Incarcerated husband denied due process when hearing proceeded without his telephonic presence

In Anderson v. Anderson, 41 FLW D2147a (Fla.5th DCA) in case no. 5D16-888 in an opinion filed on September 16, 2016, portion of order distributing personal property reversed where  former husband is an inmate in the Florida Department of Corrections and filed a motion to appear at the final hearing telephonically and the trial court granted his motion and directed the Department of Corrections to bring him to the telephone at the appointed time, but because of a clerical error at the Department of Corrections, that was not done and the hearing proceeded without him finding A prisoner involved in civil litigation has the right to be heard, but must take the initiative to secure the proper opportunity to appear telephonically.

Full opinion follows:

(PER CURIAM.) The former husband, Iris Lamar Anderson, appeals a final judgment dissolving his marriage to the former wife, Annetta Ann Anderson. He argues that he was denied due process when the final hearing was conducted without his telephonic presence. We affirm in part and reverse in part.

The former husband is an inmate in the Florida Department of Corrections. After the former wife filed a petition for dissolution of marriage, the former husband filed a pro se answer, agreeing that the marriage should be dissolved, but requesting the distribution of certain personal property. He also filed a motion to appear at the final hearing telephonically. The trial court granted his motion and directed the Department of Corrections to bring him to the telephone at the appointed time. However, because of a clerical error at the Department of Corrections, that was not done and the hearing proceeded without him.

A prisoner involved in civil litigation has the right to be heard, but must take the initiative to secure the proper opportunity to appear telephonically. Rogers v. Rogers, 977 So. 2d 687, 687 (Fla. 4th DCA 2008) (Warner, J., concurring specially). Here, the former husband did all that was required of him. Through no fault of his, or the trial court, his attendance was frustrated. Accordingly, while we affirm the final judgment dissolving the marriage, we reverse and remand for further proceedings consistent with the former husband’s due process rights in determining what, if any, personal property the former husband is entitled to receive.

AFFIRMED IN PART; REVERSED IN PART; REMANDED. (ORFINGER, BERGER and EDWARDS, JJ., concur.)

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About Beth

Elizabeth Wolt is an AV rated marital and family law attorney. She runs a boutique law firm catering to a select group of clients taking on a low number of cases so she can devote individulaized attention during this difficult transition. Identified as one of the Best and Brightest college Students by USA Today in 1994. Featured in a cover article on May 8, 1997 of the Wall Street Journal. Graduated Magna Cum Laude from Undergraduate School- University of South Florida with a BA in Psychology 1994. Graduated Cum Laude from University of Miami School of Law- JD.1997. Named to the list of "Top Lawyers in Florida" by the Legal Network 2013, 2014, & 2015. AV rated by Martindale Hubbel in both ethics and ability. Rated "Excellent" by AVVO legal.com Featured in the American Lawyer December 2014
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