Lackey v. Lackey

Full title: JOAN M. LACKEY, APPELLANT, v. STEPHEN A. LACKEY, APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Jun 1, 1994

637 So. 2d 87 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-3808.

June 1, 1994.

Appeal of a non-final order from the Circuit Court for Broward County; C. Lavon Ward, Judge.

Karen L. Trafford of Karen L. Trafford, P.A., Fort Lauderdale, for appellant.

No appearance for appellee.

PER CURIAM.

AFFIRMED.

KLEIN, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

POLEN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge, concurring specially.

With respect to the partial dissent, it seems fruitless at this time to make the point made therein. Six months have elapsed since the non-final order with no attempt to stay its effect or expedite the appeal. For all we know the home has been sold or a binding contract executed with a broker and buyer.

One wonders what good it did to appeal any of the issues with no transcript and no stay. The entire dissolution proceeding could and should have been concluded at the trial level in the six months period.

POLEN, Judge, concurring in part and dissenting in part.

I agree with the majority's per curiam affirmance for the most part. This is necessary in light of appellant's failure to provide a transcript of the hearing on temporary relief. There is no record by which appellant can meet her burden of showing the trial court erred, except as noted below. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). But for the absence of a transcript, I might be inclined to reverse that portion of the temporary award which defers any consideration of temporary attorneys fees for the wife (in whole or in part). See Robbie v. Robbie, 591 So.2d 1006 (Fla. 4th DCA 1991). Just on the face of the order it appears that the husband has a superior ability to pay.

Where I disagree with the majority's affirmance is in regard to the provision that the parties list the marital residence for sale with a mutually agreeable broker. This issue was not noticed for the temporary relief hearing. While the husband seeks partition and sale of the marital home upon a final hearing, the wife seeks the exclusive possession of the home. I would hold it error to determine this issue, unnoticed, upon a temporary relief hearing.