The Lawletter Vol 41 No 4
A perennial problem in family law practice is arbitrary judges who dislike family law cases and impose strict time limits upon trials. Appellate courts are aware of this problem, and in extreme cases they have granted relief.
In Kilnapp v. Kilnapp, 140 So. 3d 1051 (Fla. Dist. Ct. App. 2014), the trial judge set a three-hour limit on the hearing. After only an hour had passed, the trial court abruptly ended the hearing. The wife had presented only one witness, and the husband's counsel had not even finished with direct examination of the husband. The appellate court summarily reversed. "The trial court erred when it denied the husband his basic and fundamental right to due process, specifically the right to be heard." Id. at 1054.
The husband did not have, of course, a right to be heard at unlimited length. For example, even if the husband honestly wanted an entire week of testimony, the trial court had discretion to impose a reasonable time limit.
But the time limit imposed in Kilnapp was unreasonable, in two different ways. First, a reasonable time limit should apply equally to both parties. In Kilnapp, the wife was able to present all of her evidence, while the husband was able to present only some of his.
Even if the court had not cut the hearing off arbitrarily, a time limit for the total hearing still encourages the party who presents first to present as much evidence as possible, so that the other party has little or no time left. This is not a purely theoretical risk. See Julia v. Julia, 146 So. 3d 516 (Fla. Dist. Ct. App. 2014) (error to cut off trial at previously stated time limit, where entire time had been taken by husband's witnesses). The trial court would have done better to allow each party 1.5 hours to present testimony, so that the time limit applied equally.
Also, while the Florida court did not focus on this point, the effect of the arbitrary cutoff was to deprive the wife of her right to cross-examine the husband after his testimony—a right that courts in other states have found to be fundamental. See Campbell v. Campbell, 49 Va. App. 498, 642 S.E.2d 769 (2007) (error to apply time limit in a manner that completely cut off the right to cross-examination). Again, if cross-examination counts toward the other party's time, there is a strong incentive to stretch out cross-examination, to run out the clock on the other side's evidence. It may be better to apply time limits only to direct examination.
Second, a reasonable time limit should be communicated to the parties in advance, so that they can plan their trial strategies appropriately. When the court grants a three-hour hearing, the parties should have the right to assume that all three hours will be available to present evidence. Cutting off a trial well in advance of a previously stated time limit is a serious abuse of the court's discretion to set reasonable time limits.