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.

1 We note that Former Wife’s confession of error was largely non-specific and did 

not identify which of the issues on appeal had merit.
2

“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 
3

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.