MOISES FIGUEROA v. STACEY KOSSIVER
Case No. 5D21-1963
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
April 8, 2022
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED; LT Case No. 05-2009-DR-064246
Appeal from the Circuit Court for Brevard County, Jeffrey Mahl, Judge.
Moises Figueroa, Tampa, pro se.
Lindsey M. Sharp, of Sharp & Dye Attorneys, Indialantic, for Appellee.
LAMBERT, C.J.
Moises Figueroa (“Former Husband“), appearing pro se, appeals the trial court‘s unelaborated order approving and adopting the report of the general magistrate and directing that the parties comply with its terms in all
We begin with the initial observation that in appellate proceedings, the decision of the trial court is presumed to be correct, see Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), and that Former Husband, as the appellant, has the burden on appeal to show how the trial court reversibly erred. See Filomia v. Celebrity Cruises Inc., 271 So. 3d 1199, 1199-1200 (Fla. 3d DCA 2019) (recognizing that it is well-settled in appellate proceedings that “the burden is on the appellant to demonstrate error” (quoting Applegate, 377 So. 2d at 1152) (additional citations omitted)). That Former Husband is not represented by counsel here is of no consequence because this burden remains “squarely upon the litigant,
In an effort to meet his burden of showing that the trial court reversibly erred, Former Husband‘s pro se initial brief expresses significant disagreement with many of the factual findings made and conclusions reached by the magistrate from the evidence presented at the hearing. It is unnecessary to our disposition of this appeal to relate these various findings, other than to note that they were generally adverse to Former Husband. From these findings, the magistrate concluded in his report that Former Wife had shown that a substantial and unanticipated change in circumstances had occurred since the final judgment and that modification of the parties’ previously-established shared parental responsibilities and time-sharing with their child was in the child‘s best interests. In reaching this conclusion, the magistrate‘s report specifically addressed each non-exclusive factor listed in
Our review of Former Husband‘s brief suggests that Former Husband may misunderstand both the trial court‘s scope of review when addressing a magistrate‘s report and recommendations, as well as the parameters of our review as an appellate court. Addressing the former, we first explain to
Significant to the trial court‘s review process here, Former Husband filed no exceptions to the magistrate‘s report. See
In the context of this appeal, the ramifications to Former Husband of his not filing any exceptions to the magistrate‘s report are significant. A trial court, such as in this case, is “bound by the general [magistrate‘s] factual findings [contained in the report] unless they are not supported by competent substantial evidence.” Ward v. Dones, 90 So. 3d 826, 828 (Fla. 3d DCA 2012) (quoting Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d DCA 2006)). The result of Former Husband‘s decision not to file exceptions to the magistrate‘s report was that no transcript of the evidentiary hearing held before the magistrate was prepared. Thus, without the transcript setting forth the testimony and other evidence from the hearing, the trial court could not conclude that the evidence before the magistrate, when the magistrate
Consequently, Former Husband‘s ability to obtain appellate relief from our court became limited to whether he could show us that there was an error of law committed. Moreover, with no transcript from the hearing before the magistrate, Former Husband necessarily had to show legal error on the face of the trial court‘s order adopting and approving the magistrate‘s report or the report itself. Cf. Marshall v. Marshall, 953 So. 2d 23, 25 (Fla. 5th DCA 2007) (“Because there is no trial transcript, our review is limited to errors that may appear on the face of the amended final judgment.“).
However, Former Husband raises no argument in his initial brief that such an error of law appears in the trial court‘s order or the magistrate‘s report. His failure to raise this argument results in a waiver of any claim for reversal on this ground. See Tillery v. Fla. Dep‘t of Juv. Just., 104 So. 3d 1253, 1255-56 (Fla. 1st DCA 2013) (holding that an argument not raised in an initial brief is waived). Moreover, even if such an error does exist, “it is not the function of [an appellate court] to rebrief an appeal [for a party],” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983), or to otherwise “extend a helping hand to litigants not represented by counsel.” Steele, 596 So. 2d at 1191.
To be fair, the principles of appellate law outlined in this opinion explaining our affirmance may appear foreign to Former Husband, as well as to many of our other litigants who appear before us without an attorney. Former Husband‘s initial brief suggests that he viewed our function as an appellate court as one that would reconsider or reweigh the evidence presented before the magistrate and thereafter come up with a different resolution of the case.
Former Husband‘s view, however, is misplaced. An appellate court is “not simply another forum to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome.” Id. Rather, the question before an appellate court is “generally not a question of whether the appellate court agrees or disagrees with the result reached in a particular case, but whether that result was reached in a fair manner and was within the jurisdiction and authority of the court or agency whose decision is being appealed.” Id.
Pertinent here, our standard of review of a trial court‘s order issued on a magistrate‘s report and recommendation is de novo. See P.D.V-G. v. B.A.V-G., 320 So. 3d 885, 888 (Fla. 2d DCA 2021). Applying this standard,
AFFIRMED.
EVANDER and NARDELLA, JJ., concur.