Perlow v. Berg-Perlow

We have for review Perlow v. Berg-Perlow, 816 So.2d 210 (Fla. 4th DCA 2002), which expressly and directly conflicts with the decision in Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5th DCA 2000), quashed on other grounds, 838 So.2d 508 (Fla.2003). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated below, we quash the decision of the Fourth District and hold that in a marital dissolution proceeding: (1) the trial judge may ask both parties or one party to submit a proposed final judgment; (2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgment and make objections; (3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and (4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.

FACTUAL AND PROCEDURAL HISTORY

Esig Perlow (the husband) and Sharon Berg-Perlow (the wife) were married in 1986, and their only child, Adam, was born in 1991. At one time the parties resided in California where the husband was an attorney. In 1998 the wife commenced divorce proceedings. The husband’s first lawyer filed a financial affidavit on his behalf showing his income for 1996 to be $177,000 and for 1997, the year preceding the petition, slightly less.

Initially, the wife sought primary custody of Adam with shared parental responsibility and liberal visitation to the husband. However, during the dissolution, Adam’s behavior worsened, and he became verbally and physically abusive both with the wife and at his school. The record shows that the husband actively and repeatedly undermined Adam’s psychological treatment, including threatening Adam’s psychologist. Therefore, the wife sought and obtained increasingly limited interaction between Adam and the husband.

Before the final hearing, three different attorneys represented the husband. The last attorney, Ken Renick, filed a motion for temporary fees and costs on the husband’s behalf but with the court’s permission withdrew from representation before the motion was heard. The husband proceeded pro se thereafter. On December 19, 1999, more than two months before the final hearing, the trial judge conducted a hearing on the husband’s motion for temporary attorney’s fees. Renick, who had already withdrawn from representation, appeared and testified at that hearing as to the amount of attorney’s fees that he estimated would be incurred in representing the husband in the dissolution proceeding. The husband gave sworn testimony at the hearing that he did not have the financial resources to hire an attorney but failed to present an attorney to testify as to the attorney’s willingness to represent him and the amount of attorney’s fees sufficient for his representation. The husband testified that $123,000 of the $177,000 income reported on his financial affidavit for the year 1996 was in dispute. He claimed that he had filed an amended financial affidavit. However, the trial judge could not find the amended affidavit in the court file, and the wife’s counsel denied having received a copy of it. The husband testified that he had no income during the years 1997, 1998, and 1999 due to a heart condition and that he had declared bankruptcy.

The trial judge found that, because the husband had failed to show an obligation to pay attorney’s fees or to show that the absence of an anticipatory award prevented him from obtaining counsel, he had failed to demonstrate need. The judge also explained that he did not have sufficient evidence to determine the amount of an award because there was no evidence as to the hourly rate that would be charged by an attorney who would be willing to represent the husband. The court order provided that the husband’s request for temporary attorney’s fees was denied without prejudice to allow the husband to seek temporary attorney’s fees after retaining counsel should he do so. No further request for fees was made between December 19, 1999, and February 22, 2000.

On February 22, 2000, the case proceeded to trial. On the opening day of the trial, the husband made a motion for a continuance, which the trial judge denied. The husband then absented himself from the proceedings without leave of the judge, and the wife began presentation of her case in the husband’s absence. After the lunch recess, the husband reappeared and moved for temporary attorney’s fees. Although the husband presented an argument to the judge, he failed to present any evidence. Therefore, the judge denied his motion for temporary attorney’s fees. However, the judge informed the husband that he would hear his motion for attorney’s fees if he returned the following day with an attorney.

On the following day as instructed, the husband appeared in court with an attorney, Peggy Rowe-Linn, and the judge recessed the trial proceedings. The judge informed Rowe-Linn that when the husband indicated that he did not have sufficient funds to retain an attorney to represent him, the judge informed the husband that he would have to have an attorney join the case and state to the judge that the attorney would be willing to handle the case for the husband. The judge stated that, after a cursory review of the financial affidavits, it appeared “somewhat likely” that he would reserve jurisdiction for fees and that the husband might be entitled to fees and costs when the case was concluded. Finally, the judge stated to Rowe-Linn that the ultimate question was whether she wanted to take the case knowing that it was uncertain whether she would ultimately get paid. The judge stated that he could not delay the trial or continue it. Rowe-Linn responded that, if this were an instance where the only funding of the litigation were to occur after the entry of a final judgment on a reservation of fees, not only would she refuse to take the case, but every attorney in Palm Beach County would refuse it as well, since this was a case of not less than fifteen days’ trial duration. Neither Rowe-Linn nor the husband presented sworn testimony at this proceeding. Rowe-Linn did not testify, nor did she estimate the amount of her expected fee, her hourly rate, or the amount of time required for the representation. The trial judge thus denied the husband’s motion for temporary attorney’s fees and stated his intent to conduct a hearing on the issue of entitlement at the end of the trial.

Prior to the closing arguments in this fifteen-day trial, the husband asked the judge whether he should prepare a proposed final judgment. The judge responded that he did not expect the husband to do so and that if the case was decided in the husband’s favor, a staff of legal aides assigned to the family division would work with the judge to draft a final judgment. On the following day and prior to closing arguments, counsel for the wife submitted a proposed final judgment. After closing arguments, the judge asked the husband whether he had drafted a proposed final judgment. The husband stated that he had not but asked whether he could submit one later that day. Once again, the judge stated that it was unnecessary for the husband to do so and that the staff of legal aides would draft a final judgment if the ease was decided in the husband’s favor.

The final judgment proposed by the wife’s counsel was signed without modification by the trial judge within two hours of the closing arguments. The final judgment submitted was twenty-five pages in length, with six additional pages of financial exhibits incorporated by reference. The judgment awarded sole parental responsibility of Adam to the wife, finding that it would cause great detriment to Adam to do otherwise, and ordered the husband to have absolutely no contact with Adam until age fourteen. However, the judgment permitted the husband to thereafter petition the court to allow him to have contact with Adam, provided the husband was able to show a substantial change of circumstances. Lastly, the judgment ordered the husband to pay reasonable fees and costs for the “vexatiousness of the litigation” as it pertained to the discovery process and provided that the amount of fees be determined in a later evidentiary hearing.

On appeal before the Fourth District, the husband unsuccessfully raised eleven issues, three of which he now presents to this Court: (1) the judge improperly delegated his decision-making authority to the wife’s counsel by adopting the proposed final judgment verbatim within two hours after closing arguments; (2) the judge erred in failing to hold a hearing during the trial to determine the husband’s entitlement to temporary attorney’s fees, even if this required a continuance; and (3) the judge erred in denying the husband’s motion to appoint a guardian ad litem arguing that if, as the Fifth District held in Cothron v. Hadley, 769 So.2d 1148 (Fla. 5th DCA 2000), it is reversible error not to appoint a guardian ad litem before changing a child’s name, then it must be reversible error not to appoint a guardian ad litem before severing all ties between a child and his father.

With respect to the issue of improper delegation of the trial judge’s role, the Fourth District held that, even though the judge wholly adopted the wife’s proposed final judgment within two hours of the closing arguments, the final judgment should be affirmed. Perlow, 816 So.2d at 217. The Fourth District disagreed with the husband’s argument that its holding conflicted with the Fifth District’s holding in Rykiel. Id. To support its conclusion, the Fourth District referred to two subsequent Fifth District cases which, in its view, clarified the Rykiel holding: Douglas v. Douglas, 795 So.2d 99 (Fla. 5th DCA 2001), and Thomas v. Thomas, 781 So.2d 540 (Fla. 5th DCA 2001). In Douglas, the Fifth District stated that the trial judge in Rykiel had not been prepared and was not knowledgeable of the case before adopting the final judgment. Therefore, that judge’s verbatim adoption of counsel’s proposed final judgment in Rykiel constituted reversible error. See Douglas, 795 So.2d at 100 n. 1. In Thomas, the Fifth District also rejected the argument that Rykiel stood for the rule that a proposed final judgment adopted verbatim by a trial court is reversible error and concluded, in accord with its holding in Douglas, that reversal of the final judgment in Rykiel was due to that judge’s lack of preparation and knowledge of the case. See Thomas, 781 So.2d at 540-41. In the instant case, the Fourth District concluded that the record contained evidence which supported the judge’s findings of fact and dispositions made in the final judgment. Therefore, the Fourth District concluded, the judge’s adoption of the proposed final judgment was neither an abuse of discretion nor reversible error. Perlow, 816 So.2d at 217.

On the issue of entitlement to a hearing on temporary attorney’s fees, the Fourth District held that the trial court did not abuse its discretion when it denied the husband’s motion for a continuance nor when it denied the husband’s motion for attorney’s fees since the husband had procrastinated in seeking counsel. Id. at 215. Lastly, on the issue of appointment of a guardian ad litem, the Fourth District held that the husband’s interpretation of Coth-ron was incorrect, disagreed with the husband’s characterization of the final judgment as a termination of his parental rights, and concluded that the trial court did not abuse its discretion when it denied the husband’s motion for the appointment of a guardian ad litem because he had waited until the trial had commenced before making the motion. Id. at 216.

DISCUSSION

The husband argues that the trial judge improperly delegated his decision-making authority when he entered the wife’s twenty-five-page proposed final judgment two hours after the trial concluded and made no changes to that proposed final judgment. The husband relies on Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5th DCA 2000), quashed on other grounds, 838 So.2d 508 (Fla.2003), for the argument that such a procedure is reversible error. In Rykiel, the Fifth District reversed a final judgment of dissolution of marriage where the trial judge wholly adopted the former wife’s counsel’s proposed judgment, stating:

Although a trial court may request, as it did in this case, that counsel for both parties submit a proposed final judgment, the court may not adopt the judgment verbatim, blindly, or without making in-court findings. Review of the findings and conclusions of such a judgment is hampered or made impossible by the trial court’s lack of participation. In this case, the record contains no findings or conclusions by the trial court, and the final judgment has no corrections, additions or deletions on its face. Under these circumstances, meaningful review by this court is impossible.

Id. at 92 (citations omitted).

In the instant case, the trial judge made no changes, additions, or deletions to the twenty-five-page final judgment proposed by the wife’s counsel and signed this judgment within two hours after its submission. Perlow, 816 So.2d at 217. Moreover, the trial judge did not make any findings of fact or conclusions of law on the record. As a result, the husband asserts that Ryk-iel and the instant case are factually indistinguishable, and there is a conflict. The Fourth District stated that the husband is incorrect in this assertion. Id. The Fourth District stated that, while it might appear that there is a conflict between the two district courts, subsequent opinions issued by the Fifth District, namely Thomas and Douglas, have clarified the Rykiel holding so that this conflict is illusory. Id. We disagree with the Fourth District on this point.

While it is true that the courts in Douglas and Thomas sought to clarify the factual circumstances of Rykiel, it is clear that the facts relied upon in those subsequent decisions do not appear on the face of the Rykiel opinion and thus cannot be used in determining whether or not there is conflict. The Rykiel opinion on its face indicates that a proposed final judgment submitted without any in-court findings by the trial judge and without any corrections, additions, or. deletions cannot be meaningfully reviewed by an appellate court. On the other hand, the appellate court in this case, under similar circumstances, found that the case could be properly reviewed and affirmed the trial court’s ruling, concluding that the findings in the proposed order were supported by competent, substantial evidence. We agree with the husband that this case conflicts with the Fifth District’s decision in Rykiel.

In marital dissolution proceedings, it is quite common for the trial judge to request that both sides present a proposed final judgment at the conclusion of the case. See, e.g., Merkin v. Merkin, 804 So.2d 595, 598 (Fla. 2d DCA 2002) (“It is not uncommon for a trial court to instruct the attorneys to prepare proposed final judgments.”); Flint v. Fortson, 744 So.2d 1217, 1219 (Fla. 4th DCA 1999) (“[W]e cannot foreclose the trial court’s practice of requesting proposed final judgments from the parties. Such submissions can be useful to the trial judge in the' decision making process.... By using the attorneys’ submissions as a checklist, a judge can ensure that the final judgment is complete and avoid the necessity of motions for rehearing to correct omissions.”). Additionally, the comment to Canon 3B(7) of the Florida Code of Judicial Conduct contemplates this type of procedure and provides:

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other, parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

However, in the instant case, the trial judge did not request a proposed final judgment from the husband. Rather, at the conclusion of the evidence when the husband asked the trial judge whether he needed to prepare a proposed final judgment, the trial judge stated:

I sort of didn’t expect you to have one. So what we do have on staff is legal aids that are assigned to the family division and they would have — basically if I de-' cide in your favor, then I will be working with them to come up with a final judgment. But, if you have one to present, by all means present it.

On the following day at the conclusion of the closing arguments and after the wife’s attorney had submitted a proposed final judgment, the trial judge asked the husband if he had prepared a proposed final judgment. When the husband responded that he had not prepared one but asked if he could submit one later that day, the trial judge responded:

That’s okay. There are attorneys that will help me with it if I need them. There will be a decision ready, copies can be picked up from Judge Colton’s judicial assistant, any time after 3:00 o’clock this afternoon.

Thus, the trial judge actively discouraged the husband from filing a proposed final judgment. However, the trial judge accepted and used the proposed final judgment submitted .by the wife’s attorney.

The First District in, Cole Taylor Bank v. Shannon, 772 So.2d 546 (Fla. 1st DCA 2000), addressed a situation where the trial judge requested a proposed final judgment from only one party. In Shannon, the trial judge requested that only Shannon submit a proposed final judgment and subsequently adopted that judgment. Id. at 549. The First District approved the trial judge’s actions, stating that reversal would be required only if the judgment (or a finding in the judgment) were inconsistent with an earlier pronouncement of the trial judge, if there were an appearance of impropriety, or if the record established that the final judgment did not reflect the trial judge’s independent decision. Id. at 551. The First District went on to comment that Cole Taylor Bank had ample opportunity to object to Shannon’s proposed final judgment or to submit its own proposed final judgment. Id. Unlike Cole Taylor Bank, the husband in this case was afforded no such opportunity.

In Hanson v. Hanson, 678 So.2d 522 (Fla. 5th DCA 1996), the Fifth District also addressed a situation where the trial judge received a proposed final judgment from only one party in a marital dissolution case. The Fifth District reversed the final judgment because the trial judge met with one party’s counsel after closing arguments, never invited or notified the other party of the meeting, and spent an hour discussing the final judgment that counsel was to prepare. Id. at 528. In response to the trial judge’s actions, the Fifth District quoted this Court’s opinion in Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990):

Here, the appearance of irregularity so permeates these proceedings as to justify suspicion of unfairness. This, we believe, is as much a violation of due process as actual bias would be. Accordingly, we must vacate the sentence and remand for another sentencing hearing in compliance with this opinion.

678 So.2d at 524.

While there is nothing in the record of this case to suggest that the trial judge met ex parte with the wife’s counsel prior to submission of the proposed final judgment, the trial judge did not permit the husband an opportunity to submit his own proposed final judgment or to object to the wife’s proposed final judgment. Furthermore, because the final judgment (twenty-five pages in length with six additional pages of financial exhibits incorporated by reference) was submitted by the wife’s counsel and adopted verbatim without any additions, changes, or deletions so quickly thereafter (i.e., within two hours of its submission) without the trial judge having indicated on the record any findings of fact or conclusions of law, there was an appearance that the trial judge did not independently make factual findings and legal conclusions, i.e., an appearance of impropriety. In Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2003), the Fourth District has since acknowledged that such an appearance of impropriety cannot stand. In Ross, the Fourth District offered the following admonitions: (1) a trial judge should never request a proposed final judgment from only one party without making certain that the other side has an opportunity to comment or object; and (2) the practice of a trial judge adopting verbatim a proposed final judgment without making any modifications, additions or deletions, and without making any comments on the record prior to entry of the final judgment is frowned upon. Ross, 867 So.2d at 571-72.

We understand and appreciate the fact that a trial judge in these often complex and multi-issue dissolution cases can benefit from proposed findings and conclusions prepared by the parties. Such proposals can serve as a starting point and reminder of the facts and issues that should be considered and weighed by the judge in his or her own evaluation. However, such submissions cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge. When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.

Therefore, we agree with the conclusions reached by the First District in Shannon, the Fifth District in Hanson, and the Fourth District in Ross. While a trial judge may request a proposed final judgment from either or both parties, the opposing party must be given an opportunity to comment or object prior to entry of an order by the court. Moreover, the better practice would be for the trial judge to make some pronouncements on the record of his or her findings and conclusions in order to give guidance for preparation of the proposed final judgment.

CONCLUSION

Based on the foregoing, we conclude that the trial judge erred in this case by entering as the final judgment the proposed final judgment prepared by the wife’s attorney without giving the husband an opportunity to comment or object. We, therefore, quash the Fourth District’s decision in this case and remand to the trial court for a new trial. Pending retrial, the trial court shall hold a hearing as soon as practicable regarding temporary custody and all temporary matters concerning the child. We approve the decision of the Fifth District in Rykiel to the extent that it is consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion.

LEWIS, J., concurs specially with an opinion.

. Esig Perlow graduated from the University of Chicago’s law school, subsequently passed the California bar, and was later disbarred. He neither took the Florida bar examination nor worked in the legal profession here.

. Adam was eight years old at the time.

. Instead, the Fourth District viewed it as a mere suspension of the husband's parental rights. Perlow, 816 So.2d at 215.

. The record does not reflect that the trial judge asked either party to prepare a proposed final judgment. Nonetheless, counsel for the wife presented such a proposal just before closing arguments. At the conclusion of closing arguments, the trial judge informed the husband that he need not submit a proposed final judgment, indicated that a final order would be ready in two hours, and entered the proposed final judgment submitted on behalf of the wife without any additions, deletions, or modifications.

. Indeed, the final judgment entered in this case, which denies the husband all contact with his child until age fourteen and then only on petition to the court, is so one-sided in its findings and conclusions that it could only reflect the views of the party that drafted and proposed it.

. Because there will be a new trial in this case, we decline to address the other two issues that the husband has raised.