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Florida District Courts Seem to Be Reconsidering the Rehearing Rule in Florida Alimony Cases

The Fourth District Court of Appeals Recedes From Farghali and No Longer Requires Rehearing

In Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018), the Fourth District Court of Appeals took up the issue as whether the failure to file a motion for rehearing, in an alimony case, failed to preserve the issue of the trial court’s lack of factual findings to support its conclusions. In its ruling The Fourth District receded from its ruling in the Farghali case and decided that it “is reversible error regardless of whether a motion for rehearing is filed.” Fox, 262 So.3d at 791.

The Fourth District Court of Appeals recognized the fact that its decision in Fox v. Fox was not in harmony with the other District Court of Appeals in Florida but also pointed out that their decisions requiring rehearing and not supported by any rules of procedure. In its rationale the court stated: “Despite the other districts’ decisions requiring a party to file a motion for rehearing to preserve the issue of a trial court’s failure to make statutorily required findings in alimony, equitable distribution, and child support, we adhere to our precedent that a party may raise the issue without having previously filed a motion for rehearing. This is because the rules do not require the filing of a motion, many dissolution appeals are pro se, and a family court judge should be aware of the statutory requirements in rendering a decision on alimony, equitable distribution, and child support. Id. at 793.”

The Fourth District went on in an unusual set of circumstances, in a subsequent alimony case, and overruled its own decision in Farghali and in doing so stated: “We therefore adhere to our prior precedent that is consistent with this opinion. We approve the rule applied in Badgley, Rental, Mondel, Aguirre, and Dorsett. We recede from our opinions in Farghali and Kuchera to the extent they adopted a new rule requiring a motion for rehearing to raise a trial court’s failure to make statutorily required findings on appeal. Id. at 794-95.”

The Second District Court of Appeals Also No Longer Requires Rehearing:

The Fourth is not alone in receding from what appeared to be a clear requirement to file a motion for rehearing to preserve the error when a trial court failed to make the necessary factual findings in an alimony case. In reaching its conclusion, The Second District stated that: “we fail to see why this special rule of preservation should be implemented in family law proceedings when Florida courts routinely reverse errors that are apparent on the face of a judgment in other areas of the law without indicating that preservation by a motion for rehearing is required.” Id. at 1711.

This Issue Is Ripe For Clarification From The Florida Supreme Court:

The decision in Engle and Fox have been certified as a conflict with the First District Court’s opinion in Owens, 973 So.2d 1169, the Fifth District Court’s opinion in Mathieu, 877 So.2d 740, the Third District Court’s opinion in Broadfoot, 791 So.2d 584 and the other cases that have relied on or reaffirmed applying this “preservation” rule that has been rejected by the Second and Fourth Districts. The Supreme Court of Florida has yet to take up the issue and bring harmony to the Florida District Court of Appeals on this issue of whether a rehearing is required to preserve the issue when the trial court fails to make required factual findings in a Florida alimony case.

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