RANISHA BAKER, APPELLANT,
v.
CARTESSMA PUCKET, A/K/A CARTESSMA WILLIAMS, APPELLEE

Fla. 4th DCA | 2014-06-04
No. 4D13-2393
DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.
139 So. 3d 954 Florida District Court of Appeal, Fourth District (2014) Positive Treatment
Cited by 6 cases

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Synopsis

Baker appeals the trial court's summary denial of her motion to vacate a permanent domestic violence injunction entered in 2011. The Fourth District reversed, holding that Baker's allegations of no contact since 2011 and incarceration preventing work release participation were sufficient to entitle her to an evidentiary hearing on the motion.


Holding

Baker was entitled to a hearing on her motion to vacate the injunction. Her allegations that she and the appellee have had no contact since 2011 and that the injunction is preventing her prison work release participation constitute sufficient allegations of changed circumstances to require the trial court to hold an evidentiary hearing rather than summarily denying the motion.


Headnotes

[1] A party seeking to modify or dissolve a domestic violence injunction is entitled to a hearing on their motion.

[2] Summary denial of a motion to vacate an injunction without holding a hearing may violate due process.

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Key Quotes

“Either party may move at any time to modify or dissolve the injunction. No specific allegations are required.”

Establishes the statutory right to seek modification or dissolution of a domestic violence injunction at any time without threshold requirements.

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Facts & Procedural History

A permanent domestic violence injunction was entered against Baker in 2011, prohibiting her from committing acts of domestic violence against Pucket a…

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Opinion of the Court
WARNER, J.

WARNER, J.

Ranisha Baker appeals an order denying her motion to vacate a domestic violence injunction entered against her. She sought to modify a permanent injunction entered in 2011 which prohibited her from committing acts of domestic violence against appellee and from having contact with appellee. The trial court denied the motion without a hearing. We reverse.

In her motion to dissolve the injunction, appellant alleged that she and appellee have not had any contact since the injunction was entered in 2011 and that she does not plan to have any contact with appellee in the future for any purpose. She also alleged that she is currently incarcerated and is prevented from participating in a work release program due to the injunction. Based upon these allegations, she was entitled to a hearing on her motion.

A permanent injunction for protection against domestic violence may be granted either for a fixed period of time or until further order of the court. See § 741.30(6)(c), Fla. Stat. (2013); Fla. Fam. L. R. P. 12.610(c)(4)(B). “Either party may move at any time to modify or dissolve the injunction. No specific allegations are required.” § 741.30(6)(c), Fla. Stat. (2013); see also Fla. Fam. L. R. P. 12.610(c)(6). A trial court’s summary denial of a motion to vacate an injunction without holding a hearing may violate due process. Betterman v. Kukelhan, 977 So.2d 702, 703 (Fla. 4th DCA 2008).

In Colarusso v. Lupetin, 28 So.3d 238 (Fla. 4th DCA 2010), we 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 allege and prove a change in circumstances .... 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.

Id at 239 (citations omitted). In Colarus-so, we found that the appellant had sufficiently alleged a change in circumstances by alleging “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.” Id Accordingly, we reversed, finding, “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.” Id (citing *956 Betterman, 977 So.2d at 703). Appellant’s allegations here track the allegations in Colarusso that we found sufficient to require a hearing on the motion.

Although we reverse for a hearing, we note that, based on the current appellate record, appellant has not yet perfected service on appellee. See Fla. Fam. L. R. P. 12.610(c)(6) (governing service of motions to vacate injunctions); see also Shakes v. Whitelocke, 922 So.2d 1076, 1077 (Fla. 5th DCA 2006) (trial court erred by amending injunction ex parte, without prior notice to the petitioner who had originally obtained the order). On remand, appellant should have the opportunity to perfect service and thereafter schedule an evidentiary hearing. See, e.g., Reed v. Reed, 816 So.2d 1246, 1247 (Fla. 5th DCA 2002) (summary denial of motion to vacate injunction before service was perfected on appellant’s wife, the petitioner who obtained the injunction, was error; appellant should be allowed to obtain service of motion on wife and schedule an evidentiary hearing).

For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.


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Citator

Cited By

  • Carrozza v. Stowers, 153 So. 3d 340 (Fla. 2d DCA 2014)
    …intention to contact her in the future except regarding “matters relating to the health and welfare of the parties’ daughter,” and stated that the injunction is preventing him from participating in certain prison work programs. See Baker v. Pucket, 139 So. 3d 954, 955 (Fla. 4th DCA 2014) (“[W]e [previously] found that the appellant had sufficiently alleged a change in circumstances by alleging ‘the injunction has served its purpose; he had not attempted to contact his ex-girlfriend for years; he has been inc…
  • Champion v. Zuilkowski, 182 So. 3d 689 (Fla. 5th DCA 2015)
    …. His former girlfriend, Emma Ziulkowski,1 did not file an answer brief, because Champion sufficiently alleged changed circumstances, we reverse and remand for an evidentiary hearing upon proper service of process on Ziulkowski. See Baker v. Pucket, 139 So. 3d 954, 956 (Fla. 4th DCA 2014). REVERSED AND REMANDED. LAWSON, C.J., COHEN and ' BERGER, JJ., concur. . She spells her last name differently than it is spelled in the case style and the pleadings below.…
  • Palm v. Palm, 214 So. 3d 792 (Fla. 5th DCA 2017)
    …otection against domestic violence. Palm argues that the trial court erred in summarily denying the petition and that the trial court should have held a hearing. We agree. See Reed v. Reed, 816 So. 2d 1246, 1247 (Fla. 5th DCA 2002); Baker v. Pucket, 139 So. 3d 954, 955-56 (Fla. 4th DCA 2014); Carrozza v. Stowers, 153 So. 3d 340, 341 (Fla. 2d DCA 2014). Thus, we reverse [*793] the order under review and remand with instructions for the trial court to hold a hearing on Palm’s petition. REVERSED and REMANDED.…

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