       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 3, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-3036
                          Lower Tribunal No. 12-30059
                              ________________


                             Donnie D. Jackson,
                                    Appellant,

                                          vs.

                             Katrice M. Jackson,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,
Judge.

     Ilene F. Tuckfield, for appellant.

     Hegel Laurent, for appellee.


Before WELLS, SHEPHERD and SALTER, JJ.

     SHEPHERD, J.

                     ON MOTION FOR CLARIFICATION
         On consideration of appellant's Motion for Clarification, the court grants the

motion, withdraws the opinion issued on June 22, 2016, and substitutes the

following in its stead.

         In this appeal from a final judgment of dissolution of marriage, where the

appellant, through no fault of his own, has been unable to provide this court with a

transcript of the final hearing below, and the parties and the trial court have been

unable to reconstruct the record, we are compelled to summarily reverse for a new

trial.

         Appellant, Donnie D. Jackson, filed a petition for dissolution of marriage, to

which appellee, Katrice M. Jackson, answered and counter-petitioned. After a

final hearing, which took place over four days, the trial court entered a final

judgment adjudicating issues of parental responsibility and time-sharing regarding

the parties’ minor child, child support, alimony, equitable distribution of marital

assets and debts, and attorney’s fees and costs. Mr. Jackson filed his notice of

appeal from that judgment on December 19, 2014. On January 16, 2015, appellant

filed a notice of his request to the court reporting firm to transcribe the hearings

held on March 7, March 21, April 2, and April 14, 2014.               Soon thereafter,

appellant’s counsel was informed the court reporter who was present for the

proceedings died on January 5, 2015 (allegedly the result of a suicide). A search

for the court reporter’s recordings or stenographic equipment, performed by the



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court reporting firm and appellant’s counsel, was unavailing.           The parties

subsequently attempted to reconstruct the record in accordance with Florida Rule

of Appellate Procedure 9.200. Both parties filed their own recollection of the facts

and objected to the other’s version. The trial court denied a motion to supplement

the record.

      On appeal, appellant submitted an initial brief based on his recollection of

the facts, challenging the trial court’s rulings on timesharing, alimony, child

support, distribution of assets and attorney’s fees. Appellee moved to strike the

brief as filed and requested this court affirm on the basis of Applegate v. Barnett

Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). While we agree that appellant

may not file a brief without record support, due to the unusual circumstances in

this case, a remand for a new trial is warranted. The lack of a record was not due

to appellant’s lack of diligence in obtaining a court reporter or promptly requesting

a transcription for appellate purposes.      Additionally, appellant followed the

procedure set forth in Rule 9.200 in an attempt to reconstruct the record but was

unsuccessful when the opposing party objected to his recollection of the facts and

the trial court could not reconcile the two versions provided by the parties. See

Van Scoyoc v. York, 173 So. 2d 483, 483 (Fla. 2d DCA 1968) (“[T]his court

necessarily has the power to award a new trial where, as here, essential records

have been destroyed by an official of the lower court through no fault of the



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appellant.”); see also 9863 West Atlantic Avenue, Inc. v. Florida, Dep’t of

Transportation, 814 So. 2d 460 (Fla. 4th DCA 2001); compare Chisholm v.

Chisholm, 538 So. 2d 961 (Fla. 3d DCA 1989) (dismissing appeal for lack of

record where appellant made no attempt to reconstruct the record).

      Accordingly, we affirm the judgment of dissolution, but reverse the trial

court’s rulings on timesharing, alimony, child support, distribution of assets and

attorney’s fees and remand for a new trial as to these matters.




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