Summary
In Reed, the Fifth District reversed a summary denial of a motion to vacate an injunction three days after the motion had been filed.
Summary of this case from Betterman v. KukelhanOpinion
No. 5D01-2304.
May 31, 2002.
Appeal from the Circuit Court, Osceola County, Roger J. McDonald, J.
Shannon McLin Carlyle of The Carlyle Appellate Law Firm, Leesburg, for Appellant.
Jo Marie Reed, Staten Island, NY, pro se.
George Hopp Reed appeals the trial court's denial of his "Motion to Vacate Final Judgment of Injunction for Protection Against Domestic Violence." The judgment was entered on December 29, 1998 while Reed and his wife, both New York residents, were vacationing in Florida.
Reed filed his verified motion on June 29, 2001 and the trial court denied the motion on July 2, 2001 without a hearing. This short period did not allow Reed enough time for service of his motion on his wife; nor was there enough time to allow Reed to schedule a hearing on the matter.
The 1998 judgment advises that either party to the injunction may ask the court to change or end the injunction at any time. That provision conforms to section 741.30, Florida Statutes, which also prescribes that privilege.
Due process requires that Reed be given the opportunity to be heard on his request and that his motion should not be summarily disposed of within three days after it is filed. We express no opinion on the merits of Reed's motion.
The order denying the motion to dissolve the injunction is vacated and we remand in order to allow Reed to obtain service of his motion on his wife and to allow him to schedule an evidentiary hearing on the motion.
VACATED; REMANDED.
GRIFFIN and PLEUS, JJ., concur.