# Third District Court of Appeal

State of Florida

Opinion filed August 12, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D12-2514

Lower Tribunal No. 98-3518

________________



### Carlos Alberto Garcia

, Appellant,

vs.



### Marela Valladares Garcia

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces

, Judge.

Carlos Alberto Garcia, in proper person

.

Douglas Isenberg

, for appellee.

Before SHEPHERD, LAGOA and FERNANDEZ, JJ.

FERNANDEZ, J.

Carlos Garcia, the former husband, appeals the trial court’s August 28, 2012,

order ratifying the general magistrate’s report and denying the former husband’sexceptions to the report. We reverse because the general magistrate’s report was

based on an incomplete record that did not contain the testimony of Carlos Garcia

and of his accountant.

On March 24, 2010, the former husband petitioned for a downward

modification of child support previously ordered in the August 7, 2007, final

judgment adopting and ratifying the parties’ mediated settlement agreement. The

settlement agreement, in addition to child support, created a special checking

account that provided for the children’s out of pocket expenses and was intended to

be part of the former husband’s total contribution toward the children’s out of

pocket expenses. In response, the former wife, Marela Garcia, filed a motion for

contempt and to compel compliance with the mediated settlement agreement and

final judgment.

The general magistrate held evidentiary hearings on November 17, 2010 and

March 30, 2011. The November 17, 2010 hearing lasted three hours and included

the testimony of the former husband and of his accountant. Subsequent to these

hearings, for reasons that are not relevant to this opinion, the general magistrate reopened the evidence to receive additional information.

On April 10, 2012, the general magistrate issued a report finding that the

former husband’s financial affidavit contained a material and fraudulent omission

by not disclosing the existence of a new secondary company. The general

2magistrate also found that the former husband failed to meet his burden of

presenting competent substantial evidence of a substantial change in circumstances

to warrant a modification of child support and consequently denied his petition.

The former husband filed exceptions to the general magistrate’s report

raising several grounds for rejection of the report and a motion requesting the

transcript of proceedings before the general magistrate. It was then discovered that

the November 17, 2010, hearing was inaudible and could not be transcribed. The

former husband amended his exceptions to the general magistrate’s report to reflect

this failure to keep an adequate record of the November 17, 2010, evidentiary

hearing and requested a new trial pursuant to Florida Rule of Civil Procedure

1.530. Subsequently, on August 28, 2012, the trial court adopted the general

magistrate’s report and denied the former husband’s exceptions to the report.

Florida Rule of Civil Procedure 1.490(f) provides that, in a hearing before a

magistrate, “[t]he evidence shall be taken in writing by the magistrate or by some

other person under the magistrate’s authority in the magistrate’s presence and shall

be filed with the magistrate’s report.” Fla. R. Civ. P. 1.490(f). Thus, a magistrate

is responsible for creating an accurate and complete record of the proceedings. De

Clements v. De Clements

, 662 So. 2d 1276, 1283-84 (Fla. 3d DCA 1995).

A trial court may not adopt or ratify a magistrate’s report if the magistrate

fails to file a complete record of the evidence with the report, regardless of

3whether exceptions have been filed to that report. Id. ; Petrakis v. Petrakis

, 597 So.

2d 856 (Fla. 3d DCA 1992). Likewise, if a trial court has not received a complete

record at the time the magistrate filed his or her report, “all subsequent actions

based on such reports and recommendations, upon attack, are subject to being

deemed erroneous and based upon possible improper recommendations.” Lopez v.

Lopez

, 622 So. 2d 153 (Fla. 3d DCA 1993).

It is undisputed that the testimony of the former husband and of his

accountant from the November 17, 2010 hearing was wholly absent from the

record provided to the trial judge. We thus conclude that the trial court did not

have a full written record to review and abused its discretion when it ratified the

general magistrate’s report. We therefore reverse the trial court’s ratification of the

general magistrate’s report and the denial of Carlos Garcia’s exceptions to the

report and remand with instructions to the trial court to conduct further

proceedings, including a new hearing, as may be necessary. In light of our

decision, we decline to address the other issues raised on appeal.

Reversed and remanded for further proceedings consistent with this opinion.

4