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Constitutional Due Process Protections and Your Florida Domestic Violence Case

court_hearingA South Florida man made a significant mistake when he arrived at court for a hearing in September 2014. He assumed “this was simple.” He didn’t hire a lawyer, and his wife did. When he left court, he had an injunction for protection against domestic violence entered against him, even though he had received less than three business days’ notice that his wife would accuse him of physical abuse at the hearing. When the husband did hire a lawyer to represent him on appeal, he got the injunction overturned by the Fourth District Court of Appeal because the short notice he received violated his due process rights. The man’s case is a stern reminder to assume nothing about any court hearing, always take them seriously, and take every step available to protect yourself, including hiring counsel.

The case arose from the troubled marriage of Palm Beach County couple M.V. (husband) and K.V. (wife). The wife went to court in the summer of 2014, seeking a protective injunction. She accused her husband of both stalking her and destroying her personal property. The trial judge declined to issue the injunction, concluding that the assertions the wife made were not enough to meet the legal requirements for issuing a protective injunction. The judge told the wife, however, that she could supplement her allegations with additional evidence to meet the legal standards. The court scheduled another hearing for Wednesday of the next week.

A day after her setback (and seven days before the subsequent court date), the wife filed a supplemental affidavit in her case. This supplement claimed, for the first time, that the husband had physically abused her. Based on this, the trial court issued a temporary injunction on the following day, six days before the scheduled hearing. There was no proof that the husband received notice of the wife’s supplemental claims, only that he received notice of the temporary injunction.

At the hearing, the wife had an attorney, and the husband did not. The wife, through her lawyer, put on evidence about the husband’s physical abuse. The husband, when it was his turn, simply told the court that he’d only received notice of the hearing on the previous Friday and asked that the hearing be postponed. The trial judge refused because the hearing was already underway. The husband indicated that he had evidence that would refute the wife’s claims of physical abuse, but he did not bring it to court because he was unaware that he’d face the accusations the wife had made and, therefore, didn’t think he’d need it. “I didn’t know she was going to come up with all this stuff she’s coming with. I thought this was simple. I didn’t really prepare for this,” the helpless husband told the judge.

The trial court issued the injunction of protection, and the husband appealed. This time, the husband wisely hired an attorney to represent him in the appeal. The husband’s appeal was successful because the way the case proceeded through the trial court violated the husband’s due process rights. One aspect of due process that exists in domestic violence cases like this is that the accused person’s due process rights are violated if he does not receive any notice of the claims against him or doesn’t receive notice far enough in advance of the hearing to mount a proper defense. In a 2007 case, Storm v. Decker, the Fifth DCA decided that three business days was not enough notice to satisfy the due process requirement. In this case, he had less than three days because he received notice on Friday, August 29, and his hearing was on Wednesday, September 3, with a holiday (Labor Day) falling on the Monday between those dates.

A famous author and motivational speaker once said, “Expect the best. Prepare for the worst.” In your domestic violence injunction or other family law case, it can be a little like that. Expect a fair and just outcome, but take the necessary preparations to make sure that you get that fair and just outcome. Talk to, and retain, an attorney experienced in dealing with these issues and litigating these kinds of cases. The diligent South Florida domestic violence injunction attorneys at Sandy T. Fox, P.A. have the knowledge, skill, and determination to provide you with the representation you need to protect your rights. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Florida Appeals Court Tosses Out Contempt Order Due to Violation of Husband’s Due Process Rights, Fort Lauderdale Divorce Lawyer Blog, April 13, 2016

Making Sure You Get a Fair Opportunity to Present Your Case in Your Florida Divorce, Fort Lauderdale Divorce Lawyer Blog, March 3, 2016