RONALD PETTRY, APPELLANT,
v.
LINDA PETTRY, APPELLEE

Fla. 5th DCA | 1998-02-20
No. 97-790
COBB and HARRIS, JJ., concur.
706 So. 2d 107 Florida District Court of Appeal, Fifth District (1998) Positive Treatment
Cited by 45 cases

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Holding

The court held that the husband's due process rights were violated by the denial of the opportunity to present witnesses and closing arguments.


Headnotes

[1] Due process requires that a party be given the opportunity to be heard, to testify, and to call witnesses on their behalf.

[2] Due process requires that a party be given the opportunity to present a closing argument.

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Facts & Procedural History

Following a dissolution judgment that awarded rehabilitative alimony, the wife petitioned for modification to permanent alimony. At the modification h…

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Opinion of the Court
ORFINGER, M., Senior Judge.

ORFINGER, M., Senior Judge.

. Ronald Pettry, the former husband (husband), appeals an order modifying an earlier dissolution judgment by converting rehabilitative alimony to permanent alimony, beginning on the. date the rehabilitative alimony expired. For the reasons set forth, we reverse.

The former wife (wife) was 39 years old when the dissolution judgment was entered. During the thirteen and one-half year marriage she obtained an AA degree and then a BA. After the dissolution she applied for the nursing program at the University of Central Florida, but her application was rejected. She then was admitted to a private college where she obtained an MBA degree. Among other things, the dissolution judgment awarded her rehabilitative alimony in the amount of $2500 per month for a period of 48 months.

Prior to the expiration of the rehabilitative period, the wife filed a petition for modifica tion, alleging her inability to support herself despite her advanced educational degrees, and requesting conversion of the spousal support award to permanent alimony. The petition for modification proceeded to a hearing before a judge other than the judge who entered the original dissolution judgment.

The husband contends his due process rights were violated at the modification hearing when the trial judge denied him the opportunity to call witnesses and denied him the right to present closing argument. He also contends that the trial judge clearly expressed his disagreement with the original alimony award made by his predecessor, and set out to correct what he perceived to be a mistake, rather than apply recognized modification principles.

The wife was given an entire day, plus a short time on the second day to present her case, which included expert testimony to the effect that her mental or emotional health hindered her ability to work. The husband, on the other hand, was given forty five minutes during which he presented some witnesses, and when his attorney sought to call him to the stand and announced to this court he had other witnesses who were not yet present, the judge stopped him and asked who the witnesses were, and what they would testify to. Counsel replied that he wished to call a party by the name of “Hepp” regarding ownership of the house in which the wife lived, which she claimed she was renting; a witness by the name of Post; and he wanted to recall Dr. Weinstock and clarify whether she had diagnosed the wife’s mental condition as the same at the time of the dissolution. Judge Dickey determined that Hepp’s testimony was irrelevant and immaterial; Post’s testimony was not permissible because it was offered to challenge the wife’s credibility; and that Dr. Weinstock’s testimony was not necessary. After making these determinations, the judge immediately announced his decision, without giving either party an opportunity to make closing argument.

Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 6th DCA 1993), and the denial of this right is fundamental error. See Lopez v. Lopez, 689 So. 2d 1218, 1219, n.

1.

Moreover, due process requires that a party be given the opportunity to present closing argument. Strong v. Mt Dora Growers Cooperative, 495 So. 2d 1238 (Fla. 5th DCA 1986); Woodham v. Roy, 471 So. 2d 132 (Fla. 4th DCA 1985); Chalk v. State, 443 So. 2d 421 (Fla.App. 1984). 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. Denial of those rights was harmful error.

We find no error in the trial court's acceptance of Marilyn Schleyer as an expert witness on the subject of the wife’s mental or emotional health. According to the testimony presented, Schleyer had treated the wife’s mental or emotional health problems while the wife resided in Kentucky. Schleyer had been licensed and board certified in psychiatric and mental health nursing and had been licensed to practice her profession in Kentucky for four years prior to her testifying here. She had also received her masters degree in counseling two years prior to this hearing. The trial judge has discretion to determine the qualification of and the range of subjects about which an expert witness will testify, and that determination will not be disturbed on appeal absent a clear showing of abuse of discretion. Mathieu v. Schnitzer, 559 So. 2d 1244 (Fla. 4th DCA 1990); Guy v. Kight, 431 So. 2d 653 (Fla. 5th DCA), rev. denied, 440 So. 2d 852 (Fla.1983).

To qualify as an expert witness, the witness must have such skill, knowledge or experience so as to make it appear that his or her opinion will aid the trier of fact in the search for the truth. See, § 90.702, Fla. Stat.; Fla. R. Civ. P. 1.390(a). Although Schleyer had never previously testified as an expert, this alone would not disqualify her. Everything must have its beginning.

We find no abuse of the court’s discretion in allowing her testimony.

For the reasons expressed, we reverse the final judgment of modification and remand the cause for a new hearing. Because the trial judge made it clear that he disagreed with the original judgment granting the wife rehabilitative rather than permanent alimo ny, we direct a rehearing be assigned to another judge.

REVERSED and REMANDED.

COBB and HARRIS, JJ., concur.


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Cited By (26 total)

  • Julia v. Julia, 146 So. 3d 516 (Fla. 4th DCA 2014)
    …es 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.” Minaban v. Husted, 27 So. 3d 695, 698 (Fla. 4th DCA 2010) (quoting Pettry v. Pettry, 706 So. 2d 107,108 (Fla. 5th DCA 1998)). The opportunity to be heard must be “full and fair, not merely colorable or illusive.” Pelle v. Diners Club, 287 So. 2d 737, 738 (Fla. 3d DCA 1974) (“[W]e find that the trial court erred in failing to grant the appellant an…
  • Zelman v. Zelman, 175 So. 3d 871 (Fla. 4th DCA 2015)
    …, 1027 (Fla. 2d DCA 2007) (internal citations and quotations omitted); see also Begens v. Begens, 617 So. 2d 360, 361 (Fla. 4th DCA 1993) (“An opportunity to be heard includes the right to present evidence bearing on the issues.”); Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998) (“Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, and the denial of this right is fundamental error.” (internal citation omitted)). [*879] As Lois point…
  • Riesa P. Minakan v. Husted, 27 So. 3d 695 (Fla. 4th DCA 2010)
    …he wife that she did not receive due process. “Due 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.” Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998) (internal citation omitted); see also Slotnick v. Slotnick, 891 So. 2d 1086, 1089 (Fla. 4th DCA 2004) (circuit court committed reversible error when it summarily disposed of factual issues by informally discussing them with…

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