RICHARD MARK COLARUSSO, APPELLANT,
v.
LAURA MARIA LUPETIN, APPELLEE
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Appellant Colarusso sought to dissolve a permanent domestic violence injunction issued in 2005 against his ex-girlfriend. The trial court summarily denied his motion, but the appellate court reversed, holding that the appellant was entitled to an evidentiary hearing to present evidence on whether the injunction should be dissolved.
The trial court's summary denial of appellant's motion to dissolve the injunction violated due process requirements. Even if a movant must allege a change in circumstances, where the motion alleges facts sufficient to state such a change, the trial court must afford the movant a meaningful opportunity to be heard rather than summarily denying the motion.
[1] A trial court's summary denial of a motion to dissolve a permanent domestic violence injunction violates due process requirements.
[2] A motion to vacate or modify a domestic violence injunction may be legally sufficient if it alleges a change in circumstances, such as the injunction having served its pu…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court should have afforded appellant a meaningful opportunity to be heard rather than summarily denying his motion”
Establishes that summary denial without hearing violates due process when the motion alleges sufficient grounds
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Join FLexlaw to unlock all legal intelligenceA permanent injunction for domestic violence was entered in January 2005 in favor of appellant's then girlfriend. Appellant filed a motion to dissolve…
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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 violence injunction should be vacated or modified. Some cases seem to require the movant to allege and prove a change in circumstances. See Knight v. Waters, 786 So.2d 1289 (Fla. 1st DCA 2001) (affirming order denying a motion to modify or dissolve a protective injunction under section 784.046 because the motion did not assert a change in circumstances); Simonik v. Patterson, 752 So.2d 692, 693 (Fla. 3d DCA 2000) (“In the absence of evidence that the circumstances have changed, we find no abuse of discretion in the denial of the motion to modify.”). However, other cases have focused on the “at any time” language in the statutory text, finding that the trial court should have held an evidentiary hearing 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).
Here, the court gave no reasons for its summary denial. Even assuming that appellant was required to allege a change in circumstances in order to state a legally sufficient motion, appellant alleged in his motion that there was a change in circumstances because the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been incarcerated on unrelated charges; and the injunction was impacting his ability to participate in certain prison work programs. Because appellant’s motion was legally sufficient, the trial court should have afforded appellant a meaningful opportunity to be heard rather than summarily denying his motion. See Betterman, 977 So.2d at 703.
Reversed and remanded for further proceedings.
POLEN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Reyes v. Reyes, 104 So. 3d 1206 (Fla. 5th DCA 2012)…required. The case law on the issue of what pleading and proof is necessary in order to obtain a hearing and relief on a motion to modify or dissolve a domestic violence injunction is confused and inconsistent, as recognized in Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010), wherein the Fourth District noted: Case law has not clearly set forth the applicable legal standard for determining whether a domestic violence injunction should be vacated or modified. Some cases seem to require the movant to…
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Elur J. Raymonvil v. Sade Ferrari Lewis, 46 So. 3d 139 (Fla. 5th DCA 2010)…l court denied the motion without affording Ray-monvil the opportunity for a hearing. No reasons were given for the denial. The trial court’s summary denial of Ray-monvil’s motion violated due process requirements. See, e.g., Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010); Reed v. Reed, 816 So. 2d 1246 (Fla. 5th DCA 2002). Because Raymonvil’s motion [*140] was legally sufficient, the trial court was required to afford him a meaningful opportunity to be heard. REVERSED and REMANDED for an evident…
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McCORMICK v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010)…McCormick appealed, argu [*788] ing that he should have been 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…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simonik v. Patterson, 752 So. 2d 692 (Fla. 3d DCA 2000)
- Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008)
- Madan v. Madan, 729 So. 2d 416 (Fla. 3d DCA 1999)
- Knight v. Waters, 786 So. 2d 1289 (Fla. 1st DCA 2001)
- Blackwell v. State, 842 So. 2d 281 (Fla. 3d DCA 2003)