RICHARD HENRY KNOX BROOKS, APPELLANT,
v.
PATRICIA ANN BARRETT, APPELLEE
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A Florida appellate court reversed a trial court's sua sponte amendment of a domestic violence injunction against the husband, holding that the court violated due process by modifying the injunction without notice or a hearing afforded to the husband.
The trial court erred in amending the injunction without notice and a hearing. The court cannot sua sponte amend an injunction when the affected party has not been given notice or an opportunity to be heard, as required by Florida statute and the Florida Family Law Rules of Procedure.
[1] A trial court cannot sua sponte amend an injunction against domestic violence without providing notice and an opportunity to be heard.
[2] Mutual injunctions against domestic violence are prohibited by statute.
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Join FLexlaw to unlock all legal intelligence“the trial court cannot sua sponte amend an injunction when there has been no notice or hearing”
Establishes the core legal principle that courts lack authority to modify injunctions without proper procedural protections
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Join FLexlaw to unlock all legal intelligenceThe wife filed a petition for a domestic violence injunction against the husband in August 1995. After a hearing, the parties orally agreed to a mutua…
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PER CURIAM.
Richard Henry Knox Brooks (husband) appeals contending the trial court erroneously entered an amended injunction against domestic violence without giving him notice and an opportunity to be heard. We agree and reverse.
Patricia Ann Barrett (wife) filed a petition for injunction for protection against domestic violence on August 2, 1995. A temporary injunction was entered. The husband answered denying the wife’s allegations and petitioned for dissolution of marriage. He sought a protective injunction against the wife. A hearing was held August 14, 1995. According to the husband, the parties orally agreed to settle the matter by agreeing to a mutual injunction against domestic violence, which incorporated temporary custodial/visitation/support arrangements with respect to their minor children.
Both parties were charged with violations of the mutual injunction against domestic violence. The judge considering the indirect criminal contempt charge against the wife entered an order dismissing the charge, ruling that the mutual injunction as to the wife1 was unenforceable because a mutual injunction is prohibited by section 741.30(l)(h), Florida Statutes (1995).2 Thereafter, the trial court sua sponte entered an amended injunction against domestic violence as to the husband.
The husband complains that this amended injunction modified the previously entered mutual injunction without motion, notice or a hearing afforded to him. We agree with the husband that the trial court cannot sua sponte amend an injunction when there has been no notice or hearing. § 741.30(6)(a), Fla. Stat. (1995). See also rule 12.610(c)(1)(B), Florida Family Law Rules of Procedure.
Accordingly, the amended injunction against domestic violence is reversed and the cause is remanded for further proceedings consistent with this opinion.
JOANOS, VAN NORTWICK and PADOVANO, JJ., concur. . The court did not make any ruling as to the husband because the husband was not before the court. The court commented: ''[s]uch rulings, if required, will come only after notice and opportunity to be heard.”
. Before July 1, 1995, mutual injunctions against domestic violence were permitted provided certain conditions were met. § 741.30(l)(h), Fla. Stat. (Supp.1994). However, in chapter 95-195, § 5, Laws of Florida, § 741.30(l)(h) was amended to prohibit mutual orders of protection. This act was effective July 1, 1995 and applied to offenses committed on or after that date. The wife's petition for injunction and protection against domestic violence involved an offense which allegedly occurred on August 1, 1995. The husband’s request for a protective injunction against the wife does not allege an offense occurring before the effective date of the statute. Thus, it appears that the newly amended section 741.30(l)(h) applies and a mutual injunction was prohibited.
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In the Interest of C.K. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 88 So. 3d 975 (Fla. 2d DCA 2012)…v. A.M.C., 67 So. 3d 1181, 1182-83 (Fla. 2d DCA 2011); Douglas, 65 So. 3d at 607; Smith v. Smith, 964 So. 2d 217, 219. (Fla. 2d DCA 2007); Dep’t of Children & Families v. D.B.D., 42 So. 3d 916, 920-21 (Fla. 4th DCA 2010); see also Brooks v. Barrett, 694 So. 2d 38, 38 (Fla. 1st DCA 1997) (holding — without discussing procedural due process implications — that trial court could not sua sponte amend an injunction where there had been no notice or hearing). Here, C.K. was provided with no notice, nor was he pro…
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Samanka v. Brookhouser, 899 So. 2d 1190 (Fla. 2d DCA 2005)…junction and requested a hearing. The trial court denied Samanka’s request. This was error. A nonmoving party must be afforded a hearing before an injunction may be amended. Mayotte v. Mayotte, 753 So. 2d 609 (Fla. 5th DCA 2000); Brooks v. Barrett, 694 So. 2d 38 (Fla. 1st DCA 1997). In this case, the trial court based the modified injunction entirely on the allegations in the motion. Samanka was not given an opportunity to challenge those allegations. Because Samanka has not had her “day in court,” she was…
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Mayotte v. Mayotte, 753 So. 2d 609 (Fla. 5th DCA 2000)…g for the modification, without a hearing, and without notice to the husband. The trial court cannot amend the injunction where there has been no notice given to the husband or hearing giving him the opportunity to be heard. See Brooks v. Barrett, 694 So. 2d 38 (Fla. 1st DCA 1997); see also Fla. Fam. L.R.P. 12.610(c)(1)(B) and 12.610(c)(6). Accordingly, the order is reversed and the cause is remanded for further proceedings consistent with this opinion. REVERSED and REMANDED. PETERSON, J., and ORFINGER…
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