STEVEN NIEDERKORN, APPELLANT,
v.
MELISSA TRIVINO, APPELLEE
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Steven Niederkorn appealed the denial of his petition for an injunction for protection against dating violence. The trial court denied his petition after an evidentiary hearing in which Niederkorn was not permitted to cross-examine the opposing party's witnesses, violating his right to a full evidentiary hearing. The appellate court reversed and remanded for a new hearing with proper procedures.
A petitioner in a dating violence injunction proceeding is entitled to a full evidentiary hearing that includes direct examination of witnesses, cross-examination of witnesses, and presentation of other evidence. The trial court's failure to permit cross-examination violated Niederkorn's fundamental due process rights.
[1] A party seeking an injunction for protection against dating violence is entitled to a full evidentiary hearing, which includes the right to cross-examine witnesses.
[2] Denying a party the opportunity to cross-examine witnesses during an evidentiary hearing for an injunction against dating violence violates fundamental due process.
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“Mr. Niederkorn was entitled to a full evidentiary hearing which includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. He was denied that right.”
Establishes the core holding that cross-examination is a mandatory procedural component of dating violence protection order hearings.
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Join FLexlaw to unlock all legal intelligenceBoth Niederkorn and Trivino filed petitions for protection against dating violence arising from the same incident. At the evidentiary hearing, Niederk…
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Mr. Steven Niederkorn timely appeals the denial of his petition for injunction for protection against dating violence. Both he and the Appellee, Melissa Trivino, filed petitions for protection against dating violence arising out of the same incident. At the trial on the merits of both parties’ claims, Mr. Niederkorn advised the court that he had no objection to the entry of Ms. Trivino’s injunction against him. Ms. Trivino, however, objected to an injunction being entered against her, and the case proceeded to an evidentiary hearing.
During the hearing, Mr. Niederkorn testified as to the events that occurred. The court then asked Ms. Trivino if she had any questions for Mr. Niederkorn. She had no substantive questions for him. The court then called Ms. Trivino as a witness and examined her as to the events that had occurred and did not permit Mr. Nied-erkorn to cross-examine her. The court then called Ms. Trivino’s sister to testify as to the events that occurred and again did not permit Mr. Niederkorn to cross-examine the witness. After the testimony of Ms. Trivino’s sister, the court denied Mr. Niederkorn’s injunction. It is from that order that Mr. Niederkorn appeals.
This court has dealt with this subject in the past. We recognize that trial courts are pressed for time and that typically on a domestic violence hearing day there are *992numerous hearings that need to be heard. As a result, trial courts tend to move them along quickly and expeditiously and sometimes by doing so deny litigants fundamental due process.
In this case, Mr. Niederkorn was entitled to a full evidentiary hearing which includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. He was denied that right. See Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007); see also Pope v. Pope, 901 So.2d 352 (Fla. 1st DCA 2005). The final judgment denying Mr. Niederkorn’s petition for protection against dating violence is reversed, and the case is remanded for a full eviden-tiary hearing in accordance with section 741.30(5)(c), Florida Statutes.
REVERSED and REMANDED for full evidentiary hearing.
TORPY, EVANDER and JACOBUS, JJ., concur.
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Citator
Cited By
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McNULTY v. Douglas, 111 So. 3d 231 (Fla. 2d DCA 2013)…violence. See Tejeda-Soto v. Raimondi, 968 So. 2d 635, 636 (Fla. 2d DCA 2007). A full evidentiary hearing “includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence.” Niederkorn v. Trivino, 68 So. 3d 991, 992 (Fla. 5th DCA 2011). To satisfy due process at an injunction hearing ‘“the parties must have an opportunity to prove or disprove the allegations made in the complaint. All witnesses should be sworn, each party should be permitted to call witne…
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Putzig v. Bresk, 183 So. 3d 1046 (Fla. 4th DCA 2015)…nce. § 784.046(6)(c), Fla. Stat. (2014). “A full evidentiary hearing ‘includes direct examination -of witnesses, cross-examination of witnesses, and the presentation of any other evidence.’ ” McNulty, 111 So. 3d at 233 (quoting Niederkom v. Trivino, 68 So. 3d 991, 992 (Fla. 5th DCA 2011)). Accordingly, a trial court abuses its discretion when it denies parties to a petition for a dating violence injunction the opportunity to call witnesses, present evidence, or cross-examine witnesses. Id. Here, the transcr…
Authorities Cited
- Ohrn v. Ashlee Jewel Wright, 963 So. 2d 298 (Fla. 5th DCA 2007)
- Pope v. Pope, 901 So. 2d 352 (Fla. 1st DCA 2005)