HERBERT BENEDICT v. LETA BENEDICT

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HERBERT BENEDICT,
Appellant,
v.
LETA BENEDICT,
Appellee.
No. 4D19-3266
[May 6, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrea Gundersen, Judge; L.T. Case No. FMCE07-
04313.
Jennifer A. Patti and Michael J. Alman of Greenspoon Marder LLP, Fort
Lauderdale, for appellant.
Stephen J. McDonald of McDonald & Crawford, P.A., Fort Lauderdale,
for appellee.
CONFESSION OF ERROR
PER CURIAM.
Appellant, Herbert Benedict (“Former Husband”) and Appellee, Leta
Benedict (“Former Wife”) divorced in November 2007 and as a part of the
Final Judgment of Dissolution, the trial court ordered Former Husband to
pay Former Wife $1,200 a month in permanent periodic alimony. Since
then, Former Husband has filed several pleadings seeking to either set
aside that judgment or to modify the alimony award. This appeal is from
the court’s September 2019 order on Former Husband’s amended petition
to modify alimony. Former Husband alleges the trial court erred in failing
to allow him to elicit former wife’s testimony at the hearing on his amended
petition and in failing to issue written findings as required under section
61.08, Florida Statutes (2019). Former Wife properly concedes error, 1 and
we reverse.
1We note that Former Wife’s confession of error was largely non-specific and did
not identify which of the issues on appeal had merit.
“Procedural due process consists of notice and a meaningful
opportunity to be heard.” Pagliaro v. Pagliaro, 264 So. 3d 196, 198 (Fla.
4th DCA 2019). “[T]he right to be heard at an evidentiary hearing includes
more than simply being allowed to be present and to speak. Instead, the
right to be heard includes the right to ‘introduce evidence at a meaningful
time and in a meaningful manner.’” Cole v. Cole, 159 So. 3d 124, 125–26
(Fla. 3d DCA 2013) (quoting Baron v. Baron, 941 So. 2d 1233, 1236 (Fla.
2d DCA 2006).
At the hearing, Former Husband, who was representing himself, asked
to call Former Wife as a witness to testify his assertion that her financial
affidavit was fraudulent. The court did not rule on this request and
instead proceeded to handle other matters during the hearing. As the
court was calculating his arrears at the end of the hearing, Former
Husband renewed his request to call Former Wife as a witness, but the
court refused to allow him to do so stating that it would be futile. “Perhaps
the additional witnesses would not have impressed the court, but the
husband had the right to present them and to argue his case at the
conclusion of all the testimony.” See Cole, 159 So. 3d at 126 (quoting
Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998)). Although the
court did allow Former Husband to proffer some of his testimony regarding
his allegations of the fraudulent affidavit, the right to be heard “includes
more than simply being allowed to be present and speak.” Cole, 159 So.
3d at 125.
In its order following the hearing, the court upheld Former Husband’s
requirement to pay permanent periodic alimony but reduced his payments
to $500 a month due to his substantial change in circumstances. The
court found that Former Wife still had a need for alimony and Former
Husband still had the ability to pay despite his change in circumstances.
However, to support maintaining the alimony award, the court must look
at more than just Former Wife’s “need;” it must also look at the factors
under section 61.08(2), Florida Statutes (2019). Here, the trial court
referred to the financial resources of the parties, which is one factor under
section 61.08(2)(d), but other than this, there is no other indication that it
considered any of the other factors in determining that Former Wife was
still entitled to alimony. See Rowe-Lewis v. Lewis, 267 So. 3d 1039, 1042
(Fla. 4th DCA 2019); accord Koski v. Koski, 98 So. 3d 93, 94 (Fla. 4th DCA
2012).
We therefore reverse and remand this matter for a new hearing on
Former Husband’s amended petition and direct the trial court to prepare
an order at the conclusion of the hearing that includes the required
2
findings of fact under section 61.08(2), and (9) if necessary, 2 to support
any modified alimony award.
Reversed and Remanded.
DAMOORGIAN, GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 Under section 61.08(9), the trial court is required to include “written findings of
exceptional circumstances” if the alimony award will leave Former Husband with
“significantly less net income than the net income of” Former Wife. See Koski, 98
So. 3d at 96.
3