It is common for courts to ask the parties for proposed orders. And it is not unusual for a court to adopt parts (and sometimes large portions) of a proposed order. The trouble starts when a court adopts a proposed order verbatim. Such orders are not per se reversible, but they do raise concerns for appellate courts. The Fourth District Court of Appeal explained why in Muniz v. King, where it reversed an order because the trial court did not “exercise independent decision-making.”
The seminal opinion in this area is Perlow v. Berg-Perlow, which the Supreme Court of Florida decided in 2004. The court explained, “(1) the trial judge may ask both parties or one party to submit a proposed final judgment; (2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgment and make objections; (3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and (4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.”
Caselaw has since developed factors appellate courts consider when assessing whether a trial court has exercised independent decision-making before adopting a proposed order. The factors include 1) whether the signed order is consistent with or differs from the verbal ruling, 2) how much time has passed since the hearing and whether the judge remembers the case, 3) whether there are irregularities or conflicts in the terms of the order, 4) whether the judge participated in the trial, and 5) whether the judge edited or altered the proposed order to conform with his or her conclusions in the case, or whether the trial court signed the proposed order verbatim.
In Muniz, the trial court entered a final order of dissolution of marriage, and the mother moved for child support. The trial court held an evidentiary hearing, which was not recorded or transcribed. The parties, however, agreed that the trial court did not announce its findings of fact or conclusions of law at the hearing. The trial court asked the parties to submit proposed orders.
One business day later, the trial court adopted verbatim the father’s proposed order. “Aside from removing blank spaces and entering a date, the court’s order matche[d] the father’s proposed order, including grammatical and spelling errors and conflicting and partially repetitive paragraphs.” According to the district court, it was clear from the record that the mother did not have an opportunity to object to the father’s proposed order. Moreover, the lack of transcript did not bar reversal because “it appeared the trial court did not independently consider the merits of the case.” The court explained that a judgment is not per se reversible merely because a trial court adopts verbatim a proposed order; however, reversal is appropriate where the circumstances “create an appearance that the judgment does not reflect the judge’s independent decision making.”
Takeaways: 1) Be sure your proposed order is analytically consistent and accurately reflects any factual findings and legal conclusions announced by the trial court. 2) Avoid writing the proposed order from an advocate’s point of view. Write objectively without inflammatory language and without shading the facts or law. 3) Send the opposing party a copy of the proposed order when you submit it to the court or sooner if possible. 4) Consider attaching a cover letter to the proposed order with language like this: “Please find attached a proposed order which [party] believes accurately sets forth the relevant facts and this court’s rulings in this case. If your independent analysis is consistent with this proposed order, [party] asks that you please sign the order and have your judicial assistant serve copies.”