MATTHEW P. MILLER, APPELLANT,
v.
MARY KAREN MILLER, APPELLEE
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Matthew Miller appeals an order granting a six-month injunction for protection against domestic violence that excluded him from his home and restricted his access to his minor child. The Fourth District Court of Appeal reversed, holding that the trial court violated due process by refusing to allow the husband to present evidence and cross-examine the wife at the hearing.
The court held that the trial court violated procedural due process by extending the temporary injunction without a full evidentiary hearing. Section 741.30 does not contemplate extending a temporary injunction for six months or entering a permanent injunction without a full hearing where the defendant has an opportunity to be heard.
[1] A court abuses procedural due process when it denies a party the right to be heard, present evidence, and cross-examine witnesses in a hearing concerning an injunction.
[2] A temporary injunction for protection against domestic violence cannot be extended for a six-month period without a full evidentiary hearing.
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Join FLexlaw to unlock all legal intelligence“None of the elements involved in the notion of procedural due process has greater importance than the right to be heard.”
Establishes the fundamental principle that due process requires the right to be heard before losing liberty or property interests.
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Join FLexlaw to unlock all legal intelligenceThe trial court granted an ex parte temporary injunction against Matthew Miller based on his wife Mary Karen Miller's verified petition. At the hearin…
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PER CURIAM.
Matthew P. Miller appeals an order entering a six-month injunction for protection against domestic violence under section 741.30, Florida Statutes, restraining and enjoining him from domestic violence against his wife, Mary Karen Miller, excluding him from their residence, and awarding the wife temporary custody of the parties’ minor child, allowing the husband only limited supervised visitation, and ordering him to pay temporary child support. We reverse.
The record indicates, and the wife does not dispute, that the ex parte injunction contained notice to the husband to attend a hearing on the petition for injunction for protection. However, at that hearing the court refused the husband’s attempts to offer evidence and cross-examine the wife, insisting instead that the hearing was not an evidentiary hearing but was on the wife’s petition for an extension of the ex parte temporary injunction, which had been granted based on her verified petition. Again, the record does not indicate that the wife filed any petition for extension or gave the husband notice of such a petition, nor does the wife suggest that she did. Without requiring the wife to make any showing of good cause for the extension, see § 741.30(5)(e), Fla.Stat. (Supp.1996), and without stating good cause on its own motion, see Fla.Fam. L.R.P. 12.610(c)(4)(A), the court then extended the temporary injunction for a six-month period and issued what appears to be a final judgment on the petition, or a permanent injunction.
None of the elements involved in the notion of procedural due process has greater importance than the right to be heard. DSA Marine Sales & Serv., Inc. v. County of Manatee, 661 So. 2d 907 (Fla. 2d DCA 1995). On no more than the wife’s bare verified petition, with no opportunity to contest her allegations, the husband has been restrained from his home and his child for a six-month period. Section 741.30 does not contemplate the extension of a temporary injunction for such a period, nor the entry of a permanent injunction without a full hearing.
Accordingly, we reverse and remand for the trial court promptly to conduct a full evidentiary hearing pursuant to section 741.30(5)(c) and rule 12.610(c)(1)(B).
REVERSE and REMAND.
GUNTHER, C.J., and GLICKSTEIN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. Alisa Smith, 964 So. 2d 217 (Fla. 2d DCA 2007)…re such an opportunity was due Mr. Smith. “ ‘None of the elements involved in the notion of procedural due process has greater importance than the right to be heard.’ ” Pope v. Pope, 901 So. 2d 352, 353 (Fla. 1st DCA 2005) (quoting Miller v. Miller, 691 So. 2d 528, 529 (Fla. 4th DCA 1997)); Samanka v. Brookhouser, 899 So. 2d 1190, 1191 (Fla. 2d DCA 2005) (finding daughter’s due process rights were violated when injunction was modified without a hearing); see also Adili v. Adili, 913 So. 2d 1240, 1241 (Fla. 4t…
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Pope v. Pope, 901 So. 2d 352 (Fla. 1st DCA 2005)…tnesses. We reverse and remand with directions to the trial court to conduct a prompt, full eviden-tiary hearing in accordance with section 741.30, Florida Statutes (2004). See Wooten v. Jackson, 812 So. 2d 609 (Fla. 1st DCA 2002); Miller v. Miller, 691 So. 2d 528 (Fla. 4th DCA 1997). In response to the allegations in the wife’s petition, the trial court issued a September 18, 2004, temporary injunction for protection against domestic violence. Due to the lack of prior notice to the husband, the parties were…
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Kilnapp v. Kilnapp, 140 So. 3d 1051 (Fla. 4th DCA 2014)…stic violence where the court heard only from the wife and her witnesses and ruled in the wife’s favor before allowing the husband to present any witnesses or evidence); Pope v. Pope, 901 So. 2d 352, 353 (Fla. 1st DCA 2005) (same); Miller v. Miller, 691 So. 2d 528, 529 (Fla. 4th DCA 1997) (same). In summary, we find that the trial court abused its discretion, and we reverse and remand for a new hearing consistent with this opinion. Reversed and remanded. WARNER, J., and TUTER, JACK, Associate Judge, concur…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DSA Marine Sales & Serv., Inc. v. Cnty. OF Manatee, 661 So. 2d 907 (Fla. 2d DCA 1995)