Christopher Fernandez v. Christina Maria Gonzalez

• Court: District Court of Appeal of Florida
• Decided: March 5, 2025
• Docket: 3D2024-1153
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 5, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1153 Lower Tribunal No. 21-8264-FC-04 ________________

Christopher Fernandez, Appellant,

vs.

Christina Maria Gonzalez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marlene Fernandez-Karavetsos, Judge.

Christopher P. Fernandez, in proper person.

GrayRobinson, P.A., and Karim Batista and Sydney Feldman D'Angelo, for appellee.

Before EMAS, LINDSEY and BOKOR, JJ.

EMAS, J. Christopher Fernandez (the Father), appeals the trial court’s final

judgment granting modification of the parties’ timesharing agreement,

following a bench trial. Modification was sought based on a substantial

change in circumstances, which, as alleged by the Mother, included

“instability of the Father,” his “history of violent outbursts,” and his “failure to

carry out the needs of the minor child,” e.g., the Father’s repeated failure to

assist the child with homework, and refusal to take the child to school-

ordered summer school.

On appeal, the Father contends he “was not afforded a meaningful

opportunity to be heard”; “the substantial change test was not met”; and that

the order “was based on a number of serious factual inaccuracies and

possible perjury by the [Mother].”1

Given the nature of the issues raised on appeal, and the failure of the

Father to provide a transcript of the hearing or statement of evidence or

1 The Father also requests this court “clarify the meaning of paragraph 1.b of the order in the Final Judgment” pertaining to summer school. We decline to do so, however, as this court does not issue advisory opinions, and the Father never sought clarification from the trial court regarding this aspect of the final judgment. Best Am. Diagnostic Ctr. v. United Auto. Ins. Co., 338 So. 3d 965 n.1 (Fla. 3d DCA 2022) (“Florida's appellate courts are not authorized to issue advisory opinions.”) (quotation omitted); see also Fla. Fam. L. R. P. 12.530(a) (“To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule.”)

2 proceedings 2 upon which the final judgment was based, we must affirm. See

Fla. R. App. P. 9.200(e) (“Duties of Appellant or Petitioner. The burden to

ensure that the record is prepared and transmitted in accordance with these

rules will be on the petitioner or the appellant.”); Applegate v. Barnett Bank

of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979) (“When there are issues

of fact the appellant necessarily asks the reviewing court to draw conclusions

about the evidence. Without a record of the trial proceedings, the appellate

court can not properly resolve the underlying factual issues so as to conclude

that the trial court's judgment is not supported by the evidence or by an

alternative theory. Without knowing the [whole] factual context, neither can

an appellate court reasonably conclude that the trial judge so misconceived

the law as to require reversal. The trial court should [be] . . . affirmed because

the record brought forward by the appellant is inadequate to demonstrate

reversible error.”); see also Gaspard v. Innocent, 389 So. 3d 638 (Fla. 3d

DCA 2023) (affirmance required where no transcript or proper substitute and

2 See Fla. R. App. P. 9.200(b)(5) (“Statement of Evidence or Proceedings. If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including the party's recollection. The statement must be served on all other parties, who may serve objections or proposed amendments to it within 15 days of service. Thereafter, the statement and any objections or proposed amendments must be filed with the lower tribunal for settlement and approval. As settled and approved, the statement must be included by the clerk of the lower tribunal in the record.”).

3 no fundamental error on the face of the order appealed); Mijares v.

Echeverria, 365 So. 3d 426 (Fla. 3d DCA 2023) (reiterating that appellant

bears burden of presenting a record that overcomes the presumption of

correctness afforded to the trial court's findings and “[w]here there is no

record of the testimony of witnesses or evidentiary rulings, and where a

statement of the record has not been prepared . . . a judgment which is not

fundamentally erroneous on its face must be affirmed.”) (quotation omitted);

GMAC Mortg., LLC v. Palenzuela, 208 So. 3d 181, 183 (Fla. 3d DCA 2016)

(“As we have often said, ‘where there is no record of the testimony of

witnesses or of evidentiary rulings, and where a statement of the record has

not been prepared pursuant to Florida Rule of Appellate Procedure

9.200(a)(3) or (b)[5], a judgment which is not fundamentally erroneous on its

face must be affirmed.’ ”) (quoting Zarate v. Deutsche Bank Nat'l Tr. Co., 81

So. 3d 556, 558 (Fla. 3d DCA 2012)); Emaminejad v. Ocwen Loan Servicing,

LLC, 156 So. 3d 534, 535-36 (Fla. 3d DCA 2015) (“Under Florida law, ‘when

reviewing a judgment rendered after a nonjury trial, the trial court's findings

of fact come to the appellate court with a presumption of correctness and will

not be disturbed unless they are clearly erroneous. . . . Absent a transcript,

it is all but impossible for this Court to review what was presented to the trial

court as evidence and what arguments were made . . . . All of the challenges

4 made by the [appellant] basically rest on this Court's review of the evidence

and arguments made at trial, neither of which can be done in the absence of

a transcript.”) (internal citations omitted).

Affirmed.