DAVID D. LEE, APPELLANT,
v.
LYNETTE J. LEE, APPELLEE
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David Lee appealed a permanent extension of a domestic violence injunction entered against him. The appellate court reversed because the trial court failed to conduct an evidentiary hearing and applied an incorrect legal standard, requiring remand for a proper hearing on whether the petitioner had a continuing reasonable fear of imminent danger.
The trial court reversibly erred by permanently extending the injunction without conducting an evidentiary hearing and without making findings that either additional domestic violence occurred or that the petitioner had a continuing reasonable fear of imminent danger of domestic violence. To properly extend an injunction, the petitioner must establish one of these two grounds, and the respondent must be afforded an opportunity to present opposing evidence.
[1] A petitioner seeking to extend an injunction for protection against domestic violence must establish either that additional domestic violence has occurred or that, at the…
[2] A trial court must conduct an evidentiary hearing on a motion to extend an injunction for protection against domestic violence when the respondent opposes the motion.
Previewing 2 of 4 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“When moving for an extension of a preexisting injunction, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.”
Establishes the correct legal standard for extending a domestic violence injunction, distinguishing it from the initial petition standard.
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Join FLexlaw to unlock all legal intelligenceIn October 2010, Lynette Lee filed a motion to extend a preexisting injunction for protection against domestic violence against David Lee. An ex parte…
The full statement of facts, procedural history, and disposition for this case are member content.
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David D. Lee appeals an order permanently extending an injunction for protection against domestic violence entered against him for Lynette J. Lee. Because the trial court applied an incorrect legal standard and failed to conduct an eviden-tiary hearing on Ms. Lee’s motion to extend the injunction, we reverse and remand for an evidentiary hearing.
In October 2010, Ms. Lee filed a motion for extension of an injunction against Mr. Lee for protection against domestic violence. At that time, an ex parte order was entered extending the injunction on a temporary basis. A hearing was then held on the motion for extension and despite Mr. Lee’s opposition to the motion, the trial court entered an order permanently extending the injunction without hearing any evidence. Instead, the trial court reasoned that the injunction “met the requirement for it to be entered originally,” and “Ms. Lee feels that she continues to need it.”
Under section 741.30(1)(a), Florida Statutes (2010), any person “who is either a victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence,” may file a petition for an injunction for protection against domestic violence. However,
[w]hen moving for an extension of a preexisting injunction, the petitioner must establish either that additional domestic violence has occurred or that, at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.
*518 Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001). Here the trial court failed to hear any evidence or make any findings that additional domestic violence had occurred or that Ms. Lee had a “continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.” Nor did the trial court afford Mr. Lee an opportunity to be heard in opposition to the motion to extend the injunction. Accordingly, we reverse the permanent injunction and remand for an evidentiary hearing. See Pope v. Pope, 901 So.2d 352, 354 (Fla. 1st DCA 2005) (noting the due process requirements of section 741.30 and remanding for an evidentiary hearing where the trial court extended a temporary injunction without giving the respondent an opportunity to present his case).
Reversed and remanded for further proceedings.
WHATLEY and MORRIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Boyd v. State, 787 So. 2d 162 (Fla. 2d DCA 2001)
- Pope v. Pope, 901 So. 2d 352 (Fla. 1st DCA 2005)