Posted by Nydia Streets of Streets Law in Florida Alimony
The right to call and cross examine witnesses is fundamental to due process in a Florida family law proceeding. When a former husband was prohibited by the court from cross-examining the former wife, he appealed the order concerning his request to modify alimony payments in Benedict v. Benedict, 4D19-3266 (Fla. 4th DCA May 6, 2020).
In their final judgment of divorce, the former husband was ordered to pay the former wife $1,200 per month in permanent alimony. The former husband filed a petition to decrease or terminate the alimony and at a hearing on the motion, the former husband requested that he be able to call the former wife as a witness and cross examine her regarding the veracity of her financial affidavit. The court declined to allow the testimony but did allow the former husband to proffer about what he hoped the testimony would elicit. The court ultimately granted the petition for modification, reducing the alimony to $500 per month. However, the former husband appealed on the basis that the court did not allow him to elicit the former wife’s testimony and it did not make the required statutory findings concerning the former wife’s need for alimony.
The appellate court ruled the former husband should have been allowed to cross examine the former wife, even if the trial court thought doing so would be futile. The court held “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.’” As to the alimony modification, the appellate court also reversed, holding “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.”
Modifying alimony in Florida requires a multi-factor analysis. Schedule a consultation with a Miami divorce lawyer to understand how likely the court is to grant your request to lower or increase alimony payments.