KATHERYN CURTIS, APPELLANT,
v.
CHRISTOPHER CURTIS, APPELLEE

Fla. 5th DCA | 2013-04-12
No. 5D12-1537
SAWAYA and EVANDER, JJ., concur.
113 So. 3d 993 Florida District Court of Appeal, Fifth District (2013) Positive Treatment
Cited by 3 cases

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Holding

The trial court erred in denying a petition for an injunction for protection against domestic violence without holding an evidentiary hearing.


Headnotes

[1] A trial court must hold an evidentiary hearing on a petition for an injunction for protection against domestic violence if the petition alleges facts demonstrating reason…

[2] Conditions of release in a criminal case do not necessarily negate a petitioner's right to seek an injunction for protection against domestic violence.

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Facts & Procedural History

Wife filed a sworn petition for a domestic violence injunction, alleging a history of violence and fear of the husband. The trial court summarily deni…

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Opinion of the Court
PALMER, J.

PALMER, J.

Katheryn Curtis (wife) appeals the trial court’s order denying her petition seeking an injunction for protection against domestic violence against Christopher Curtis (husband).1 Determining that the trial court erred in denying the petition without holding an evidentiary hearing, we reverse.

The wife filed a sworn petition seeking an injunction against the husband for protection against domestic violence. The petition contained the wife’s account of a violent physical altercation between the parties and a copy of the arrest report prepared by the police after taking the husband into custody in connection with that altercation. The petition alleged that the wife was afraid and that, if he were allowed back into the marital home, the husband would hurt her because the parties have a history of physical violence.

The trial court entered an order summarily denying the wife’s petition the day it was filed. The pre-printed form stated that the wife “failed to comply with one or more statutory requirements applicable to that petition including the following,” after which the court handwrote:

Petitioner is protected by conditions of release in Case No. 2012MM2069A — and may refile if any of those change.

The court attached a docket sheet from the husband’s pending criminal prosecution for the altercation. The sheet stated that the husband had been released on bond and listed the bond’s conditions.

The wife filed a motion for rehearing, arguing that her petition was sufficient to require either an ex parte temporary injunction or a hearing on the petition. The trial court denied the motion, ruling:

*995The petitioner cannot reasonably fear that she is in danger of becoming a victim of domestic violence when the respondent currently has conditions of release designed to protect her that are more restrictive than an injunction could provide. The respondent is being electronically monitored. Whether the petitioner has been a victim of domestic violence will in this situation be determined in the criminal case. Only one judge should set the rules of contact between these parties.

The wife argues that the trial court erred in denying her petition without first conducting a hearing. We agree.

Section 741.30(1), Florida Statutes (2011), creates a cause of action for an injunction for protection against domestic violence. To state a cause of action, the petitioner must file a sworn petition alleging either (1) reasonable cause to believe that the petitioner is in imminent danger of becoming a victim of domestic violence, or (2) that the petitioner has been a victim of domestic violence. Section 741.30(4) states that, upon the filing of the petition, “the court shall set a hearing to be held at the earliest possible time.” Similarly, rule 12.610(b)(3) of Florida’s Family Law Rules of Procedure provides that the court must set a hearing.

Here, the trial court reasoned that the wife’s petition was insufficient because it failed to establish a reasonable fear of domestic violence, since she was protected by conditions of the husband’s bond. However, the petition alleged sufficient facts that the wife had reasonable cause to believe that she was in imminent danger of becoming, and had already been, a victim of domestic violence. As such, the trial court erred in denying the wife’s petition without first conducting a hearing. See Gonzales v. Clark, 799 So.2d 451 (Fla. 5th DCA 2001); Sanchez v. State, 785 So.2d 672 (Fla. 4th DCA 2001).

The trial court also erred in concluding that the husband’s bond conditions were sufficient to fully protect the wife from domestic violence. First, the bond conditions were not the same as the conditions which can be imposed under the domestic violence injunction statute. For example, section 741.30(6)(a) authorizes a trial court to award the petitioner the exclusive use and possession of the parties’ dwelling; to enter an order of temporary support; and to order the respondent to participate in treatment, intervention, counseling services, or a batterers’ intervention program. Additionally, the protections afforded in the criminal proceeding may not be sufficient to protect the wife because, since she is not a party to that proceeding, she may not receive timely notice of any dismissal of that case or of any change in the husband’s bond conditions.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., concur.


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Citator

Cited By

  • Smith v. Manno, 138 So. 3d 1143 (Fla. 5th DCA 2014)
    …’s bond] goes away and you still feel you want an injunction you can file another one.” Smith timely appealed the final order dismissing her petition. The issue raised on appeal is not an issue of first impression in our court. In Curtis v. Curtis, 113 So. 3d 993 (Fla. 5th DCA 2013), we addressed a similar issue. [*1144] There, the trial court denied a petition for injunction for protection against domestic violence, without first holding an evidentia-ry hearing, where there was a pending criminal case again…
  • Doe v. Days (Fla. 1st DCA 2023)
    …for injunction for protection against sexual violence was reversible error when the trial court denied it because the respondent would be on probation and a no-contact order between the parties should be a provision of probation); Curtis v. Curtis, 113 So. 3d 993 (Fla. 5th DCA 2013) (holding that the trial court erred when it denied the petitioner’s petition for injunction for protection against domestic violence because the petitioner could not be in fear since the respondent’s bond conditions contained a n…

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