         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

JOHN FRANKLIN DUKE,

              Appellant,

 v.                                                       Case No. 5D16-120

HEATHER DUKE,

              Appellee.

________________________________/

Opinion filed February 10, 2017

Appeal from the Circuit Court
for Orange County,
Mike Murphy, Judge.

Moses R. Dewitt, of Dewitt Law Firm, P.A.,
Orlando, for Appellant.

Jonathan R. Simon, of The Orlando Family
Firm, Orlando, for Appellee.


ORFINGER, J.

       John Duke (“Former Husband”) appeals the trial court’s final judgment dissolving

his marriage to Heather Duke (“Former Wife”). We reverse the alimony award, the

attorney’s fees award, the requirement that Former Husband maintain life insurance, and

the parenting plan. We affirm as to the remaining issues without comment.

       The parties were married for twenty-five years before Former Wife filed a petition

for dissolution of marriage. At the time of the petition, they had one minor child. Following
a non-jury trial, the trial court entered a final judgment of dissolution of marriage, which

was subsequently amended after a motion for rehearing. The final judgment, in relevant

part, ordered Former Husband to pay permanent periodic alimony, child support,

attorney’s fees, and a reimbursable lump sum to Former Wife for alternate housing. It

also required Former Husband to maintain life insurance with Former Wife named as the

beneficiary and established a parenting plan.

       Typically, courts review dissolution of marriage final judgments as a whole for an

abuse of discretion. Vitalis v. Vitalis, 799 So. 2d 1127, 1130 (Fla. 5th DCA 2001). This

includes alimony awards, Dennison v. Dennison, 852 So. 2d 422, 424 (Fla. 5th DCA

2003), attorney’s fees awards, Kelly v. Kelly, 925 So. 2d 364, 369 (Fla. 5th DCA 2006),

requirements that a party maintain life insurance, Nelson v. Nelson, 795 So. 2d 977, 986

(Fla. 5th DCA 2001), parenting plans, Schwieterman v. Schwieterman, 114 So. 3d 984,

988 (Fla. 5th DCA 2012), and the distribution of assets, Winder v. Winder, 152 So. 3d

836, 838 (Fla. 1st DCA 2014).

       Here, there is no trial transcript in the record.      “Without a record of the trial

proceedings, the appellate court [cannot] properly resolve the underlying factual issues

so as to conclude that the trial court’s judgment is not supported by the evidence . . . .”

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Thus, for

an appellate court to review the sufficiency of evidence at trial, the appellant must either

include in the record a trial transcript or a proper substitute, such as a stipulated statement

of facts. Id.; Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). That was not

done here.




                                              2
      Here, the final judgment required Former Husband and Former Wife to exercise

shared parenting of the child and “divide uncovered medical expenses in proportion to

the child support guideline percentages.” It also provided that Former Wife would “have

the majority of the responsibility with the parties’ remaining minor child” and devised the

following parenting plan:

      The [Former Husband] shall have liberal contact with the minor child upon
      providing 48 hours’ notice to the [Former Wife] of same. The parties shall
      exercise shared parental responsibility. The [Former Husband] shall have
      no less than 1/3 of the overnights with the minor child. As long as the
      [Former Wife] has not previously indicated to the [Former Husband] that the
      child had a conflict, the [Former Husband] shall be allowed to have two
      weekends per month and the balance of weekdays for a total of at least 10
      calendar nights per month. Both parents are to be involved with assisting
      the child with his school work during the time that the parent is exercising
      time sharing.

      Like the parenting plan in Magdziak, these findings “lack specificity.” See

Magdziak, 185 So. 3d at 1293 n.2. As a result, the trial court’s failure to include a more

specific parenting plan that complies with section 61.13(2)(b) in the final judgment is an

error apparent from the face of the final judgment. See id. at 1293. We reverse and

remand for the trial court to make and include in its final judgment a legally sufficient

parenting plan.

      AFFIRMED in part; REVERSED in part; REMANDED.

COHEN, C.J., and TORPY, J., concur.




                                            8
retirement accounts. Adelberg v. Adelberg, 142 So. 3d 895, 899 (Fla. 4th DCA 2014);

Niederman v. Niederman, 60 So. 3d 544, 547 (Fla. 4th DCA 2011).

       Because the trial court found that Former Wife’s income was $1,560, based solely

on her full-time job, it is apparent from the face of the final judgment that the court failed

to impute interest from the one-half share of the retirement account that was awarded to

her. See Niederman, 60 So. 3d at 547 (holding that, under 26 U.S.C. §72(t) (2015),

income from retirement account can be imputed to spouse for determining alimony when

principal of account will not be invaded); see also Adelberg, 142 So. 3d at 899; Elliott v.

Elliott, 867 So. 2d 1198, 1199-1200 (Fla. 5th DCA 2004). Thus, we reverse the alimony

award and remand for the trial court to consider interest from the retirement account when

calculating Former Wife’s income.1

                                   ATTORNEY’S FEES

       Former Husband correctly argues, and Former Wife concedes, that the trial court

erred in its attorney’s fees award by failing to make the required findings. In addition to

findings of the need for and ability to pay attorney’s fees, “[t]he trial court must also make

specific findings as to the hourly rate, the number of hours reasonably expended, and the

appropriateness of reduction or enhancement factors.” Giovanini v. Giovanini, 89 So. 3d

280, 282 (Fla. 1st DCA 2012) (citing Davis v. Davis, 613 So. 2d 147, 148 (Fla. 1st DCA

1993)). A dissolution order awarding attorney’s fees that “recites simply that the total

amounts ‘are reasonable time spent and hourly rates,’ is insufficient under [Florida




       1 Because alimony needs to be recalculated, we note that it also appears that the
trial court failed to reduce Former Husband’s income by the amount of taxes that he is
required to pay.


                                              4
Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985)].” Winder, 152

So. 3d at 842 (quoting Norman v. Norman, 939 So. 2d 240, 242 (Fla. 1st DCA 2006)).

       Here, the trial court awarded $9,312.75 in attorney’s fees to Former Wife. It found

that Former Wife demonstrated a need for attorney’s fees and that Former Husband had

the ability to contribute to them. It provided in the final judgment that “the [Former Wife]’s

request of $9,312.75 is reasonable given the nature and duration of the instant case. The

hourly rates charged by all timekeepers is reasonable and the amount of hours billed is

reasonable.” 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. See Esaw v.

Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007) (acknowledging that award of attorney’s

fees without adequate findings justifying amount of award is reversible even when

appellant provided inadequate record of trial court proceedings). Consequently, we must

reverse the award of attorney’s fees and remand for the trial court to make specific

findings about the hourly rate, number of hours billed, and any reduction or enhancement

factors. However, we affirm the finding of Former Wife’s need for and Former Husband’s

ability to pay attorney’s fees because, without a trial transcript, we cannot determine that

this finding was error.

                                     LIFE INSURANCE

       Former Husband argues that the trial court erred by failing to make required

findings before ordering him to maintain life insurance. When a trial court requires a party

to maintain life insurance as part of a dissolution order, it must “make specific evidentiary

findings regarding the availability and cost of insurance, the obligor’s ability to pay, and

the special circumstances that warrant the requirement for security of the obligation.”




                                              5
Foster v. Foster, 83 So. 3d 747, 748 (Fla. 5th DCA 2011). A trial court’s failure to make

these required findings is reversible error. Id. (citing Schoditsch v. Schoditsch, 888 So.

2d 709 (Fla. 1st DCA 2004)). Thus, although there is no transcript in the record, we will

reverse where the trial court fails to make factual findings in a final judgment regarding

the requirement on a party to maintain life insurance. For example, in Packo v. Packo,

120 So. 3d 232, 234 (Fla. 5th DCA 2013), this Court reversed a life insurance requirement

because the final judgment did “not include the detailed findings needed to support its

purpose,” and remanded for the trial court to make the necessary findings. See also

Palmer v. Palmer, 198 So. 3d 1035, 1036 (Fla. 5th DCA 2016) (determining that order

requiring spouse to obtain life insurance policy must include findings as to cost of

insurance and any special circumstances justifying need for policy); Velaga v. Gudapati,

148 So. 3d 550, 551 (Fla. 2d DCA 2014) (holding that court’s order requiring party to

maintain life insurance to secure alimony award must include findings on cost, whether

obligor can afford it, and special circumstances necessitating order).

       Here, the final judgment states that Former Husband “shall maintain life insurance

in the amount of $250,000.00 so long as he has either a child support or alimony

obligation to the [Former Wife].     The [Former Husband] shall execute an absolute

assignment of the policy to the [Former Wife] and designate her as the irrevocable

beneficiary.” The trial court’s failure to include the required factual findings in the final

judgment is an error apparent from the face of the final judgment. See Packo, 120 So.

3d at 234. Thus, we reverse and remand for the trial court to make specific findings

regarding the availability and cost of insurance, Former Husband’s ability to pay, and the




                                             6
special circumstances that warrant the requirement for security of the obligation. See

Foster, 83 So. 3d at 748; Packo, 120 So. 3d at 234.

                          THE PARENTING PLAN

       We agree with Former Husband’s argument that the trial court’s parenting plan

fails to comply with statutory requirements because it does not make findings required by

section 61.13(2)(b), Florida Statutes (2015). Section 61.13(2)(b) states that a parenting

plan must, at a minimum:

              1. Describe in adequate detail how the parents will share and
              be responsible for the daily tasks associated with the
              upbringing of the child;

              2. Include the time-sharing schedule arrangements that
              specify the time that the minor child will spend with each
              parent;

              3. Designate who will be responsible for:

              a. Any and all forms of health care. If the court orders shared
              parental responsibility over health care decisions, the
              parenting plan must provide that either parent may consent to
              mental health treatment for the child.

              b. School-related matters, including the address to be used
              for school-boundary determination and registration.

              c. Other activities; and

              4. Describe in adequate detail the methods and technologies
              that the parents will use to communicate with the child.

A trial court’s failure to make these required factual findings is reversible error even where

there is no transcript. Magdziak v. Sullivan, 185 So. 3d 1292, 1293 (Fla. 5th DCA 2016)

(reversing parenting plan despite having no transcript because plan set forth timesharing

schedule in only general terms).




                                              7
      Here, the final judgment required Former Husband and Former Wife to exercise

shared parenting of the child and “divide uncovered medical expenses in proportion to

the child support guideline percentages.” It also provided that Former Wife would “have

the majority of the responsibility with the parties’ remaining minor child” and devised the

following parenting plan:

      The [Former Husband] shall have liberal contact with the minor child upon
      providing 48 hours’ notice to the [Former Wife] of same. The parties shall
      exercise shared parental responsibility. The [Former Husband] shall have
      no less than 1/3 of the overnights with the minor child. As long as the
      [Former Wife] has not previously indicated to the [Former Husband] that the
      child had a conflict, the [Former Husband] shall be allowed to have two
      weekends per month and the balance of weekdays for a total of at least 10
      calendar nights per month. Both parents are to be involved with assisting
      the child with his school work during the time that the parent is exercising
      time sharing.

      Like the parenting plan in Magdziak, these findings “lack specificity.” See

Magdziak, 185 So. 3d at 1293 n.2. As a result, the trial court’s failure to include a more

specific parenting plan that complies with section 61.13(2)(b) in the final judgment is an

error apparent from the face of the final judgment. See id. at 1293. We reverse and

remand for the trial court to make and include in its final judgment a legally sufficient

parenting plan.

      AFFIRMED in part; REVERSED in part; REMANDED.

COHEN, C.J., and TORPY, J., concur.




                                            8
