Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What happens if a party does not show up to a hearing in his or her Florida family law case if the party’s appearance is required? Since the testimony and evidence of the party who does show up may be unopposed, the Court can order relief against the missing party that may not be favorable. This happened in the case Barrett v. Busser, 2D19-1744 (Fla. 1st DCA August 7, 2020).
The alleged victim sought an injunction for protection against domestic violence. A hearing was initially scheduled for July 2018. The accused sought a continuance of the July hearing, so it was reset for October 2018. From that date, the case was again continued, this time to January 2019. The accused’s lawyer could not attend the January 2019, so another attorney appeared in his place. At that time, the case was set for final hearing for April 2019. The original attorney appeared at the April hearing without the accused under the mistaken belief that the hearing was a status conference at which the accused would not be required to be present. As a result, the court entered a 10-year permanent injunction against the accused despite his attorney’s request for a continuance.
The attorney filed a motion for reconsideration and rehearing, swearing that he mistakenly placed the hearing on his personal calendar as a status conference because the case had been previously set several times for a status conference due to a pending affiliated criminal case. The trial court denied the motion for rehearing, and an appeal was taken. Reviewing the trial court’s denial of the motion for rehearing under an abuse of discretion standard, the appellate court sided with the accused, holding the calendaring error claimed by the accused’s lawyer is the type of excusable neglect contemplated by the Florida Rule of Civil Procedure 1.540 which allows a party to set aside a judgment for mistake, inadvertence or excusable neglect. The court held “Here, '[the accused’s] counsel explained in his sworn motion for rehearing the circumstances that led to his error in calendaring the April 16, 2019, final hearing as a status hearing at which [the accused] need not appear. Because the motion set forth a colorable claim that excusable neglect occurred, we conclude the trial court abused its discretion in denying his motion without a hearing.”
Schedule a consultation with a Miami family law attorney to go over your case.