Posted by Nydia Streets of Streets Law in Florida Domestic Violence
Due process in Florida domestic violence cases is a requirement in order for an injunction to survive appellate scrutiny. One example of due process is the rule that a party must be on notice about what he or she should defend against at a hearing. So in a domestic violence case, a party filing a petition must be specific about the alleged incidents of violence and cannot bring up new incidents at the hearing that were not mentioned in the petition. This type of “ambush” litigation was at issue in the case J.G.G. v. M.S., 5D19-3483 (Fla. 5th DCA July 2, 2020).
In her petition for injunction against domestic violence, the wife stated two incidents in which the husband was allegedly violent toward her. At the hearing on the petition, the wife testified to these two incidents plus two other alleged incidents not mentioned in her petition. The husband objected on the basis that he had no notice that he needed to prepare a defense against the two new incidents. Nonetheless, the court entered an injunction against the husband and the husband appealed.
The appellate court agreed with the husband and reversed the entry of the injunction. The court held “Here, the petition alleged two specific allegations of domestic violence, but did not include the other two events that Wife described at the hearing. The trial court erred in admitting evidence of the two unpled allegations raised for the first time at the hearing. These were two new material allegations of domestic violence, and their admission deprived Husband of his right to due process as he was given neither proper notice of these fresh allegations, nor a full and fair opportunity to prepare to rebut them.” The Court went on to note “When the trial court admits improper evidence over objection, it must expressly state on the record that it did not rely on the erroneously admitted evidence in making its final determination. If it does not, the appellate court may not presume the improper evidence was disregarded. Wife, as the beneficiary of any error, has the burden to establish that the trial court did not consider or rely on improperly admitted evidence in granting the petition and issuing the permanent injunction. Wife has not met this burden.”
The entry of a domestic violence injunction in Florida requires examination of very specific factors. Schedule a consultation with a Miami domestic violence lawyer to understand how the law may apply to your case.