ROBERT BETTERMAN, APPELLANT,
v.
TERESA KUKELHAN, APPELLEE
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A former boyfriend appeals the summary denial of his motion to vacate a domestic violence injunction. The court reverses, holding that due process requires the trial court to hold a hearing and allow the movant to present evidence before denying a motion to dissolve a domestic violence injunction.
A trial court must hold a hearing and allow the movant to present evidence before denying a motion to modify or dissolve a domestic violence injunction under section 741.30(6)(c), Florida Statutes, as summary denial without such opportunity violates due process requirements.
[1] A trial court errs by summarily denying a motion to vacate an injunction for protection against domestic violence without a hearing or an opportunity for the movant to be…
[2] Florida Statutes section 741.30(6)(c) permits a motion to modify or dissolve an injunction for protection against domestic violence at any time.
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Join FLexlaw to unlock all legal intelligence“the "short period did not allow ... enough time for ... a hearing on the matter."”
Establishes that summary denial without adequate time for hearing violates due process
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Join FLexlaw to unlock all legal intelligenceA former girlfriend filed a petition for a domestic violence injunction against her former boyfriend. At the final hearing before Judge Goldenberg, an…
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MAY, J.
A former boyfriend appeals an order denying his motion to vacate an injunction for protection against domestic violence. He argues the trial court erred in denying his motion without a hearing and an opportunity to be heard. We agree and reverse.
A former girlfriend filed the petition for an injunction against the former boyfriend. Judge Dijols denied a temporary injunction. The former boyfriend then submitted a general denial of the allegations and the matter was set for hearing.
Judge Goldenberg presided at the final hearing where an “Agreed Final Judgment of Injunction For Protection Against Domestic Violence” was entered for an indefinite period of time. The order specifically stated that the former boyfriend denied the allegations, but did not object to the issuance of the injunction. The court made no factual findings.
Approximately a month later, the former boyfriend filed a verified petition to dissolve the injunction with a cover letter to Judge Dijols. He continued to deny the allegations and explained that, at the time of the hearing, he thought it was easier to simply agree to the injunction. He did not realize, however, that he would be required to surrender his concealed weapons permit. He requested the court either dissolve the injunction or allow him to retain the permit. Judge Dijols denied the motion without a hearing.
The former boyfriend’s lawyer then filed another motion with Judge Goldenberg, who had actually entered the final judgment, with a letter explaining that Judge Dijols may have denied the original motion simply because he had not been the one to enter the final judgment. This motion requested the same relief and alternatively asked for an evidentiary hearing. Judge Goldenberg’s judicial assistant returned the letter and motion with a memorandum explaining that the original motion had been denied by Judge Dijols.
Here, the former boyfriend argues that section 741.30(6)(c), Florida Statutes (2007), provides for a motion to modify or dissolve an injunction at any time. He argues that Florida case law supports his position that the summary denial of a motion to vacate violates due process requirements. See Reed v. Reed, 816 So. 2d 1246 (Fla. 5th DCA 2002); Madan v. Madan, 729 So. 2d 416 (Fla. 3d DCA 1999). We agree.
In Reed, the Fifth District reversed a summary denial of a motion to vacate an injunction three days after the motion had been filed. The court stated that the “short period did not allow ... enough time for ... a hearing on the matter.” 816 So. 2d at 1247. In Madan, the Third District reversed a trial court’s summary denial of a motion to set aside a domestic violence injunction. Relying on section 741.30(6)(b), the court held that the “trial court should have allowed the [movant] to present evidence regarding the initial procurement of the injunction.” 729 So. 2d at 416.
Based on these authorities and the particular facts of this case, we reverse the order denying the motion to dissolve the injunction and remand the case to the trial court for proceedings consistent with this opinion.
Reversed and remanded.
STONE and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010)…WARNER, J. The trial court summarily denied appellant’s motion to dissolve a permanent injunction for domestic violence entered in January 2005 in favor of his then girlfriend. We reverse on the authority of Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008), in which we held that the summary denial of a motion to vacate a protective injunction violated due process requirements. Case law has not clearly set forth the applicable legal standard for determining whether a domestic viol…
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Reyes v. Reyes, 104 So. 3d 1206 (Fla. 5th DCA 2012)…ng to allow the movant to present evidence regarding the initial procurement of the injunction. See York v. McCarron, 842 So. 2d 281 (Fla. 1st DCA 2003); Madan v. Madan, 729 So. 2d 416 (Fla. 3d DCA 1999). Id. at 239. See also Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008). We hold that, for a movant to be entitled to obtain relief on a motion to modify or dissolve a domestic violence injunction, the movant must prove a change in circumstances. Accord Alkhoury v. Alkhoury, 54 So. 3d 641 (Fla. 1st D…
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McCORMICK v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010)…en given an evidentiary hearing on his motion. Due process requires a trial court to give a person moving to vacate an injunction a meaningful opportunity to be heard. Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010); Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008); Reed v. Reed, 816 So. 2d 1246 (Fla. 5th DCA 2002); Madan v. Madan, 729 So. 2d 416 (Fla. 3d DCA 1999). Because the trial court erred in summarily denying Mr. McCormick’s motion, we reverse the order on appeal and remand for furth…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reed v. Reed, 816 So. 2d 1246 (Fla. 5th DCA 2002)
- Madan v. Madan, 729 So. 2d 416 (Fla. 3d DCA 1999)