IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Case No. 5D21-2372

LT Case No. 2018-DR-000147

JADE EVA MERRIMAN, 

Appellant, 

v.

BRAIAN URIEL ADLER, 

Appellee. 

________________________________/

Opinion filed May 13, 2022

Appeal from the Circuit Court

for Flagler County, 

Christopher France, Judge.

Michael L. Duncan, of

Duncan Trial & Mediation,

Jacksonville, for Appellant. 

Stacy Geiger and Andrea 

Burns, of Geiger Law, PLLC, 

Palm Coast, for Appellee.

WOZNIAK, J.

Jade Eva Merriman (“Former Wife”) appeals the Amended Order on 

Former Husband’s Motion for Civil Contempt and to Enforce Order on 

Dissolution of Marriage in which the trial court resolved a number of issues 
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and awarded Braian Uriel Adler (“Former Husband”) $1,500 in attorney’s 

fees. Former Husband’s motion stemmed from Former Wife’s failure to 

refinance the marital home within the twenty-four months required by the 

parties’ marital settlement agreement and to make the payments on, 

refinance, or sell the Honda Pilot, as agreed, resulting in its repossession.

Of the arguments Former Wife raises on appeal, we find merit in only her 

contention that the trial court erred in awarding attorney’s fees to Former 

Husband without the requisite findings of fact to support the amount of the 

award. 

While this Court’s review of the propriety of the trial court’s finding of 

entitlement to fees is precluded by the lack of a transcript of the fee hearing,

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the absence of findings in the order to support the amount of fees awarded 

is error on the face of the order that may be addressed on appeal, even 

absent a transcript. See Duke v. Duke, 211 So. 3d 1078 (Fla. 5th DCA 2017)

(“The trial court’s failure to set forth specific findings about the hourly rate 

and number of hours is error apparent from the face of the final judgment.” 

1 See, e.g., Dood v. Dood, 268 So. 3d 254 (Fla. 2d DCA 2019) (holding 

absence of transcript precluded appellate review of sufficiency of evidence 

supporting entitlement to fees); Frezza v. Frezza, 216 So. 3d 758, 760 (Fla. 

2d DCA 2017) (observing that specific findings of fact to support fee award 

can be made either in written final judgment or at hearing and thus absence 

of transcript prevented appellate court from determining trial court had erred 

in its entitlement determination). 
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(citation omitted)); Macarty v. Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA 

2010) (“[A]n award of attorney’s fees without adequate findings justifying the 

amount of the award is reversible even where the appellant has provided an 

inadequate record of the trial court proceedings.” (quoting Esaw v. Esaw, 

965 So. 2d 1261, 1265 (Fla. 2d DCA 2007))); Hoffay v. Hoffay, 555 So. 2d 

1309, 1310 (Fla. 1st DCA 1990) (“The presence of competent substantial 

evidence to support the award does not obviate the need for such specific 

findings.”). Because the order fails to include factual findings supporting the 

amount of attorney’s fees awarded, we reverse the award of attorney’s fees 

and remand to the trial court to make and set forth specific findings regarding 

the reasonable hourly rate and the number of hours reasonably expended in 

counsel’s representation of Former Husband. See Gilliland v. Gilliland, 266 

So. 3d 866, 869 (Fla. 5th DCA 2019) (citations omitted). The remainder of 

the order is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

EDWARDS, J., concurs. 

SASSO, J., concurs and concurs specially, with opinion.
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Case No. 21-2372

LT Case No. 2018-DR-000147

SASSO, J., specially concurring.

I concur in this court’s opinion reversing because I cannot meaningfully 

distinguish this case from Duke v. Duke, 211 So. 3d 1078 (Fla. 5th DCA 

2017). However, writing on a clean slate, I would conclude that the trial 

court’s failure to include written findings in its order supporting the amount of 

fees is not reversible error because Appellant has failed to provide a 

transcript of the hearing or an acceptable substitute.

Typically, we would conduct a harmless error analysis in determining 

whether the failure to make written findings is reversible error. See, e.g., 

Klette v. Klette, 785 So. 2d 562, 563 (Fla. 1st DCA 2001) (applying harmless 

error to trial court’s failure to make findings in support of alimony award); 

Vaughn v. Vaughn, 714 So. 2d 632, 633–34 (Fla. 1st DCA 1998) (applying 

a harmless error analysis to trial court’s failure to make findings in support of 

unequal division of marital assets). Here, though, we are unable to do so due 

to the lack of transcript, so we would affirm. See, e.g., Nunes v. Nunes, 112 

So. 3d 696, 700–01 (Fla. 4th DCA 2013) (observing that appellate courts will 

not assume trial court error due to the lack of a transcript; the trial court may 

have orally pronounced its findings); Lewis v. Lewis, 807 So. 2d 777, 778

(Fla. 1st DCA 2002) (court was precluded from applying harmless error 
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analysis to award of permanent periodic alimony, where neither transcript of 

final hearing nor statement of proceedings was provided to the court and 

there were no inconsistencies in final judgment).

But this court’s Duke opinion requires a different result.2 In Duke, our 

court characterized the failure to make written findings as to attorneys’ fees 

“error apparent from the face of the final judgment” that requires reversal 

even when an appellant provided an inadequate record of trial court 

proceedings. Duke, 211 So. 3d at 1082. In Harris v. McKinney, 20 So. 3d 

400 (Fla. 2d DCA 2009), Judge Davis specially concurred, explaining that 

the rule our court perpetuated in Duke sprouted with the idea that the failure 

to make express written findings in an attorneys’ fee award is fundamental 

error. As Judge Davis stated:

The seminal case on this issue is Giltex Corp. v. Diehl, 583 So.

2d 734 (Fla. 1st DCA 1991). In that case, the trial court made an 

award of attorney’s fees pursuant to Rowe, 472 So. 2d 1145. 

However, the trial court failed to include in its order specific 

findings as to the reasonable number of hours expended and the 

reasonableness of the hourly rate charged. Additionally, the 

appellant failed to provide the appellate court with a transcript of 

the trial court proceedings. The First District reversed the fee 

2 Weiand v. State, 732 So. 2d 1044, 1047 (Fla. 1999) (stating that a 

district court of appeal does not have the authority to overrule a decision of 

the Florida Supreme Court); In re Rule 9.331, Determination of Causes by a 

District Court of Appeal En Banc, Fla. Rules of Appellate Procedure, 416 So. 

2d 1127, 1128 (Fla. 1982) (noting a three-judge panel of a district court 

should not overrule or recede from a prior panel’s ruling on an identical point 

of the law). 
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award, concluding that “[w]hile the lack of a transcript or 

stipulated statement might otherwise require affirmance, this rule 

is not applicable in this case because the trial court's order is 

fundamentally erroneous on its face for failure to make the 

express findings required by Rowe.” 583 So. 2d at 735.

As support for this conclusion, the First District cited Southeast

Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292, 293 (Fla. 

2d DCA 1989), in which this court quoted from In re Guardianship

of Read, 555 So. 2d 869, 871 (Fla. 2d DCA 1989), as follows: 

“‘Where there is no record of the testimony of witnesses or of 

evidentiary rulings and where a statement of the record has not 

been prepared, a judgment which is not fundamentally erroneous 

on its face must be affirmed.’” However, neither Guardianship of

Read nor Southeast Bank defines the term “fundamentally 

erroneous on its face.” The Giltex court nevertheless concludedwithout explanation or citation to authority-that the order under 

review there was “fundamentally erroneous on its face for failure 

to make the express findings required by Rowe.” Giltex Corp., 

583 So. 2d at 735.

Harris, 20 So. 3d at 406 (Davis, J., concurring). Judge Davis questioned 

whether the evolution of this distinction was the intended result of Rowe, 

especially where Rowe requires the trial court to make findings but does not 

specify those findings must be in writing. Id.

In my view, there is nothing about the language in Rowe that requires 

the rule our court adopted in Duke. And other than Duke, Appellant has 

presented no other reason to suggest the omission of express written 

findings in the context of attorneys’ fees constitutes fundamental error. So, 

in the absence of Duke, I would conclude the error here is subject to the 

harmless error test—a test we cannot conduct in the absence of a transcript. 
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As a result, I would affirm. See Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 

2d DCA 2007) (“The most salient impediment to meaningful review of the 

trial court’s decision is not the absence of findings, but the absence of a 

transcript.”).