Posted by Nydia Streets of Streets Law in Florida Domestic Violence
Notice of hearings on domestic violence injunctions in Florida are usually given approximately one to two weeks prior to the hearing date. This leaves little time for parties to rearrange schedules as necessary to appear at a hearing. What happens if a hearing goes forward even though one party files a motion for continuance? This was an issue in the case McPherson v. Samuel, 4D2023-2613 (Fla. 4th DCA July 24, 2024).
A petition for injunction against stalking was filed, and a temporary injunction was put in place ex parte pending a hearing on the petition. The accused filed a motion for continuance, indicating she would be out of the country until the day after the scheduled hearing date. The motion was denied. The hearing on the petition went forward and the accused did not appear. An injunction was entered, which the accused tried to set aside again based on her inability to appear at the hearing. Her motion to set aside the injunction was denied, and she appealed.
The appellate court first noted “We look at three factors when assessing denial of a continuance motion: whether the denial results in an injustice for the movant; whether the cause for the delay was unforeseen or whether the motion was based on dilatory tactics; and whether the opposing party would be prejudiced.” Analyzing each factor, the court found (1) there was injustice to the accused because she did not have the opportunity to defend herself; (2) the delay was not unforeseen because she was already scheduled to be out of the country before receiving notice of the hearing; and (3) there was no prejudice to the petitioner because the temporary injunction would have been in place pending a rescheduled hearing date.
Accordingly, the court held “We thus reverse the denial of the motion to continue, vacate the permanent injunction, reinstate and continue in force the temporary injunction against McPherson, and remand for a new hearing on the petition for permanent injunction.” Schedule your meeting with a Miami family law attorney to determine your rights and remedies in your case.