336 So.3d 1260
Fla. Dist. Ct. App.2022Background
- Moises Figueroa (Former Husband), pro se, appealed the trial court’s order adopting a general magistrate’s report that granted Stacey Kossiver’s (Former Wife) amended petition to modify shared parental responsibilities and time‑sharing established in the final judgment of dissolution.
- A general magistrate conducted an evidentiary hearing, found a substantial and unanticipated change in circumstances, and recommended modification as being in the child’s best interest after addressing the section 61.13(3)(a)–(t) factors.
- Figueroa filed no exceptions to the magistrate’s report and no transcript of the magistrate’s evidentiary hearing was prepared.
- The trial court, without holding a hearing, adopted and approved the magistrate’s report and denied Figueroa’s contemporaneous contempt motion as recommended.
- On appeal, Figueroa challenged factual findings and conclusions; the Fifth District explained the appellant’s burden to show reversible error, the limits on review absent a transcript, and affirmed the trial court’s order.
Issues
| Issue | Plaintiff's Argument (Figueroa) | Defendant's Argument (Kossiver) | Held |
|---|---|---|---|
| Whether the trial court erred in adopting the magistrate’s report granting modification | Magistrate’s factual findings and conclusions were wrong and modification was improper | Magistrate’s findings were supported by the evidence and the court properly adopted the report | Affirmed—appellant failed to show reversible error |
| Effect of failing to file exceptions to the magistrate’s report | Trial court should reconsider or reweigh the evidence despite no exceptions | Failure to file exceptions waived review of factual findings and precluded a transcript-based challenge | Failure to file exceptions bound trial court to magistrate’s factual findings; no transcript means factual challenges cannot be raised on appeal |
| Proper scope of trial court review of a magistrate’s report | Appellant sought de novo reweighing of evidence | Trial court’s review limited to whether findings are supported by competent substantial evidence or include legal error | Trial court may not substitute its judgment; review is whether findings are supported by competent substantial evidence or show legal error |
| Scope of appellate review without a transcript | Appellant expected appellate reweighing of evidence | Appellate review is limited to errors apparent on the face of the order/report when no transcript exists | Without a transcript, review is limited to legal errors on the face of the record; none were raised, so affirmance was proper |
Key Cases Cited
- Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) (trial court decisions are presumed correct; burden on appellant to show error)
- Steele v. Florida Unemployment Appeals Commission, 596 So. 2d 1190 (Fla. 1st DCA 1992) (pro se litigant bears same burden on appeal as represented litigant)
- Cerase v. Dewhurst, 935 So. 2d 575 (Fla. 3d DCA 2006) (trial court may not substitute its judgment for magistrate’s findings)
- Middleton v. Hager, 179 So. 3d 529 (Fla. 3d DCA 2015) (trial court review of magistrate limited to competent substantial evidence and legal error)
- Ward v. Dones, 90 So. 3d 826 (Fla. 3d DCA 2012) (trial court bound by magistrate’s factual findings unless not supported by competent substantial evidence)
- Marshall v. Marshall, 953 So. 2d 23 (Fla. 5th DCA 2007) (without a trial transcript, appellate review is limited to errors on the face of the judgment)
- Tillery v. Florida Department of Juvenile Justice, 104 So. 3d 1253 (Fla. 1st DCA 2013) (issues not raised in the initial brief are waived)
- P.D.V‑G. v. B.A.V‑G., 320 So. 3d 885 (Fla. 2d DCA 2021) (standard of review for trial court order on magistrate’s report explained)