MYRTICE JANE HAYES, APPELLANT,
v.
TERRY W. HAYES, APPELLEE
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A mother appealed an ex parte temporary injunction prohibiting her from removing her child from Polk County to relocate to Maryland for employment. The court reversed, holding that the father's verified petition failed to comply with Florida Rule of Civil Procedure 1.610 by not alleging immediate and irreparable harm or demonstrating efforts to provide notice, and that the contemplated relocation alone does not constitute a substantial change in circumstances justifying such relief.
The court held that the father's verified petition failed to comply with rule 1.610(a) by failing to specify facts showing immediate and irreparable harm and by not certifying efforts made to give notice or reasons why notice should not be required. The court further held that where a final dissolution judgment contains no restriction on a child's residence, the mere assertion that a custodial parent intends to move to another state, without more, does not constitute immediate and irreparable harm justifying a temporary injunction without notice.
[1] A temporary injunction may not be entered without notice unless the movant files a verified pleading specifying facts showing immediate and irreparable harm.
[2] A movant's attorney must certify in writing any efforts made to give notice of a request for a temporary injunction and the reasons why notice should not be required.
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Join FLexlaw to unlock all legal intelligence“Before the court may enter a temporary injunction, the movant must file a verified pleading specifying facts showing immediate and irreparable harm. Fla.R.Civ.P. 1.610(a). In addition, the movant's attorney must certify in writing any efforts made to give notice and the reasons why notice should not be required.”
Establishes the procedural requirements for obtaining a temporary injunction that the father's petition failed to meet.
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Join FLexlaw to unlock all legal intelligenceThe parties' dissolution judgment awarded shared parental responsibility to both parents, designated the mother as primary custodial parent, and grant…
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PER CURIAM.
This is an appeal from a nonfinal order issued without notice temporarily enjoining the primary custodial parent from removing the parties’ minor child from Polk County. Appellant, the mother and custodial parent, complains only that the verified pleading requesting the order and the order failed to comply with Florida Rule of Civil Procedure 1.610. Because we find the verified pleading failed to comply with rule 1.610, we need not address in detail the deficiencies of the order. The parties’ final judgment of dissolution awarded shared parental responsibility, designated the mother as primary custodial parent, and granted “reasonable and liberal visitation” to appellee, the father. The judgment contained no restriction against removing the minor child and her place of residence from Polk County or the state without prior approval, either of the father or the court.
When the mother told the father she intended to move with the minor child to Maryland for a better employment opportunity, the father filed a verified petition for modification of custody. In the petition, he requested custody of their minor child based on the substantial changed circumstance of the mother’s announced relocation. He alleged the change of residence would deny him the right to shared parental responsibility, and the child the right to frequent and continuing visitation as awarded in the judgment. Alternatively, the petition sought to restrain and enjoin the mother from changing the child’s residence or removing the child from Polk County. The petition did not set forth what, if any, efforts had been made to give notice to the mother or why notice should not be required. The day the petition was filed the judge entered an ex parte order temporarily enjoining the mother from removing the child from Polk County. The order did not define the injury or state why the injury may be irreparable or why the order was entered without notice, nor was it conditioned on the posting of a bond.
Before the court may enter a temporary injunction, the movant must file a verified pleading specifying facts showing immediate and irreparable harm. Fla.R.Civ.P. 1.610(a). In addition, the movant’s attorney must certify in writing any efforts made to give notice and the reasons why notice should not be required. Fla.R.Civ.P. 1.610(a). The father’s petition for modification failed in all these respects.
The only fact alleged that could conceivably be construed as immediate and irreparable injury is the relocation of the mother to a foreign state. Where the final judgment of dissolution does not restrict the residence of the minor child, the mere assertion that a custodial parent intends to move to a foreign state, without more, is not a substantial change in circumstances which would support a change of custody. Zugda v. Gomez, 553 So. 2d 1295 (Fla. 3d DCA 1989); Nissen v. Murphy, 528 So. 2d 502 (Fla. 2d DCA 1988). If the potential move is not a substantial change in circumstances, it is not immediate and irreparable harm justifying the entry of a temporary injunction without notice.
With respect to the order, we find the trial court erred in failing to condition the temporary injunction on the posting of a bond. Fla.R.Civ.P. 1.610(b). Any further attempts by the movant to temporarily enjoin the mother without notice must be made in compliance with the applicable authorities.
Reversed and remanded.
SCHEB, A.C.J., and THREADGILL and PARKER, JJ., concur.
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Wilson v. Blaine Alan Roseberry, 669 So. 2d 1152 (Fla. 5th DCA 1996)…he mother had relocated with the children to Illinois was not sufficient to justify a finding of changed circumstances because the parties’ final dissolution judgment did not prohibit the mother from relocating with the children. See Hayes v. Hayes, 578 So. 2d 54, 56 (Fla. 2d DCA 1991). Furthermore, the record is clear that the trial court ordered a temporary modification of custody without affording the mother prior notice or the opportunity to present evidence on her own behalf. Under these facts, such an…
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Laloggia-Vonhegel v. Vonhegel, 732 So. 2d 1131 (Fla. 2d DCA 1999)…that it would be in the children’s best interest to be placed in Mr. VonHe-gel’s custody, even temporarily. The custodial parent’s relocating the children to another state is insufficient by itself to warrant a change in custody. See Hayes v. Hayes, 578 So. 2d 54, 56 (Fla. 2d DCA 1991). Although there is evidence that at the time of the June 25 hearing Mr. Von-Hegel could then financially afford to support his children as well as place them in day care, this does not meet the extraordinary burden of proving…
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Fredman v. Fredman, 917 So. 2d 1038 (Fla. 2d DCA 2006)…and remanded for further proceedings consistent with this opinion. SALCINES and CANADY, JJ„ Concur. . Language that would be considered general visitation rights would be the standard “reasonable and liberal” visitation rights. See Hayes v. Hayes, 578 So. 2d 54 (Fla. 2d DCA 1991).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State of Fla. Dep't of Banking & Fin., 528 So. 2d 502 (Fla. 2d DCA 1988)
- Mendez v. State, 553 So. 2d 1295 (Fla. 3d DCA 1989)