By the time a family law case makes it to trial, the litigants are almost always trying to cut costs as much as possible. Inevitably the following question will be asked: “Do I really need to pay to hire a court reporter?”

A court reporter is usually critical to preserve your right to appeal a final judgment. Without a transcript of your hearing, especially in the family law context, the appellate court is almost always bound to affirm the trial court’s ruling.

When an appellate court reviews a trial court’s decision, it can look only at information that is in the official record. The record includes all physical evidence that was admitted at trial and, where available, transcripts of the proceedings. The absence of a hearing transcript has been called the “most salient impediment to meaningful [appellate] review.” Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007). This is particularly true in family law cases where disputes are generally factual as opposed to legal in nature. In such circumstances, the appellant must prove that the trial court abused its discretion in its ruling, a burden that generally cannot be overcome without a transcript of the trial. This is because the appellate court must presume that the trial court was correct until it is presented with clear evidence to the contrary. See, e.g., Hoover v. Sprecher, 610 So. 2d 99, 100 (Fla. 1st DCA 1992) (“presumption of correctness” by appellate court is a “well-established proposition”).

Even if the appellant can show error, the reviewing court should not reverse unless it appears that the error actually resulted in harm to the complaining party. Although the Florida Supreme Court recently ruled that it is the appellee’s burden to prove “harmless error,” it is currently unclear how that burden applies to cases without transcripts. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1257 (Fla. 2014). This is because the statute governing harmless error states that a court may not reverse the judgment of a lower court unless it concludes “after an examination of the entire case” that harm has occurred. § 59.041, Fla. Stat. As such, the Second DCA has stated (albeit in an unpublished opinion) that where no transcript exists, it is unable to “evaluate the entire case” as required by the statute and therefore it must affirm the trial court’s order in most situations. Jericka v. Jericka, 40 Fla. L. Weekly D2659 (Fla. 2d DCA Dec. 2, 2015).

Does that mean that all hope is lost if no transcript exists? Not necessarily. First, there are exceptions to the rules above. For one, an order establishing child support that fails to contain certain findings must be reversed and remanded whether or not a hearing transcript exists. This is because the state has a unique interest in ensure that the rights of children are protected. See Wilcox v. Munoz, 35 So. 3d 136, 140 (Fla. 2d DCA 2010) (declining to extend general rule because “the right to child support belongs to the child, and it cannot be waived”). Another exception is when the trial court awards attorney’s fees and fails to include adequate findings in its written order. The Supreme Court has mandated that specific findings be present on the face of such an order, and the failure to include them automatically renders the order erroneous as a result. Esaw, 965 So. 2d at 1265 (Fla. 2d DCA 2007) (citing Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)).

Second, the appellate rules provide that as a substitute for a transcript, the trial court can enter a statement of the facts or a statement of the evidence that details what transpired at the hearing. This statement becomes part of the record and can, in some circumstances, facilitate appellate review. However, a statement of the facts must be carefully constructed or it will not resolve the issues caused by a lack of transcripts. Unless the statement directly and unequivocally addresses the issues on appeal, the appellate court will still presume that the trial court ruled correctly. See, e.g., Shofner v. Giles, 579 So. 2d 861 (Fla. 4th DCA 1991) (although record included a statement of the facts in lieu of a transcript, district court was required to presume that certain objections had not been made and were therefore waived at trial).

The lessons, then, are two-fold. First, make sure you have a court reporter at your final hearing unless there is a clear tactical advantage to not doing so (a topic that is beyond the scope of this article). Second, if you did not have a court reporter at your hearing but you need to appeal, you must ensure that you have a well-crafted statement of the facts entered into the record. The practical reality is that every statement of the facts is either written entirely by or with substantial input from the parties’ attorneys. As such, it is critical that you consult with an experienced appellate attorney prior to creating a statement of the facts to ensure that the statement gives you the best opportunity to succeed in your appeal.

If you have any questions, do not hesitate to contact me or the other attorneys at Felix, Felix & Baseman for a free consultation.

– Mark F. Baseman, Esq.