ZANJA WALTERS v. RICHARD PETGRAVE , 248 So. 3d 1202 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ZANJA WALTERS,
Appellant,
v.
RICHARD PETGRAVE,
Appellee.
No. 4D18-446
[June 13, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrea Gundersen, Judge; L.T. Case No. FMCE 2015-
015012.
Robin Bresky and Jeremy Dicker of Law Offices of Robin Bresky, Boca
Raton, for appellant.
Steven S. Guekjian and Crystal C. Roland of Roland Guekjian, P.A.,
Miami, for appellee.
GERBER, C.J.
The mother appeals from the circuit court’s final judgment establishing
paternity, timesharing, and child support. The mother raises multiple
grounds, including that the circuit court denied the mother’s due process
rights by precluding her from presenting her case-in-chief at the final
hearing. We agree with this argument, reverse the final judgment, and
remand for completion of the final hearing to allow the mother to present
her case-in-chief.
We recognize that the circuit court set a limited amount of time for the
hearing and endeavored to balance both sides’ time allotment. However,
“[d]ue process requires that a party be given the opportunity to be heard
and to testify and call witnesses on the party’s behalf . . . and the denial
of this right is fundamental error.” Julia v. Julia, 146 So. 3d 516, 520 (Fla.
4th DCA 2014) (citation omitted).
Julia is instructive. In Julia, we summarized our findings and
conclusions as follows:
The record clearly evidences a pattern of depriving the Wife
of her opportunity to be heard and present her case
throughout the trial. Although the trial court made
statements that the parties would be given equal time and that
the Wife would get the opportunity to present her case-in-
chief, no such opportunity was presented. The Wife was not
able to call any witnesses on her behalf or present argument
of counsel at the end of the Husband’s case in violation of the
guarantees of due process.
Additionally, this Court has recognized that justice cannot
be “administered arbitrarily with a stopwatch,” yet that is
what happened in the instant case. Throughout the hearing,
the trial court made it clear that it intended to complete the
trial in one day without going much beyond 5:00 p.m.
Although this goal is not inherently violative of due process,
summarily shortening proceedings can give rise to a due
process violation when they fail to afford a party a full, fair,
and meaningful opportunity to be heard, such as in this case
where the Wife was severely restricted in time to examine
witnesses, to call any of her own witnesses, or to make any
argument as to the evidence presented.
Id. (internal citation omitted).
Julia is slightly distinguishable from the instant case. Here, when the
parties exceeded the initial one day allotment for the final hearing, the
circuit court appropriately scheduled a second day to attempt to complete
the final hearing. And on that second day, the circuit court gave both
parties an opportunity to present closing arguments. However, on that
second day, despite the court having stated repeatedly that the mother
would have the opportunity to present her case-in-chief, the circuit court
ultimately stated that due to its time limitations, the mother would not
have the opportunity to present her case-in-chief, and instead would be
limited to presenting closing argument.
This was error. “Even if [a party’s] evidence would not have impressed
the court, a party has the right to present evidence and to argue the case
at the conclusion of all the testimony.” Minakan v. Husted, 27 So. 3d 695,
699 (Fla. 4th DCA 2010) (emphasis added).
Although a harmless error analysis does not apply to the fundamental
error of a due process violation, we can say from our review of the record
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that the violation was not harmless. The circuit court, in announcing its
findings, stated “there was not sufficient testimony” regarding certain
financial issues, and the court “didn’t hear any testimony” from the mother
about the child’s school and health issues. In the final judgment, the court
echoed its oral findings by writing “there was no testimony from the
Mother” to contradict the father’s allegation’s regarding school and health
issues. Based on the court’s precluding the mother from presenting her
case-in-chief, it is unknown whether the mother could have presented
testimony which may have addressed these issues.
Based on the foregoing, we reverse the final judgment, and remand for
completion of the final hearing to allow the mother to present her case-in-
chief. After the mother completes her case-in-chief, both parties shall be
provided a meaningful opportunity to present closing arguments. Julia,
146 So. 3d at 520.
As for the mother’s other arguments on appeal, we note that, on
remand, the mother may renew her attempt to use charts and summaries
to establish the father’s income, provided that the mother complies with
section 90.956, Florida Statutes (2017), and provided that the summaries
are not otherwise objectionable. The mother’s remaining arguments,
challenging certain findings in the court’s final judgment, are moot given
our reversal of the final judgment on due process grounds.
Reversed and remanded.
GROSS and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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