Parrish v. Parrish

FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JENNIFER PARRISH, )
)
Appellant, )
)
v. ) Case No. 2D13-4639
)
JACOB MATTHEW PARRISH, )
)
Appellee. )
)
Opinion filed August 1, 2014.
Appeal from the Circuit Court for Collier
County; Christine Greider, Judge.
Michelle L. Hill of The Law Office of
Michelle Hill, Naples, for Appellant.
Matthew P. Irwin and Sam R. Assini of
Men's Rights Law Firm, Cape Coral, for
Appellee.
DAVIS, Chief Judge.
Jennifer Parrish challenges the trial court's order dismissing her third
petition for temporary injunction for protection against domestic violence against her
husband, Jacob Parrish, during the pendency of their dissolution of marriage
proceedings. The trial court erred by dismissing the petition for the reasons stated in
the order of dismissal and by failing to afford Mrs. Parrish the preliminary procedural
due process required under these circumstances. We therefore reverse.
Mrs. Parrish originally sought and was granted a temporary injunction
against Mr. Parrish. Then in May 2013 the parties reached a settlement on the issues
of visitation with the parties' minor children and contact between the parties during the
pending dissolution. As part of that settlement, Mrs. Parrish voluntarily dismissed the
temporary injunction. Following entry of the June 11, 2013, final order related to that
settlement agreement, it is alleged that the parties were present at the same beach
location on June 15, 2013, and that some level of verbal contact and/or location stalking
occurred at that time. Mrs. Parrish reported the contact to police and filed a second
petition for temporary injunction without specifically referencing the beach incident. The
trial court considered the matter and denied the petition because the allegations were
resolved by the prior settlement agreement. Neither party appealed that order. Mrs.
Parrish then filed a third petition for temporary injunction, this time attaching several
pages describing the beach incident. For reasons that are not clear from the record, the
trial court erroneously concluded that everything alleged in the third petition predated
the June 11, 2013, final order of disposition that was entered following the May
settlement. On that basis, the court dismissed Mrs. Parrish's third petition. She now
argues on appeal that the trial court's dismissal deprived her of her rights to due
process, and we agree.1
1
There is no indication in the record on appeal or in the appendices
accompanying the briefs pursuant to Florida Rule of Appellate Procedure 9.130(e) that
the trial court otherwise reviewed the sufficiency of the petition, allowed the parties an
opportunity to respond, or held a hearing. Cf. Chanfrau v. Fernandez, 782 So. 2d 521,
522 (Fla. 2d DCA 2001) ("Appellant was given no notice that the court would even
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The beach incident clearly postdates the settlement agreement which led
to the dismissal of the first injunction and therefore could not have been considered
during those initial proceedings. Accordingly, it was error for the trial court to dismiss
the instant petition for temporary injunction on the basis that it raised allegations
resolved by Mrs. Parrish's voluntary dismissal of the first injunction. This error deprived
Mrs. Parrish of the procedural due process to which she is entitled under section
741.30, Florida Statutes (2012), because the trial court did not allow her an opportunity
to be heard or failed to otherwise consider whether her petition meets the requirements
for the issuance of a domestic violence injunction under the procedures set forth in
section 741.30. Accordingly, we reverse the dismissal of the third petition for temporary
injunction and remand for reconsideration in accordance with the dictates of section
741.30.2
Reversed and remanded.
VILLANTI and SLEET, JJ., Concur.
contemplate dismissal[,] nor was he given an opportunity to argue against it. By
dismissing the injunction without motion, notice, or evidentiary hearing, the court failed
to afford appellant due process in this matter.").
2
We make no determinations regarding whether the third petition filed by
Mrs. Parrish is otherwise sufficient under section 741.30(3), cf. Polanco v. Cordeiro, 67
So. 3d 235, 237 (Fla. 2d DCA 2010) (remanding for the dismissal of a petition seeking
an injunction against repeat violence where the allegations did not rise to the level
necessary to obtain relief under the statute), or whether a hearing pursuant to section
741.30(4) is required under the facts presented, see Biggs v. Elliot, 707 So. 2d 1202,
1202 (Fla. 4th DCA 1998) ("Whether the conduct [alleged in the petition for injunction
against domestic violence] meets the statutory requirement is a question of fact for the
trier of fact."). Furthermore, nothing in this opinion should be read to preclude either
party from seeking alternative forms of relief available through their dissolution
proceedings or the temporary settlement agreement referenced in this opinion. See
Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA 2007).
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