INJUNCTIONS: PROCEDURES AND LEGAL STANDARDS FOR PROTECTION AGAINST DOMESTIC VIOLENCE OR REPEAT VIOLENCE

TABLE OF CONTENTS

1. TABLE OF CONTENTS
2. INTRODUCTION
3. PROCEDURES
   1. Family Law Rules of Procedure
      1. Domestic Violence
      2. Repeat Violence
   2. Injunctions
      1. Temporary Injunctions
      2. Permanent Injunctions
4. LEGAL STANDARDS
   1. Florida Statutory Law
      1. Domestic Violence
      2. Repeat Violence
   2. Florida Case Law
      1. Temporary Injunctions
      2. Permanent Injunctions
5. TERMINOLOGY
   1. Notice
   2. Imminent Danger

II. INTRODUCTION

An injunction is a discretionary equitable remedy, "[p]rimarily preventive in nature, which is designed to protect one from irreparable injury" by commanding acts to be done or prohibiting their commission.^[1] Its object then is to preserve an existing state or condition, and to afford relief against future acts that are against equity an good conscience.^[2] Injunctions may be classified as prohibitory (preventive) and mandatory. The prohibitory or preventive injunction operates to restrain the commission or continuance of an act and to prevent a threatened injury, while the mandatory injunction is affirmative in character and generally requires "[p]ositive action by the person against whom it is directed."^[3] Injunctions may also be classified according to the duration of the restraint, for the relief given may be either temporary or final. The significance of the distinction lies in the fact that, absent a waiver, "[a] final decree of injunction cannot issue without notice and a hearing accorded to the party affected.^[4] Likewise, there are circumstances in which interlocutory injunctive relief may lie without notice and a hearing having been accorded to the defendant. A "[p]arty is not required to prove his case in full at a preliminary-injunction hearing, and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits."^[5]

Courts of equity have the "[I]nherent power in proper cases, to grant injunctions where necessary to prevent defeat of a court order."^[6] An injunction may be granted during pendency of an action for dissolution or in the final judgment.^[7] It may even be granted after entry of a final judgment or during the pendency of an appeal.^[8] In cases of temporary injunctions, they may be issued without notice in accordance with the Florida Rules of Civil Procedure. Rule 1.610 specifies the requirements for issuance of an injunction, however, the question of whether it should have been issued without notice is "[I]mmaterial where presented on appeal from a final judgment of dissolution.^[9]

The discussion will focus on the procedures and legal standards of injunctions. Part III examines the Family Law Rules of Procedure in conjunction with the Florida Rules of Civil Procedure. Part IV addresses the Florida statutes that govern causes of action for an injunction for protection against domestic violence and causes of action for repeat violence. Finally, part V examines the various legal terminology of the aforementioned statutes and the cases that interpret and define the meaning.

III. PROCEDURES

A. Family Law Rules of Procedure

Rule 12.610 governs the procedure for temporary and permanent injunctions for protection against domestic violence and temporary and permanent injunctions for protection against repeat violence. All other injunctive relief sought is governed by Florida Rules of Civil procedure, which will be discussed infra. An injunction for protection against either domestic violence or repeat violence may be sought whether or not any other cause of action is pending between the parties.^[i] However, the pendency of any such cause of action must be alleged in the petition.^[ii] The relief the court may grant in a temporary or permanent injunction is codified in section 741.30(6), Florida Statutes.

1. Domestic Violence

According to Rule 12.610, any person may file a petition for an injunction for protection against domestic violence provided that they meet certain requirements under oath. The applicable position of the rule reads as follows:

(i) the party filing the injunction and the party against whom the injunction is sought are spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, or persons who have a child in common regardless of whether they have been married or have resided together at any time;

(ii) the party filing the petition was the victim of, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of an assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death perpetrated by the party against whom the injunction is south; and

(iii) the specific facts and circumstances upon the basis of which relief is sought are true.^[iii]

It is imperative to remember that these requirements must be certified under oath. If these requirements are not met, then a petition for injunction against domestic violence will be unsuccessful.

Additionally, personal service by a law enforcement agency is required. The clerk of the court must furnish a copy of the petition for injunction, financial affidavit (if support is sought), Uniform Child Custody Jurisdiction Act affidavit (if custody is sought), temporary injunction (if one has been entered), and notice of hearing to the appropriate law enforcement agent or agency.^[iv] This requirement also applies to motions to modify or vacate injunctions unless the party is not represented by an attorney. In that case, service must be in accord with Rule 12.070 or in the alternative, there must be filed in the record proof of receipt of the motion by the non moving party personally.^[v] Once the petition is filed, the court will set a hearing at the earliest possible time.

2. Repeat Violence

According to Rule 12.610(b)(1)(B), two requirements must be met for the filing of a petition for protection against repeat violence. The applicable portion of the rule reads as follows:

(i) two incidents of violence, defined as assault, battery, sexual battery, or stalking, one of which must have occurred within 6 months of the filing of the petition, have been committed by the person against whom the injunction is sought against the petitioner or the petitioner's immediate family member; and

(ii) the specific facts and circumstances upon the basis of which relief is sought are true.^[vi]

Additionally, personal service by a law enforcement agency is required along with the appropriate affidavits discussed in the preceding paragraph concerning domestic violence. Likewise, the requirements for filing the petition must be certified under oath.

B. Injunctions - Temporary and Permanent

1. Temporary

Florida Jurisprudence, Second Edition, provides that the general function of a temporary injunction is to "[p]reserve the status quo pending a final determination of the cause or until relief can be granted following a final hearing."^[vii] The status quo which will be preserved by a preliminary injunction is the "[l]ast, actual, peaceable, non-contested condition which preceded the pending controversy."^[viii] Under Rule 12.610(c)(3)(A), temporary injunctions for protection against domestic or repeat violence must be personally served unless the respondent was present at a hearing.^[ix] For example, if a temporary injunction was issued after a hearing because the respondent was present at the haring or had reasonable notice of the hearing, the injunction may be served in a manner provided for permanent injunctions.^[x]

Temporary injunctions may be effective for a fixed period not to exceed fifteen days. The relevant portion of 12.610(c)(4)(A) reads as follows:

(A) Any temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the temporary injunction and of the full hearing for good cause shown by any party, or upon its own motion for good cause, including the failure to obtain service.^[xi]

Additionally, for the injunction for protection to be issued ex parte, that is without the presence of the respondent, "[i]t must appear to the court that an immediate and present danger of domestic or repeat violence exists.^[xii] The rule further provides:

"In an ex parte hearing for the purpose of obtaining an ex parte temporary injunction, the court may limit the evidence to the verified pleadings or affidavits for a determination of whether there is an imminent danger that the petitioner will become a victim of domestic or repeat violence. If the respondent appears at the hearing or has received reasonable notice of the hearing, the court may hold a hearing on the petition."^[xiii]

Moreover, "[i]f a verified petition and affidavit are amended, the court shall consider the amendments as if originally filed."^[xiv]

2. Permanent Injunctions

In cases of permanent injunctions for protection against either domestic or repeat violence, the duration of the injunction is discretionary. The court may either grant the injunction for a fixed period or until further order of the court.^[xv] The appellate portions of the rule reads as follows:

"Any relief granted by an injunction for protection against domestic or repeat violence shall be granted for a fixed period or until further order of the court. Such relief may be granted in addition to other civil and criminal remedies."^[xvi]

Additionally, the court may extend the injunction for successive periods or until further order of the court upon petition of the victim.^[xvii] In these cases, the rule gives the court broad discretionary power to grant an extension after considering the factual circumstances.^[xviii] Moreover, attorneys must remember that Rule 12.610 mandates that a full evidentiary hearing "[m]ust be conducted" for permanent injunctions.^[xix]

IV. LEGAL STANDARDS

A. Florida Statutory Law

1.Domestic Violence

A cause of action for an injunction for protection against domestic violence has been codified by section 741.30, Florida Statutes, and a cause of action for injunctions for protection against repeat violence has been codified in 784.046, Florida Statutes. Section 741.30 gives "[a]ny person who is the victim of any act of domestic violence, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence" standing in the circuit courts to file such a sworn petition.^[xx] Additionally, the cause of action for such an injunction "[m]ay be sought whether or not any other cause of action is currently pending between the parties."^[xxi] However, the pendency of any such cause of action must be alleged in the petition.

The relief a court may grant in a temporary or permanent injunction against domestic violence is codified in section 741.30(6), Florida Statutes. The statute reads in relevant part as follows:

"Upon notice and hearing, the court may grant such relief the court deems proper, including an injunction. A temporary or final judgment on injunction for protection against domestic violence entered pursuant to this section shall, on its face, indicate that…the court had jurisdiction over the parties…, and that reasonable notice and opportunity to be heard was given to the person against whom the order is sought sufficient to protect that person's right to due process."^[xxii]

The right to a hearing is fundamental and typically, the courts may not enter an injunction or grant an extension of an injunction without providing for a hearing.

2. Repeat Violence

A cause of action for repeat violence is codified in section 784.046, Florida Statutes. Standing is granted to "[a]ny person who is the victim of repeat violence or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for repeat violence on behalf of the minor child."^[xxiii] Repeat violence is defined as "[t]wo incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition."^[xxiv] Violence is defined as "[a]ny assault, battery, sexual battery, or stalking by a person against any other person."^[xxv] Repeat violence causes of action "[m]ay be sought whether or not any other petition, complaint, or cause of action is available or pending between the parties."^[xxvi] Further, this cause of action does not "[r]equire that the petitioner be represented by an attorney."^[xxvii]

The court may grant any relief it deems proper, including injunctions. The relief is codified in 784.046(7), Florida Statutes. The statute reads in relevant part as follows:

"Upon notice and hearing, the court may grant such relief as it deems proper, including an injunction. A temporary or final judgment on injunction for protection against repeat violence entered pursuant to this section shall, on its face, indicate that…the court had jurisdiction over the parties…, and that reasonable notice and opportunity to be heard was given to the person against whom the order is sought sufficient to protect that person's right to due process."^[xxviii]

The right to notice and an opportunity to be heard bears repeating. Generally, a court may not grant an injunction without providing a full hearing. Cases involving imminent danger or irreparable injury may serve as an exception for either temporary or ex parte injunction hearings.

B. Florida Case Law

1. Temporary Injunctions

In Lucero, the mother appealed a temporary restraining order that prohibited her from moving out of state with the parties' minor child.^[xxix] Although the mother was not present at the hearing when the father's attorney made an oral motion for temporary injunction, the mother was not given an opportunity to cross-examine the father's testimony. The court decided that the mother did not "[r]eceive sufficient notice and that her due process rights had been violated."^[xxx] Further, the court decided that "[w]hen there is no affidavit or verified pleading that alleged specific facts showing immediate and irreparable injury, loss, or damage, compliance of the rule governing temporary injunctions was not followed."^[xxxi]

Additionally, in Lewis, the mother filed a petition for injunction for protection against domestic violence and a temporary injunction was issued which included a notice of hearing.^[xxxii] After the husband was served, he filed a petition for an injunction for protection against domestic violence. The trial court permitted both petitions to be heard and decided to award the wife custody of the two minor children. The appellate court reversed and decided that the husband "[w]as entitled to a full hearing and that a court may only grant temporary injunctions ex parte, pending a full hearing."^[xxxiii]

2. Permanent Injunctions

Florida case law dictates that courts must grant full evidentiary hearings and afford parties an opportunity to be heard prior to granting permanent injunctions. Specifically, in Spurgiesz, the court decided that "[p]rior to granting a permanent injunction, the trial court must afford the parties a full hearing including the opportunity to present evidence."^[xxxiv] Additionally, in Semple, the appellee filed for a permanent injunction against domestic violence against her husband and after the husband testified on direct examination, the court found his testimony to be evasive and the appellee's to be believable.^[xxxv] The appellant was not afforded an opportunity to cross-examine the appellee. The appellate court decided that "[t]he appellant was denied due process of law when the court issued a final judgment for protection against domestic violence before the appellant had an opportunity to cross-examine his accuser."^[xxxvi] Therefore, it is reversible error to grant a petition for an injunction against domestic violence where the court fails to conduct a full evidentiary hearing prior to entering a permanent injunction."^[xxxvii]

V. TERMINOLOGY

A. Notice

Notice is defined as "reasonable notice, including a meaningful opportunity to prepare and to defend against the allegations of the motion or complaint."^[xxxviii] This means that the parties must be afforded an opportunity to not only cross-examine the opposing party but that each party have an opportunity to testify on their behalf before the court. The exception is in cases of immediate and irreparable injury, loss, or damage demonstrated by an affidavit or verified

[1] 29 Fla. Jur. 2d Injunctions § 1 (1998).

[2] Id.

[3] 29 Fla. Jur. 2d Inunctions § 3 (1998).

[4] Id.

[5] Id.

[6] 26 Fla. Jur. 2d Family Law § 993 (1992).

[7] Id.

[8] Id.

[9] Id.