ROBERT T. POTCHEN, APPELLANT,
v.
ALICE POTCHEN, APPELLEE
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Florida appellate court reversed and remanded a domestic violence injunction modification order because the trial court denied the incarcerated appellant due process by failing to rule on his request to appear telephonically at the hearing.
An incarcerated party in a civil matter has a due process right to be heard telephonically when he requests such appearance and cannot physically attend, and the trial court must rule on such requests.
[1] An incarcerated party in a civil proceeding has a due process right to be heard telephonically when he requests such appearance and cannot physically attend, and the tria…
Previewing 1 of 1 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“An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically.”
Citing Garrett v. Pratt, 128 So. 3d 928, 928 (Fla. 5th DCA 2013), establishing the foundational right of incarcerated parties in civil proceedings.
Robert Potchen, incarcerated, appealed an order modifying a permanent domestic violence injunction that allowed his wife Alice to enter the marital ho…
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In this domestic violence injunction case, Robert Potchen appeals an order modifying a permanent injunction to allow his wife to enter the marital home and retrieve her possessions. Although the order seems appropriate, Appellant is correct that he was denied due process when the lower court failed to act on his request to appear by telephone from prison. See, *179 e.g., Garrett v. Pratt, 128 So.3d 928, 928 (Fla. 5th DCA 2013) (“An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.”); Johnson v. Johnson, 992 So.2d 399, 401-02 (Fla. 1st DCA 2008) (“When a party is incarcerated and cannot physically appear in a civil matter, the trial court normally should grant a request to hold necessary hearings by telephone, pursuant to the procedure outlined in Florida Rule of Judicial Administration 2.071 [now 2.530], as an alternative to requiring that the inmate be transported to the hearing by the state.” (quoting Johnson v. Johnson, 783 So.2d 326, 327 (Fla. 1st DCA 2001))); see also Samanka v. Brookhouser, 899 So.2d 1190, 1191 (Fla. 2d DCA 2005) (“A nonmoving party must be afforded a hearing before an injunction may be amended;”). As such, we reverse and remand with directions that Appellant be given an opportunity to be heard on the motion.
REVERSED AND REMANDED WITH DIRECTIONS.
LAWSON, C.J., LAMBERT and EDWARDS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Johnson v. Shakira Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008)
- Johnson v. Johnson, 783 So. 2d 326 (Fla. 1st DCA 2001)
- Samanka v. Brookhouser, 899 So. 2d 1190 (Fla. 2d DCA 2005)
- Garrett v. Pratt, 128 So. 3d 928 (Fla. 5th DCA 2013)