Posted by Nydia Streets of Streets Law in Florida Domestic Violence
What happens if I do not appear at a domestic violence hearing in Florida? Depending on the circumstances, if the person who does not appear is the accused, he or she may have a domestic violence injunction entered against him or her. If the person who does not appear is the victim, the petition might be dismissed. There are circumstances, however, in which adverse action against the person who does not appear is improper. This was an issue in the case Spencer v. Kelner, 4D22-2276 (Fla. 4th DCA March 8, 2023).
The alleged victim initially sought a dating violence injunction against the accused which was dismissed. The alleged victim then filed a second petition, this time alleging cyberstalking. In his second petition, he listed the accused’s attorney as the attorney who represented him in the dating violence injunction case. Although listed, that attorney was not served with the second petition, nor was he notified of a hearing on the second petition. The petition was served at the accused’s father’s house in New York. At the time of service, the accused was on house arrest in New York, and the order served on him stated the hearing on the petition was the next day. The accused did not appear at the hearing, and the court entered a final judgment of injunction against him.
The accused’s former lawyer filed a motion to vacate the injunction, alleging excusable neglect, asserting “[The accused] mistakenly believed the second petition was part of the first petition, given that the first petition was attached to the second petition. And because [the accused] saw [the accused’s former attorney] listed as his counsel on the second petition, he likewise mistakenly believed that [the accused’s former attorney] had been served with the second petition.” The trial court denied the motion to vacate and an appeal ensued.
The appellate court held the accused was not given enough notice before the hearing: “Florida’s courts have routinely held that if service of notice is made to a party only a few days or less before an adversarial hearing on the merits, then the notice is not fair and reasonable. [. . .] While an exception to this rule exists for emergencies, no emergency existed here to justify providing Appellant with only twenty-four hours’ notice of the hearing.
The court concluded “Rather, the circumstances indicate that Appellant was justifiably confused given the situation. Part of this confusion was the result of Appellee’s own mistake in listing [the former attorney] as Appellant’s attorney in the second petition, yet neither serving [the former attorney] with that petition nor with the notice of hearing. Moreover, the second petition had a copy of the first petition attached to it, further providing Appellant with a basis to believe that [the former attorney], his attorney in the first action, would have notice of the second action. Under the circumstances set forth above, Appellant was denied reasonable notice of the hearing, and his failure to attend or request a continuance constituted excusable neglect under rule 12.540(b). However, we clarify that this opinion does not invite a defendant to ‘sit on his hands, see what happens, and then decide he wants to defend.’ Nor are we concluding that a short period of notice, standing alone, is always sufficient to constitute a due process violation. Generally, the absent party must make some effort to seek a continuance or otherwise inform the trial court of the party’s inability to attend the hearing and properly present his or her case.”
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