Read a month of Florida family law opinions in order and a pattern emerges. Across the district courts this August, a striking number of appeals were resolved without the appellate court ever reaching the question the appellant came to argue. The orders were affirmed, or the appeals dismissed, because of what happened, or did not happen, in the trial court and in the briefs.
Each decision applies a rule that was already settled, to a party who did not account for it in time.
Findings the trial court omitted must be raised below first
In Capellan v. University of Miami, No. 3D25-0698 (Fla. 3d DCA Aug. 5, 2026), the appellant’s complaint was dismissed with prejudice on two grounds: her failure to file an amended complaint by a court ordered deadline, which the trial court found reflected “repeated, willful and deliberate” disregard of its orders, and the untimely amended complaint’s continued failure to state a disparate treatment claim under the Florida Civil Rights Act. On appeal she argued that the trial court erred by omitting the findings required under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), before dismissing a case as a sanction.
The Third District never reached that argument, holding that it failed “to even get out of the starting gate based on well-established preservation requirements.” Three defects, each sufficient on its own: she did not provide a transcript of the relevant hearing, she did not object below to the issues she raised on appeal, and a challenge to the trial court’s failure to make required findings must be raised in a motion for rehearing under Florida Rule of Civil Procedure 1.530 before it is preserved. See Bank of New York Mellon v. Sandhill, 202 So. 3d 944, 945 (Fla. 5th DCA 2016). Rule 1.530(a) was amended to say so expressly.
There is a mirror rule in Florida Family Law Rules of Procedure, Rule 12.530, with the same burden and hurdles. This one is easy to miss precisely because the error is the court’s. The instinct after an order lands without the findings the statute or case law requires is to appeal it. The rule requires the intermediate step, and the window for taking it is short. In family cases, where written findings are mandated across a wide range of determinations, the exposure is broad.
The burden belongs to the appellant, and so does the record
In Cappiello v. Martins, No. 3D25-1658 (Fla. 3d DCA Aug. 12, 2026), a mother appealed a judgment awarding the father majority timesharing and sole parental responsibility, reducing child support, and denying her request to relocate to Naples. The Third District held that she had not demonstrated reversible error and affirmed, resting on authority that has been settled since 1979: “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Where an appellant fails to carry that burden on the record and the applicable law, “the appellate court has no alternative but to enter an order of affirmance.” Gordon v. Burke, 429 So. 2d 36, 37 (Fla. 2d DCA 1983).
The court’s citation to Florida Rule of Appellate Procedure 9.200(b)(5) points at the practical remedy. Where no transcript exists, a statement of the evidence and proceedings may be prepared, but it must be filed with the lower tribunal for settlement and approval. That is a step taken after the hearing and before the appeal is briefed, and it is available only to a party who recognizes early that the record is thin.
E.G. v. L.D., Nos. 6D2025-2238 & 6D2025-2584 (consolidated) (Fla. 6th DCA Aug. 14, 2026), makes the same point from the other direction, in a citation opinion resting on Polyglycoat Corp. v. Hirsch Distributors, Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983): “When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.” The principle applies to pro se (self-represented litigant) briefs as well. Walker v. Estate of Yee, 376 So. 3d 758 (Fla. 4th DCA 2024).
The notice of appeal draws a line through the case
Two decisions the same month reached the same conclusion about the same problem.
In Knight v. Kepp, No. 5D2025-1792 (Fla. 5th DCA Aug. 7, 2026), the appellant moved to disqualify the trial judge after her petition for a stalking injunction was denied, but filed her notice of appeal before the court ruled on the motion. The Fifth District affirmed the denial of the petition and held it could not consider the disqualification order, which postdated the notice.
In Johnson v. Johnson, No. 2D2025-3282 (Fla. 2d DCA Aug. 12, 2026), the Second District affirmed in part and dismissed in part on the same basis, citing Lauderdale Marine Center, Ltd. v. MYD Marine Distributors, Inc., 31 So. 3d 256, 257 (Fla. 4th DCA 2010), and Florida Rule of Appellate Procedure 9.110(h), which limits appellate review to “any ruling or matter occurring before filing of the notice.” The court added a second ground drawn from Royal Caribbean Cruise Lines A/S v. Caproli, 534 So. 2d 913, 913 (Fla. 3d DCA 1988): a party who agreed to the judgment is not entitled to review of it.
The sequencing question these cases raise comes up constantly in family practice, where post-judgment motions and appeals often move in parallel. Filing the notice is not a neutral act with respect to some things still pending below.
Objections are waived by acquiescence
In Nicholas v. Hagberg, No. 4D2026-0863 (Fla. 4th DCA Aug. 12, 2026), a pro se petitioner sought certiorari review of a psychological evaluation and, in the same filing, challenged supervised visitation. The Fourth District denied the petition as to the evaluation “because the issue was waived,” citing Klein v. Estate of Klein, 295 So. 3d 793, 803 (Fla. 4th DCA 2020), for waiver “by acquiesce and failure to timely object.”
The court did excuse one procedural misstep along the way. The supervised visitation challenge belonged in an appeal from a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) rather than in certiorari. That choice was not fatal: “If a party seeks an improper remedy, the cause must be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). The court treated that portion as a non-final appeal and affirmed. The petitioner took nothing from the case, but the contrast is instructive: choosing the wrong vehicle was survivable. Failing to object was not.
The counterexample
The exception to the pattern of decisions this month is worth noting because it turned on findings rather than on waiver.
In Barton v. Barton, No. 1D2025-1821 (Fla. 1st DCA Aug. 12, 2026), a father appearing pro se appealed the denial of two ex parte emergency custody motions, both premised on allegations that the mother’s boyfriend had committed acts of violence “against or in the presence of the minor child.” At the hearing, the father’s repeated attempts to question the mother about the boyfriend’s conduct drew objections that the topic exceeded the scope of the motion, which the trial court sustained. The resulting orders concluded only that there was not competent evidence that the incidents had occurred in the manner described in the motion.
The First District vacated both orders on two grounds.
The evidentiary ruling was error because section 61.13(3), Florida Statutes, requires a court to evaluate “all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family,” domestic violence evidence included. Where the questions were arguably outside the scope only because the court heard the second motion before the first, excluding the evidence on that basis ran afoul of the statute. See Doran v. Doran, 49 So. 3d 1290 (Fla. 1st DCA 2010).
The findings ruling rests on a different subsection. Paragraph (3)(m) of section 61.13, added in 2009, requires trial courts to “specifically acknowledge in writing” evidence of domestic violence admitted in a child custody determination, and by its express terms it applies to any action to establish or modify a parenting plan whether the court grants relief or denies it. See J.N.S. v. A.M.A., 194 So. 3d 559, 561 (Fla. 5th DCA 2016). The separate written-findings requirement the Legislature added in 2023, found in section 61.13(2)(c)1., is narrower: it governs the creation or modification of a time-sharing schedule and, unlike the 2009 provision, does not apply where the court merely denies a petition to modify. See Squires v. Squires, 415 So. 3d 263, 265 (Fla. 5th DCA 2025). On a denial, in other words, it is paragraph (3)(m) that carries the obligation.
A note for trial attorneys
The throughline is that appellate parameters are largely determined before anyone files a brief. Whether a transcript exists. Whether a motion for rehearing was filed and what it asked for. Whether an objection was made when the evidence came in. Whether there was a proffer of testimony or other evidence. Whether an objection was renewed. Whether the notice of appeal went out before or after the order a party now wants reviewed.
This is why it is prudent to bring appellate counsel into a case before the judgment, because the preservation decisions in a contested family case are numerous, they arrive at inconvenient moments, and they are made under the pressure of a live hearing. A second set of eyes trained on the appellate consequences is worth having while there is still something to be done about them.
The Law Offices of Dayna Maeder provides appellate counsel and litigation support to Florida trial attorneys, including consultation on preservation of error during trial proceedings, and handles appeals in the district courts of appeal. Contact Law Offices of Dayna Maeder to discuss your Florida appellate needs.
Opinions discussed here are not final until disposition of any timely filed motion for rehearing. This post is general information about published decisions and is not legal advice about any particular case.