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Samanka v. Brookhouser

District Court of Appeal of Florida, Second District
Apr 15, 2005
899 So. 2d 1190 (Fla. Dist. Ct. App. 2005)

Summary

finding daughter's due process rights were violated when injunction was modified without a hearing

Summary of this case from Smith v. Smith

Opinion

No. 2D04-2603.

April 15, 2005.

Appeal from the Circuit Court, Pasco County, Linda H. Babb, J.

Jack D. Hoogewind, Dade City, for Appellant.

Russell K. Peavyhouse of Peavyhouse Opp, P.A., Plant City, for Appellee.


Sandra Samanka appeals from the Final Judgment of Injunction For Protection Against Domestic Violence which extends and modifies an existing injunction. She argues that the trial court denied her due process by modifying the injunction without a hearing. We agree and reverse.

On April 11, 2002, Rose Marie Brookhouser petitioned the court for a temporary domestic violence injunction against her daughter, Sandra Samanka. The trial court granted the petition the same day and scheduled an evidentiary hearing on the petition. Following that hearing, the trial court entered a permanent injunction on May 14, 2002, which was to remain in effect for two years.

We note that the trial court need not have set a date for the permanent injunction to expire. Section 741.30(6)(b), Florida Statutes (2001), states that permanent injunctions shall remain in effect until modified or dissolved. See Patterson v. Simonik, 709 So.2d 189, 191 n. 1 (Fla. 3d DCA 1998). However, the expiration date was not challenged at the time the injunction was entered, and therefore remained in effect.

Almost two years later, when the injunction was about to expire, Brookhouser filed a motion requesting that the injunction be extended. Without holding a hearing, the trial court granted the motion and entered an order captioned "(2nd Modification) Final Judgment of Injunction For Protection Against Domestic Violence Without Minor Children (After Notice)." This order extended the injunction indefinitely and amended some of its terms.

When Samanka was served with the modified injunction, she wrote to the trial judge explaining that after she received the motion for modification she expected to be notified of a court date, but no hearing was set. She claimed that there was no basis to extend the injunction and requested a hearing. The trial court denied Samanka's request. This was error.

A nonmoving party must be afforded a hearing before an injunction may be amended. Mayotte v. Mayotte, 753 So.2d 609 (Fla. 5th DCA 2000); Brooks v. Barrett, 694 So.2d 38 (Fla. 1st DCA 1997). In this case, the trial court based the modified injunction entirely on the allegations in the motion. Samanka was not given an opportunity to challenge those allegations. Because Samanka has not had her "day in court," she was denied due process. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.


Summaries of

Samanka v. Brookhouser

District Court of Appeal of Florida, Second District
Apr 15, 2005
899 So. 2d 1190 (Fla. Dist. Ct. App. 2005)

finding daughter's due process rights were violated when injunction was modified without a hearing

Summary of this case from Smith v. Smith

concluding that respondent daughter's due process rights were violated when trial court extended and modified permanent injunction for protection against domestic violence, where challenged ruling was based entirely on mere allegations contained in petitioner mother's motion for extension of injunction

Summary of this case from Achurra v. Achurra

reversing order extending and modifying an existing injunction against appellant for protection against domestic violence where appellant was not given an opportunity to challenge the allegations against her; concluding that since appellant did not have her "day in court," she was denied due process

Summary of this case from Porvaznik ex rel. E.M.P. v. Porvaznik ex rel. R.M.P.
Case details for

Samanka v. Brookhouser

Case Details

Full title:Sandra SAMANKA, Appellant, v. Rose Marie BROOKHOUSER, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Apr 15, 2005

Citations

899 So. 2d 1190 (Fla. Dist. Ct. App. 2005)

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