SHERRI LYNN SCHMITZ, APPELLANT,
v.
PAUL RICHARD SCHMITZ, APPELLEE
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Sherri Lynn Schmitz appeals a temporary injunction for domestic violence protection and custody order, arguing she was denied due process when the trial court allowed the psychologist to testify based on a 35-page custody evaluation report delivered to her attorney only one day before the hearing. The court agrees and reverses, finding the trial court abused its discretion in determining an emergency existed to override the procedural rules requiring adequate time for preparation.
The trial court's decision to permit the psychologist's testimony based on the report delivered only one day before the hearing constituted an abuse of discretion and denied the appellant procedural due process, because the circumstances did not rise to the level of extraordinary circumstances required to find a true emergency exception to the rule.
[1] A trial court abuses its discretion and deprives a party of procedural due process by permitting testimony based on a report received by the party the day before the hear…
[2] Florida Family Law Rule of Procedure 12.363(b)(1) requires adequate notice and opportunity to prepare when a custody evaluation report is considered in a domestic violenc…
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Join FLexlaw to unlock all legal intelligence“the circumstances of this case do not rise to the level of the extraordinary circumstances required to find a true emergency as held in Stanley-Baker v. Baker”
The appellate court's articulation of the legal standard and rejection of the trial court's emergency finding
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA custody evaluator was appointed two months before a hearing on a temporary injunction for protection against domestic violence. The 35-page single-s…
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PER CURIAM.
We grant the motion for rehearing, withdraw the opinion issued on November 10, 2004, and substitute the following.
Appellant, Sherri Lynn Schmitz, appeals from the non-final Order on Temporary Injunction for Protection Against Domestic Violence and Other Temporary Relief. She argues that she was deprived of due process at the hearing because, contrary to Florida Family Law Rule of Procedure 12.363(b)(1) (2003), the trial court permitted the use of the custody evaluation psychological report which was completed and delivered to appellant’s counsel the day before the hearing. We agree and reverse.
Pursuant to section 741.30, Florida Statutes (2003), the trial court held a hearing on the temporary injunction for protection against domestic violence issued against appellee and considered the issue of custody of the children of the parties. Two months before the hearing a custody evaluator was appointed. On Sunday, the day before the hearing, which had been continued twice, the report was completed and delivered to the parties’ attorneys. The report was thirty-five pages single-spaced and recommended that the children be removed from appellant’s custody due to the severe alienation of the children by their mother (appellant) from their father. Finding that the circumstances amounted to an emergency, the trial court, over the repeated objections of appellant that she needed more time to prepare, permitted the testimony of the psychologist, which was based upon the report.
We find that the circumstances of this case do not rise to the level of the extraordinary circumstances required to find a true emergency as held in Stanley-Baker v. Baker, 789 So. 2d 353, 355 (Fla. 4th DCA 2001). Thus, the trial court’s decision to permit the testimony of the psychologist that was based upon her report, which was received by appellant the day before the hearing, was an abuse of discretion and deprived appellant of procedural due process. See Crifaci v. Crifaci, 626 So. 2d 287, 288 (Fla. 4th DCA 1993).
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
GUNTHER, TAYLOR and HAZOURI, JJ., concur.
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Citator
Cited By
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Schmitz v. Schmitz, 950 So. 2d 462 (Fla. 4th DCA 2007)…trial court did not abuse its discretion in awarding the wife only a portion of her attorney’s fees, in computing the award of attorney’s fees to the husband, and in denying the wife appellate attorney’s fees following remand in Schmitz v. Schmitz, 890 So. 2d 1248 (Fla. 4th DCA 2005), we affirm as to those issues. STEVENSON, C.J., and WARNER, J., concur.…
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Sacks v. Sacks, 991 So. 2d 922 (Fla. 5th DCA 2008)…eceive the report within a reasonable period of time prior to trial so that each can properly evaluate the report, undertake discovery, where appropriate, and have an adequate opportunity for preparation of rebuttal evidence. See Schmitz v. Schmitz, 890 So. 2d 1248 (Fla. 4th DCA 2005); Robinson v. Robinson, 713 So. 2d 437 (Fla. 2d DCA 1998); Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996); Crifaci v. Crifaci, 626 So. 2d 287 (Fla. 4th DCA 1993); Fredricks v. Fredricks, 575 So. 2d 808 (Fla. 4th DCA 1991); C…
Authorities Cited
- Stanley-Baker v. Baker, 789 So. 2d 353 (Fla. 4th DCA 2001)
- Crifaci v. Crifaci, 626 So. 2d 287 (Fla. 4th DCA 1993)