Smith v. Crider

932 So. 2d 393, 2006 WL 932567
CourtDistrict Court of Appeal of Florida
DecidedApril 7, 2006
Docket2D05-5606
StatusPublished
Cited by19 cases

This text of 932 So. 2d 393 (Smith v. Crider) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Crider, 932 So. 2d 393, 2006 WL 932567 (Fla. Ct. App. 2006).

Opinion

932 So.2d 393 (2006)

Laura L. SMITH, f/k/a Laura L. Crider, Appellant,
v.
Benjamin C. CRIDER, Appellee.

No. 2D05-5606.

District Court of Appeal of Florida, Second District.

April 7, 2006.

*395 Brandon J. Rafool of Brandon J. Rafool, L.L.C., Winter Haven, for Appellant.

*396 Jean Marie Henne, Winter Haven, for Appellee.

ALTENBERND, Judge.

Laura L. Smith (the "mother"), appeals an order denying her motion to dissolve an ex parte temporary injunction. The injunction temporarily modifies a final judgment of dissolution of marriage by (1) awarding Benjamin C. Crider (the "father"), Ms. Smith's former husband, immediate temporary sole parental responsibility of the parties' two minor children and (2) prohibiting the mother from removing the children from the jurisdiction of the court without the consent of the father or without a court order. In fact, this "temporary injunction" is not a distinct order entered by the trial judge but consists of a copy of the father's "motion for temporary injunction and for other relief" that is stamped "Motion Heard, Considered And Granted" and dated and signed by a circuit court judge. The entry of this "injunction" or "order" raises serious due process concerns. Based upon those concerns and other reasons, the trial court was required to dissolve the injunction. We therefore reverse the order denying the motion to dissolve the injunction.

The parties were divorced pursuant to a final judgment of dissolution of marriage entered on October 31, 2000. The final judgment awarded the parties shared parental responsibility for the children with the mother designated as the primary residential parent, subject to visitation by the father. On August 22, 2005, the father filed a supplemental petition for modification of the final judgment, seeking sole parental responsibility of the children. On the same date, the father also filed a "motion for temporary injunction and other relief." This motion was "sworn to and subscribed" by the father before a notary public. In the motion, the father made serious allegations regarding the mother's fitness as a parent. The most serious allegations involved alleged drug use. However, as alleged, it is clear that the source of much of the allegations was not the father's personal knowledge but accusations made by third parties, none of whom presented similar affidavits. The father also alleged that the children were in the care of a maternal grandmother who was in poor health, and that the mother's "present whereabouts are unknown."

Notably, this motion did not explicitly request ex parte relief. Perhaps this explains why the motion did not allege the elements necessary to obtain an injunction nor the factual matters generally required to obtain ex parte emergency relief. It is unclear from our record how the motion was presented to the trial judge or how it resulted in the granting of such ex parte relief.[1] Nevertheless, one day after the father filed his petition and motion, the trial judge stamped the motion "granted." That same day, the mother was somehow located and personally served with the petition, the motion, the "order" granting the motion, and other documents. She immediately responded by filing a motion to dissolve the temporary injunction and by scheduling a prompt but brief hearing on her motion.

At the hearing, the mother presented legal argument regarding her motion to dissolve the injunction. The father did not present or proffer any evidence, and indeed it appears that the time scheduled for this hearing would not have permitted the same. The father did indicate his willingness *397 to schedule an evidentiary hearing at some unspecified time in the future. The mother objected and argued that the order should be immediately dissolved. The trial judge acknowledged that the order might have "procedural deficiencies" but indicated he felt the allegations were serious enough that he was compelled to act upon the motion. The court pointed out that the mother had now received notice of the proceedings and an opportunity to be heard. The court denied the mother's motion to dissolve the injunction, and the mother appealed that ruling.

The trial court's error in denying the motion to dissolve the injunction is, to a significant degree, intermingled with its error in entering the ex parte injunction in the first instance. The trial court did not follow the procedures necessary to comport with due process when it entered the injunction, and then compounded the error by failing to require the father to plead and prove those elements necessary to support such an order when the mother sought to dissolve the order. The trial court seems to have assumed that the mother had the burden of proof to establish the propriety of dissolving the injunction, even though the trial court had never had any basis in law or fact to enter the injunction.

The initial "order" entered by the trial court provides ex parte relief in the form of a temporary modification of custody and a temporary injunction prohibiting the removal of the children from the jurisdiction of the court. As to the portion of the order granting injunctive relief, the issuance of such an injunction requires compliance with Florida Rule of Civil Procedure 1.610(a),[2] which provides:

(1) A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

See also City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1192 (Fla. 4th DCA 2000) (stating a trial court should issue an ex parte injunction only where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice). As such, a motion seeking an ex parte temporary injunction—or for that matter, seeking almost any immediate ex parte relief—must demonstrate how and why providing reasonable notice would actually accelerate, precipitate, or otherwise permit the threatened irreparable injury to occur. Id. at 1193. It is also important to note that a temporary injunction is an extraordinary remedy that should be granted sparingly. City of Boca Raton, 768 So.2d at 1192.

In this case, the father's motion did not present any facts suggesting that there was an immediate threat that the children would be removed from the jurisdiction of the court. Indeed, the father alleged that the children were in the care of the maternal grandmother and the mother's whereabouts were unknown. Thus there appears to have been no basis for the entry of a temporary injunction prohibiting the mother from taking the children from the *398 jurisdiction of the court for any length of time.

Even if the father had established a basis for the issuance of an injunction, the order entered by the court failed to comply with rule 1.610(a)(2) and (c).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael J. Dean v. 1180 Bimini, LLC
District Court of Appeal of Florida, 2026
WHITACRE v. RAGAN
District Court of Appeal of Florida, 2024
Fabiola Ramirez v. Dominick Marzano
District Court of Appeal of Florida, 2024
Munoz v. Munoz Salgado
253 So. 3d 87 (District Court of Appeal of Florida, 2018)
Ferris v. Winn
242 So. 3d 509 (District Court of Appeal of Florida, 2018)
JAMES LEIGH FERRIS v. DIANNA WINN, F/ K/ A DIANNA FERRIS
District Court of Appeal of Florida, 2018
Bahl v. Bahl
220 So. 3d 1214 (District Court of Appeal of Florida, 2016)
Slaton v. Slaton
195 So. 3d 1192 (District Court of Appeal of Florida, 2016)
Wolfson v. Wolfson
173 So. 3d 1136 (District Court of Appeal of Florida, 2015)
Bronstein v. Bronstein
167 So. 3d 462 (District Court of Appeal of Florida, 2015)
Weissman v. Weissman
102 So. 3d 718 (District Court of Appeal of Florida, 2012)
Douglas v. Johnson
65 So. 3d 605 (District Court of Appeal of Florida, 2011)
Parrish v. Price
71 So. 3d 132 (District Court of Appeal of Florida, 2011)
Department of Children & Families v. D.B.D.
42 So. 3d 916 (District Court of Appeal of Florida, 2010)
Bieda v. Bieda
42 So. 3d 859 (District Court of Appeal of Florida, 2010)
Premier Lab Supply, Inc. v. Chemplex Industries, Inc.
10 So. 3d 202 (District Court of Appeal of Florida, 2009)
Bon v. Rivera
10 So. 3d 193 (District Court of Appeal of Florida, 2009)
Haddix v. Emret
992 So. 2d 883 (District Court of Appeal of Florida, 2008)
Braswell v. Braswell
935 So. 2d 604 (District Court of Appeal of Florida, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
932 So. 2d 393, 2006 WL 932567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-crider-fladistctapp-2006.