Opinion
No. 1D20-1647
04-09-2021
Tyson OWENS, Appellant, v. Jillian OWENS, Appellee.
Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellant. No appearance for Appellee.
Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellant.
No appearance for Appellee.
Long, J.
We review a final judgment of injunction for protection against domestic violence entered on behalf of Appellee against Appellant. We have jurisdiction. Art V., § 4(b)(1), Fla. Const.
Appellant argues the judgment must be reversed because the trial judge refused to consider any evidence after Appellant admitted, among other things, to installing a camera outside of Appellee's home. Apparently considering this portion of the testimony to be insurmountable, the trial judge cut the hearing short and prevented Appellant from presenting any further evidence or questioning witnesses. Of particular note, though Appellee was allowed to provide extensive sworn testimony, the trial judge would not permit Appellant any cross-examination. When Appellant's counsel inquired about cross-examining Appellee, the trial judge explained that he would not be given the opportunity. This was error:
Parties are entitled to a full hearing prior to the trial court issuing a permanent injunction. ... To satisfy due process requirements at an injunction hearing, the parties must have a reasonable opportunity to prove or disprove the allegations made in the complaint. ... This includes allowing relevant testimony of pertinent, noncumulative witnesses who are present and cross-examination of the parties.
Furry v. Rickles , 68 So. 3d 389, 390 (Fla. 1st DCA 2011).
Appellee made a number of serious allegations and she may ultimately be entitled to the final judgment of injunction. But the court cannot deprive Appellant of a full hearing, no matter how compelling it considers portions of the evidence. We reverse and remand with directions for the trial court to vacate the permanent injunction, reissue the temporary injunction, and conduct a full hearing in accord with Furry .
REVERSED and REMANDED .
LEWIS, J., concurs; Makar, J., concurs with opinion.
Makar, J., concurring with opinion. After hearing testimony that the appellant-husband had installed a video camera on a neighboring property to monitor the home where his estranged wife and daughter lived, that a mobile hotspot the wife did not recognize had been set up that covered the home, that a GPS monitor had been found on the wife's vehicle, that the husband had driven by the home and showed up at the wife's workplace, and that the wife had received harassing texts from the husband, the trial judge allowed the husband to testify in defense of himself. He countered that he was simply trying to protect the home (which his parents owned) and its property by installing the video camera, that he put a GPS in his daughter's backpack but not on the wife's car, and that his wife had a history of making false claims against him; wife's counsel did not seek to cross-examine the husband.
At that point, the trial judge ruled that a stalking violation was established based solely on the admission that the husband had the video camera installed, implicitly rejecting the husband's claim that he had a legitimate purpose in doing so to protect his parent's property from theft and vandalism. See, e.g. , Goosen v. Walker , 714 So. 2d 1149, 1150 (Fla. 4th DCA 1998) (upholding injunction where one neighbor had "videotaped [other neighbors] on two to four occasions during the preceding four months, when the [other neighbors] were in their own yard or the adjoining area").
Due to pandemic-related time constraints, the trial judge did not allow the husband's counsel to cross-examine the wife, concluding that because the husband admitted to installing the video camera, it did not matter what the wife might have to say (the trial judge noted that he'd have allowed cross-examination but for the docket congestion arising from the pandemic).
Wigmore (and Ehrhardt) both remind us, however, that cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth" and one of the greatest contributions of Anglo-American law to trial procedures. John H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law 2:1697-98 (1904); see Charles W. Ehrhardt, Ehrhardt's Florida Evidence , § 801.1 (2020 ed.) ("Wigmore's characterization of cross-examination as ‘beyond any doubt the greatest legal engine, ever intended for the discovery of truth’ underlies the exclusion of hearsay testimony." (footnote omitted)). The injunction transcript in this case reflects much hearsay testimony from the parties, making cross-examination potentially important. Ehrhardt, § 801.1. ("Without the ability to cross-examine a witness regarding his or her ability to observe, remember, and truthfully and accurately recount what occurred, counsel cannot expose any inconsistencies or any inaccuracies in a statement made outside the courtroom." (Footnote omitted)). Cross-examination can be limited, of course, and its absence can be harmless error, but given the parties’ dueling claims of credibility and the impact an injunction can have on families, a remand for a redo is appropriate, such that I fully concur in Judge Long's opinion.
Florida appellate courts "continue to see unrepresented parties in [stalking injunction] cases," Hussey v. Lara , 272 So. 3d 498, 500 (Fla. 3d DCA 2019), typically because one or both parties lacked trial counsel. In contrast, both parties in this case had trial counsel, but the wife filed no appellate brief.
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