July 18, 2016

Bresky Law Wins Reversal of Trial Court Order Summarily Denying Petition for Injunction Against Domestic Violence Without a Hearing

July 13, 2016*

Bresky Law recently obtained reversal of a trial court order summarily denying a petition for injunction against domestic violence without a hearing.

The petitioner filed a form petition in circuit court, checking the boxes on the form indicating that she was a victim of domestic violence or had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. In the appropriate spaces on the petition form, the petitioner alleged several instances of domestic violence committed against her by the respondent and described the most recent development leading her to fear further violence.

The trial court denied the petition later the same day without holding a hearing. The trial court’s order stated that the petitioner “has failed to allege facts sufficient to support the entry of an injunction for protection against domestic violence.” The trial court also denied a motion for rehearing filed by the petitioner shortly thereafter.

We represented the petitioner on appeal. We argued that the trial court’s denial failed to satisfy the requirements of Florida law that denial of a petition for an ex parte injunction for protection against domestic violence be “by written order noting the legal grounds for denial.” We argued that Florida law required the trial court to give the petitioner the opportunity to argue her case at a full hearing when the trial court finds the allegations of the petition do not present the appearance of an immediate and present danger of domestic violence. We pointed out that a prior appellate decision under similar facts in Sanchez v. State, 785 So. 2d 672 (Fla. 4th DCA 2001) squarely supported our position.

Relying upon its decision in Sanchez, the Fourth DCA agreed with our position. The Fourth DCA reversed the trial court’s order and remanded the case to the trial court with instructions to “enter an order specifying how the petition is insufficient or conduct a hearing on the petition as provided for in section 741.30, Florida Statutes (2015), and Florida Family Law Rule of Procedure 12.610.” This favorable result allows our client to obtain the appropriate procedural treatment of her petition as required by Florida law.

* The decision is not final until disposition of any timely filed motions for rehearing.