefore, we must affirm the order under review. See S.R.J. v. State, 997 So.2d 498, 499 (Fla. 5th DCA 2008) (“With no ability to review any portion of the adjudicatory proceeding on appeal, no meaningful appellate review can occur in this case.”); Smith v. Orhama Inc., 907 So.2d 594, 596 (Fla. 3d DCA 2005) (“As the appellants have failed to submit a transcript of the proceedings below, we conclude that the appellants have failed to meet their burden and that meaningful review is precluded.”); S. Fla. Apartment Ass’n v. Dansyear, 347 So.2d 710, 711 (Fla. 3d DCA 1977) (finding that it is the responsibility of the appellant to provide a sufficient record for review, and that the failure to do so leaves the appellate court with no alternative but to assume that the trial court ruled correctly).

Affirmed.


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Citator

Cited By

  • FAY v. Craig, 99 So. 3d 981 (Fla. 5th DCA 2012)
    …etermination that Appellant has met his burden to furnish the necessary record. To a large extent appellants proceed at their peril when they furnish a partial transcript. See, e.g., Estes v. Sassano, 47 So. 3d 383 (Fla. 1st DCA 2010); Cave v. Rios, 15 So. 3d 760 (Fla. 3d DCA 2009); Schmitt v. Maile, 946 So. 2d 60 (Fla. 4th DCA 2006); Mayfield v. Mayfield, 929 So. 2d 671 (Fla. 5th DCA 2006). Nor should Appellant assume that he will get another “opportunity” to supplement the record pursuant to rule 9.200(f)(…
  • Veronika Clark v. Harrison, 98 So. 3d 783 (Fla. 4th DCA 2012)
    …PER CURIAM. Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979); Cave v. Rios, 15 So. 3d 760 (Fla. 3d DCA 2009) (stating that the mother’s failure to file a transcript of the trial court proceeding denies any meaningful appellate review and requires an affirmance). POLEN, GROSS and CONNER, JJ., concur.…

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