CRYSTAL SUE NICOLE 

LOWERY, MOTHER,

Appellant,

v.

NICHOLAS J. CARNEY, 

FATHER,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-3357

_____________________________/

Opinion filed June 3, 2016.

An appeal from the Circuit Court for Okaloosa County.

Terrance R. Ketchel, Judge.

Clark H. Henderson of Campbell & Henderson, PLLC, Shalimar, for Appellant.

Anna F. Foster of Pennington, P.A., Tallahassee, for Appellee.

PER CURIAM.

Appellant, the mother, seeks review of the May 5, 2015, order transferring 

custody of the parties’ minor child to Appellee, the father, as well as the order 

denying her motion to set aside the May 5 order pursuant to Florida Family Law 
2

Rule of Procedure 12.540. Among other things, the mother argues that her due 

process rights were violated because she was not given notice of the hearing that 

resulted in the May 5 order. We affirm that issue for the reasons that follow, and 

we affirm the other issues raised by the mother without discussion.

The May 5 order resulted from an April 20, 2015, hearing at which the then

pro se mother failed to appear.1

 The order found that the mother was given proper 

notice of the hearing based in part on the fact that the notice was served by mail on 

the mother at “144 Pinecone Court, Pembroke, NC . . . which was an address 

Mother provided at the January 16, 2015 hearing” (emphasis added). The trial 

court’s finding that the mother provided this address was supported by the 

transcript of the April 20 hearing, which reflects that the father’s attorney 

represented to the court that:

in anticipation for this hearing, I served the last known 

address in North Carolina, 147 Pine Cone Court.[2]

 And 

 

1

 The mother was represented by an attorney from June 2014 to some point in 

December 2014 or early January 2015, and although the record does not contain an 

order authorizing the mother’s attorney to withdraw, the mother has not argued –

below or on appeal – that notice of the April 20 hearing should have been served 

on the attorney.

2

 This was the address provided for service of court papers on the mother in the 

Notice of Limited Appearance filed by the mother’s attorney on January 7, 2015, 

which stated that the attorney was representing the mother solely on the issue of 

attorney’s fees. Interestingly, although the record contains several orders predating 

this Notice that were sent to the 147 Pinecone Court address and were returned as 

undeliverable, the May 5 order reflects (in the “copies to” section) that it was sent 

to that address and there is no indication in the record that it was returned as 

undeliverable.
3

during [the January 16] hearing she actually gave us 

another address, I believe it was 144 Pine Cone Court, 

which was a new address. I attempted service on both of 

those. Both of those came back returned, recipient not 

there.

(emphasis added).

As she did below, the mother argues on appeal that she was not properly 

served with notice of the April 20 hearing because the address she gave the court at 

the January 16 hearing was 149 Pinecone Court, not 144 Pinecone Court. In 

support of this argument, the mother relies solely on the “copies to” portion of the 

order resulting from the January 16 hearing, which reflects that the order was sent 

to the mother at 149 Pinecone Court. The father responds that the record supports 

the trial court’s finding that the mother’s failure to appear at the April 20 hearing 

was not the result of inadequate notice.

Our resolution of the due process argument raised by the mother boils down 

to whether, as a matter of fact, the 144 Pinecone Court address was the address 

provided by the mother at the January 16 hearing.3 The trial court found that it 

 

3

 Although the father also attempted to serve notice of the April 20 hearing on the 

mother by mail and process server at her last known Florida address, that would 

not have provided the mother adequate notice of the hearing because the father 

testified at the April 20 hearing that it was his understanding that the mother was 

living in North Carolina and the record contained the 147 Pinecone Court address 

in North Carolina that mother’s attorney provided for service of court papers on the 

mother. Additionally, the fact that the father mailed notice of the April 20 hearing 

to the mother’s North Carolina address provided by her attorney was not 

necessarily adequate notice of the hearing under the circumstances of this case 
4

was, and that finding comes to this court with a presumption of correctness. See

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 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.”). Although 

the “copies to” portion of the order resulting from the January 16 hearing arguably 

supports the inference that the address provided by the mother at that hearing was 

149 (not 144) Pinecone Court, without a transcript of that hearing,4 we cannot 

know for sure. It was the mother’s burden to demonstrate reversible error in the 

trial court’s finding that the address she provided at the January 16 hearing was 

144 (not 149) Pinecone Court, and without a transcript of that hearing, the mother 

is unable to meet that burden. Id. (“The trial court should have been affirmed 

because the record brought forward by the appellant is inadequate to demonstrate 

reversible error.”); see also J P Morgan Chase Bank v. Combee, 883 So. 2d 330, 

331 (Fla. 1st DCA 2004) (“The burden is on the appellant to demonstrate 

reversible error and present an adequate record for review.”).

 

because it is undisputed that the mother provided a different address at the January 

16 hearing (either 144 or 149 Pinecone Court), and the record contained court 

orders sent to the 147 Pinecone Court address that were returned as undeliverable.

4

 We directed the mother to supplement the record with a transcript of the January 

16 hearing, but she filed a response stating that the hearing was not transcribed. 

See Fla. R. App. P. 9.200(f)(2) (“If the court finds the record is incomplete, it shall 

direct a party to supply the omitted parts of the record. No proceeding shall be 

determined, because of an incomplete record, until an opportunity to supplement 

the record has been given.”).
5

Accordingly, because the mother has not presented an adequate record to 

demonstrate reversible error in the May 5 order, we affirm that order as well as the 

order denying the mother’s motion to set aside the May 5 order.

AFFIRMED.

WOLF, WETHERELL, and KELSEY, JJ., CONCUR.