Not only did Ms. Mutschler fail to make this argument in the trial court, but we have no reliable copy of the private mediation agreement in the official record or in evidence. See N.L.E. v. Dep't of Children Family Servs., 970 So.2d 486, 489 (Fla. 2d DCA 2007) (stating that generally appellate courts will not consider a new issue on appeal); Sheldon v. Tiernan, 147 So.2d 593, 593 (Fla. 2d DCA 1962) ("Appellate review is . . . confined to the record on appeal."). The copy attached to the January 2010 motion does not contain the type of express language required to obtain a waiver of the right to modify alimony.
An appellate court may not consider matters outside the record. See Gilman v. Dozier, 388 So.2d 294 (Fla. 1st DCA 1980); Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962). The record at the trial level is quite sparse and lacks any specificity regarding the basis for the denial of the motion.
Thus, the nursery here asks us to consider evidence from the Georgia case and to consider that court's subsequent opinion, which became the focus of the nursery's attack, although that case was not before the trial judge when he decided to grant the nursery's motion. This we cannot do. As observed in Thornber v. City of Ft. Walton Beach, 534 So.2d 754 (Fla. 1st DCA 1988), appellate review is confined to the record on appeal. Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962);Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962). An appeal is not an evidentiary proceeding. Altchiler v. State, Dept. Of Prof. Reg., 442 So.2d 349, 350 (Fla. 1st DCA 1983). Furthermore, the judgment that was finally entered was subsequently vacated.
In response to the show cause order, counsel for appellant continued to argue that the documents he seeks to have this court consider are properly contained in the record. It is axiomatic that appellate review is confined to the record on appeal. Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962); Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962). Rule 9.200(a)(1) of the Florida Rules of Appellate Procedure states that the "record shall consist of the original documents, exhibits, and transcripts of proceedings, if any, filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices, depositions, other discovery and physical evidence." The committee notes to the rule make clear that Rule 9.
When a party includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same. See, e.g., Gilman v. Dozier, 388 So.2d 294 (Fla. 1st DCA 1980); Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2nd DCA 1962). That an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court. See Mann v. State Road Dept., 223 So.2d 383 (Fla. 1st DCA 1969).
Therefore, appellee argues that she is still entitled to attorneys' fees in that the trial court never reached the merits of the complaint. Appellee's contention is, however, unsubstantiated by and goes beyond the record-on-appeal and therefore, we cannot properly consider it. Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962). Notwithstanding the above, even assuming the merits of the complaint had not been reached, we are of the opinion that pursuant to Sections 627.736(4)(d) 4.b and 627.736(4)(d) 3, Florida Statutes (1975), FIGA, as appellee's husband's insurer had the primary responsibility to pay the PIP claim.