       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 10, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2541
                         Lower Tribunal No. 17-22673
                             ________________


                          Lazaro Regalado Lopez,
                                     Appellant,

                                        vs.

                             Jennifer Regalado,
                                     Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.

     Nancy C. Wear, for appellant.

     Jennifer Regalado, in proper person.


Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.

     ROTHENBERG, C.J.
      The appellant, Lazaro Regalado Lopez (“Regalado”), appeals from a final

judgment of injunction for protection against domestic violence with children

entered on October 23, 2017 in favor of his estranged wife, Jennifer Regalado

(“Jennifer”). Regalado also appeals from two separate orders that were entered on

the same day.     One order modified Regalado’s time-sharing schedule with his

minor children from unsupervised to supervised, and the other awarded Jennifer

temporary support. Regalado claims that the trial court abused its discretion and

that the trial court’s orders violated his due process rights. For the reasons that

follow, we affirm the final judgment of injunction and reverse the orders

modifying the time-sharing schedule and awarding Jennifer temporary support.

                                 BACKGROUND

      Regalado and Jennifer were married in 2009, and they have three minor

children: M.R., J.R., and N.R.    On September 26, 2017, Jennifer filed for divorce

in Miami-Dade County Circuit Court, and that case (“the divorce action”) remains

pending. Regalado has a history of bipolar disorder. Jennifer makes reference to

this history in her petition(s) for injunction for protection against domestic violence

with children. Her first petition, filed under Case No. 16-30210 (“the 2016 DV

action”) on December 23, 2016, was granted on March 7, 2017, and was renewed

monthly until it expired on September 7, 2017.




                                          2
      On October 3, 2017, Jennifer filed a second petition for injunction for

protection against domestic violence with children, Case No. 17-22673 (“2017 DV

action”).     In the petition, Jennifer checked off the following boxes as being

applicable:

   a. Committed or threatened to commit domestic violence defined in
      741.28, Florida Statutes, as any 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 of one family or household
      member by another.

   b. Previously threatened, harassed, stalked, or physically abused the
      petitioner.

   c. Attempted to harm the petitioner or family members or individuals
      closely associated with the petitioner.

   d. Threatened to conceal, kidnap, or harm the petitioner’s child or
       children.
   . . . .

   g. Physically restrained the petitioner from leaving the home or calling
      law enforcement.

   h. A criminal history involving violence or threat of violence . . . .

   i. Another order of protection issued against him/her previously or from
      another jurisdiction.

   j. Destroyed personal property, including but not limited to, telephones
      or other communication equipment, clothing, or other items belonging
      to the petitioner.




                                          3
   k. Engaged in any other behavior or conduct that leads the petitioner to
      have reasonable cause to believe he or she is in imminent danger of
      becoming a victim of domestic violence.

   . . . .

      In addition to the checked items noted above, Jennifer included handwritten

factual allegations with her petition.    She alleged, among other things, that

Regalado had not been taking his medication and that he had been recently

hospitalized at the psychiatric ward of Palmetto General Hospital following an

altercation with his parents. Jennifer claimed that after Regalado was discharged

from the hospital on October 1, 2017, he showed up at her house at 7:00 a.m., half-

dressed, wearing a hospital sheet, and looking mentally unstable. She further

recounted that Regalado had recently been “playing with fire” and had hurt

himself. Lastly, she alleged that Regalado had touched her and tried to kiss her

without her consent.

      The trial court conducted a hearing on the petition on October 23, 2017.

Both parties attended the hearing. At the hearing, Jennifer, who testified consistent

with her handwritten allegations, testified that Regalado offered a bizarre

explanation as to why he was not properly dressed when he showed up at her house

unannounced. Specifically, Jennifer testified that Regalado told her that he had

donated his clothes and shoes to charity, and that was why he was shirtless and

barefoot. She also testified that Regalado grabbed her “hard” “sexually,” and



                                         4
“tried to force a kiss.” Because of his demeanor, Jennifer stated that she felt that

her children were at risk, she did not allow Regalado to see them, and she filed a

police report.

      Jennifer also testified that Regalado had shown up at her house on three

prior occasions following the expiration of the last restraining order.         She

explained that Regalado had been texting her, and coming to her house between

4:00 and 5:00 a.m., asking to take the children to school, but when the security

guard in her community alerted her to Regalado’s presence, she would deny him

entry. Upon questioning by the trial court, Jennifer claimed that in addition to the

October 1, 2017 incident, Regalado had also been violent with her on prior

occasions. Specifically, she explained that in 2009, Regalado had choked her at

his parents’ house, and on a separate occasion, while at a hotel, Regalado broke a

table and battered her with parts of the broken table.

      Regalado, who also testified at the hearing, initially denied the allegations

and claimed that he had been taking his medication. However, when questioned,

he conceded that he had showed up at Jennifer’s house on a particular morning

between 4:00 and 5:00 a.m., when he was not supposed to pick up the children on

that day.    Regalado also conceded that on October 1, 2017, he showed up at

Jennifer’s house half-dressed wearing a sheet, that the paramedics found him at a

high school in Weston, and that his explanation was that he had “given up [his



                                          5
shirt] and shoes for donation there.”          In attempting to explain this behavior,

Regalado testified that he had been walking all night and had foot pain, so he

called 911 from his cell phone and the paramedics who responded took him to the

hospital, where he was found to be dehydrated, was placed on an IV for hydration,

and was later released.      Regalado’s explanation as to why he showed up at

Jennifer’s house unannounced was that he wanted to see his children and try to

save his marriage.

      Upon further questioning by the trial court, Regalado also admitted to

assaulting Jennifer and attempting to kiss her without her consent. In an attempt

to explain these actions, he stated the following:

      It’s not that I grabbed her hard, or nothing. I just treat her . . . like my
      wife. I mean for Christ’s sake, she’s still my wife. Do I have to ask
      permission to kiss my wife. . . . I mean, are we getting to that point?

      During the hearing, the trial court sua sponte raised the issue of time-

sharing. Upon questioning by the trial court, Jennifer testified that given the

circumstances, she felt that unsupervised visits were no longer appropriate. She

further testified that she had noticed changes in her children after their return from

spending time with Regalado, and that her daughter is depressed, has low self-

esteem, and is being treated by a therapist.      Following the hearing, the trial court

concluded that, “[a]fter taking testimony from the parties [and] having reviewed




                                           6
the evidence, this Court find[s] sufficient evidence to warrant [the] issuance of a

permanent injunction for a period of 18 months.”

      Thereafter, the trial court entered two additional orders.       One order,

captioned “Order Granting Temporary Child Support,” awarded Jennifer $400 per

month in temporary child support. The other order, captioned “Order of Referral

to Family Court Services,” changed Regalado’s time-sharing with the minor

children from unsupervised to supervised visits. Both orders were entered by the

trial court assigned to the 2017 DV action, however, both were filed in the divorce

action. This appeal followed.

                           STANDARD OF REVIEW

      “[A] claim that a party has been denied procedural due process is reviewed

de novo.” Vaught v. Vaught, 189 So. 3d 332, 334 (Fla. 4th DCA 2016) (quoting

Residential Mortg. Serv. Corp. v. Winterlakes Prop. Owners Ass’n, 169 So. 3d

253, 255 (Fla. 4th DCA 2015)). An order granting an injunction in the domestic

violence context is reviewed for abuse of discretion. Selph v. Selph, 144 So. 3d

676, 677 (Fla. 4th DCA 2014); see also Kunkel v. Stanford ex rel C.S., 137 So. 3d

608, 609 (Fla. 4th DCA 2014) (concluding that the trial court abused its discretion

by entering a domestic violence injunction when the ruling is not supported by

competent, substantial evidence). When evaluating whether a trial court’s order

granting an injunction is supported by competent, substantial evidence, we look at



                                        7
legal sufficiency as opposed to evidentiary weight. See Brilhart v. Brilhart, ex rel.,

S.L.B., 116 So. 3d 617, 619 (Fla. 2d DCA 2013).

                                    ANALYSIS

      I.     Personal Service

      The record reflects that there were several unsuccessful attempts to

personally serve Regalado with the instant petition for injunction prior to the

hearing. Because these attempts were unsuccessful, Regalado claims that the trial

court failed to afford him due process prior to the entry of its orders. Section

741.30(4), Florida Statutes (2017), provides that in a cause of action regarding a

domestic violence petition, the respondent shall be “personally served” with a copy

of the petition.   As we have explained, “[i]t is axiomatic that a party defending

against a [domestic violence] claim is entitled to due process, including the right to

proper and adequate notice of the allegations which form the basis for the relief

sought.” Sanchez v. Marin, 138 So. 3d 1165, 1167 (Fla. 3d DCA 2014).           In this

context, due process implications come into play where the petitioner raises, and

the trial court admits, “significant and substantial—but unpled—allegations.” De

Leon v. Collazo, 178 So. 3d 906, 908 (Fla. 3d DCA 2015).         In other words, the

concern is that the respondent be given an opportunity to be present, to be heard,

and to address the allegations in the petition. See Newsom v. Newsom, 221 So. 3d




                                          8
1265, 1266 (Fla. 1st DCA 2017). In this case, Regalado was present, he was heard,

and he addressed the allegations in the petition.

       Regalado insists, however, that Vaught v. Vaught, 189 So. 3d 332 (Fla. 4th

DCA 2016), supports his request for a reversal. However, Regalado’s reliance on

Vaught is misplaced, as that case involved the denial of the husband’s motion for a

continuance, and is easily distinguishable from the instant case. Additionally, in

Vaught, there was one incident and one petition of record, whereas this case

involves a long history, more than one petition, and several domestic violence

injunction renewals.     Also, in Vaught, unlike the instant case, the wife was

represented by counsel, whereas, the husband was proceeding pro se. Id. at 333.

More importantly, the husband in Vaught appeared at the final hearing and

requested a continuance alleging, among other things, that the wife had raised new

allegations in a supplemental affidavit, and that these new allegations were being

raised for the first time at the final hearing.     Id.   The husband in Vaught also

claimed that he had evidence that supported his version of the events, but that in

light of the wife’s supplemental affidavit, he was not prepared to go forward with

the final hearing because “[he] didn’t know [the wife] was going to come up with

all this [new] stuff.”   Id.   The trial court denied the husband’s request for a

continuance and issued the injunction. Id. On those facts, the Fourth District

Court of Appeal concluded that the husband had shown good cause sufficient to



                                          9
warrant a continuance under section 741.30(5)(c) and that the trial court had

abused its discretion by denying the request for a continuance. Id. at 334.

      In contrast with Vaught, Regalado never claimed he was unprepared, and he

never requested a continuance, and although he claims that he was not properly

served with the petition, he appeared at the hearing as noticed, and he was

personally served with the petition by a court liaison officer in open court. At no

time did Regalado proffer evidence that was rejected by the court or complain that

he was not being given an opportunity to defend himself.          See, e.g., Lopez v.

Lopez, 922 So. 2d 408, 410 (Fla. 4th DCA 2006). In fact, the record reflects that

Regalado was fully prepared to go forward, did go forward, and requested no

continuances. Further, Regalado was aware of the allegations against him based

upon the prior petition, the prior injunction, and the extensions and renewals

associated therewith. As reflected above, the parties have been involved in at least

three separate court cases, i.e., the 2016 DV action, the divorce action, and the

2017 DV action. Regalado knew why he was there, he knew what he was being

accused of, and he admitted to the lion’s share of the allegations raised by Jennifer.

      The record therefore reflects that Regalado was given an opportunity to

address the allegations in the petition, many of which were not new and had been

raised in prior proceedings, and that Regalado never raised the issue of notice or

expressed any concerns about going forward with the hearing. Thus, we conclude



                                         10
that Regalado’s due process rights were not violated and the record supports the

trial court’s issuance of the injunction.

      II.    Final Judgment of Injunction Against Domestic Violence

      Regalado also contends that the trial court erred by issuing the final

judgment of injunction against domestic violence because he claims that Jennifer

was not a victim of domestic violence, and that she failed to present substantial,

competent evidence of any objectively reasonable fear of imminent harm.

Specifically, Regalado alleges that Jennifer made false allegations that, at best,

constitute generalized threats that are insufficient to warrant the entry of a

domestic violence injunction. We disagree.

      As a general matter, a trial court may issue a domestic violence injunction

when the petitioner establishes that “he or she is either a ‘victim of domestic

violence as defined in section 741.28 or has reasonable cause to believe he or she

is in imminent danger of becoming the victim of any act of domestic violence.’”

Lopez, 922 So. 2d at 410 (quoting § 741.30(1)(a), Fla. Stat. (2005)) (emphasis

added). Section 741.28(2) specifically defines domestic violence as “any 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 of one family or household member by

another family or household member.” When considering whether a petitioner has



                                            11
reasonable cause to fear becoming the victim of imminent domestic violence, “the

trial court must consider the current allegations, the parties’ behavior within the

relationship, and the history of the relationship as a whole.”        Giallanza v.

Giallanza, 787 So. 2d 162, 164 (Fla. 2d DCA 2001) (quoting Gustafson v. Mauck,

743 So. 2d 614, 616 (Fla. 1st DCA 1999)).

      In this case, Jennifer did more than make generic allegations. She set forth

a history of violence in the instant petition, as reflected by her handwritten

supplement. She described specific incidents where Regalado pushed her, choked

her, and injured her using parts of a table that Regalado himself had broken. Her

testimony was consistent with the allegations raised in the petition, detailing

current and prior instances of violence and manic behavior by Regalado that

supported her fear. As reflected above, at the hearing, Regalado admitted to most

of the allegations, provided a bizarre explanation for others, and never denied

showing up at Jennifer’s house unannounced in the early morning hours while

half-naked. Regalado admitted to assaulting Jennifer and forcing her to kiss him

against her will. He likewise admitted to the altercation at his parents’ home and

did not dispute or deny Jennifer’s allegations of prior violence at a hotel. In sum,

the record reflects a cumulative history of similar events and confirms that the

subject of the instant petition was not an isolated incident.




                                          12
      This case is similar to Zarudny v. Zarudny, 241 So. 3d 258 (Fla. 3d DCA

2018), where we affirmed the trial court’s entry of a domestic violence injunction

where the respondent had a history of mental disorders, was not taking his

prescription medication, was currently and previously abusive and controlling, and

had admitted to certain allegations in the petition. As previously discussed at

length, a similar pattern exists here.

      Based upon the record in this case, we conclude that Regalado’s history of

violence, abusive conduct, and manic behavior constitutes substantial competent

evidence supporting the trial court’s findings that Jennifer had an objectively

reasonable cause to believe that she was in imminent danger.     Accordingly, we

find no abuse of discretion by the trial court.

      III.   Orders on Supervised Visits and Temporary Support

      Regalado contends that the trial court erred when it modified the time-

sharing schedule and awarded Jennifer temporary support because the petition did

not request either relief. We agree.

      A. Time-sharing

      “In modification proceedings, as in other civil matters, courts are not

authorized to award relief not requested in the pleadings.”       Worthington v.

Worthington, 123 So. 3d 1189, 1190 (Fla. 2d DCA 2013) (quoting Abbott v.

Abbott, 98 So. 3d 616, 617 (Fla. 2d DCA 2012)). To grant unrequested relief is an



                                          13
abuse of discretion and reversible error. Abbott, 98 So. 3d at 617. In Worthington,

the wife challenged a trial court order that amended the final judgment of

dissolution of marriage.    Upon review, the appellate court reversed the portion of

the order that modified the time-sharing arrangement because it exceeded the

scope of the relief requested in the motions that were noticed to be heard.

Worthington, 123 So. 3d at 1190. Here, like in Worthington, the issue of time-

sharing was not raised in the petition or in any motion before the trial court. In

fact, the petition reflects that Jennifer was not seeking a modification of the current

time-sharing arrangement.

      The form petition utilized by Jennifer provides various options for the

petitioner to consider when petitioning the court. Paragraphs 20(a)-(e) address

time-sharing. The options provided are as follows:

      a. Petitioner requests that the Court provide a temporary parenting
         plan, including temporary time-sharing schedule with regard to the
         minor child(ren);

      b. Petitioner requests that the Court order supervised exchange of the
         minor child(ren) or exchange through a reasonable person for
         purposes of such exchange. The following is a person suggested as
         a reasonable person for purposes of the exchange . . .

      c. Petitioner requests that the Court limit time-sharing by Respondent
         with the minor child(ren);

      d. Petitioner requests that the Court prohibit time-sharing by the
         Respondent with the minor child(ren) because the Petitioner
         genuinely fears the Respondent imminently will abuse, remove, or
         hide the minor child(ren) from Petitioner;

                                          14
      e. Petitioner requests that the Court only allows with the [sic] minor
         supervised time-sharing by Respondent child(ren)[.]

      Jennifer specifically marked each of these options “N/A,” indicating that

      none

of these options were applicable. Thus, there was nothing in the petition or the

domestic violence court docket which would have placed Regalado on notice that

the issue of visitation would be raised at the October 23, 2017 hearing. Further,

no such request appears to have been filed in the divorce action. We therefore find

that the trial court abused its discretion by granting relief that was not requested.

For these same reasons, as well as the reasons that follow, we reach the same

conclusion as to the order granting temporary support.

      B. Temporary Support

      Just as with time-sharing, Jennifer had the ability to raise the issue of

temporary support in her petition.      The petition is, however, devoid of any

indication that Jennifer was seeking temporary support. Specifically, paragraphs

21-23 of the petition provide the following options:

      21. Petitioner claims that he/she has a need for the money (temporary
      support) he/she is asking the Court to order Respondent to pay and that
      Respondent has the ability to pay that money;

      22.  Petitioner requests that the Court order Respondent to pay the
           following
      temporary alimony to Petitioner;



                                         15
      23. Petitioner requests that the Court order Respondent to pay the
      following child support to Petitioner[.]

      As with the time-sharing options, Jennifer indicated that none of these

options were applicable by marking each one as “N/A.”         While the trial court

raised the issue of time-sharing sua sponte in open court, the issue of temporary

support was not addressed at all during the hearing. Therefore, no inquiries were

made and no evidence was introduced as to either Jennifer’s need for support or

Regalado’s ability to pay.

      In addressing matters regarding temporary support, the trial court’s

discretion is not unfettered. Blum v. Blum, 769 So. 2d 1142, 1143 (Fla. 4th DCA

2000). When ordering temporary support, trial courts must identify, among other

things, which portion of the award constitutes child support and which portion is

intended to be alimony. Id.; see also Burkhart v. Burkhart, 620 So. 2d 225, 226

(Fla. 1st DCA 1993) (noting that child support guidelines apply to temporary child

support awards). In this connection, the trial court must make findings regarding

the parties’ incomes for purposes of applying the child support guidelines. See

Fleischfresser v. Accursio, 833 So. 2d 803, 804 (Fla 3d DCA 2002) (reversing and

remanding a temporary support order for a complete reconsideration of the issues

with instructions to make specific findings as to both need and ability to pay); see

also Nilsen v. Nilsen, 63 So. 3d 850, 851 (Fla. 1st DCA 2011) (reversing an award

of temporary support where the trial court failed to indicate how much of the


                                        16
award was intended to be child support and failed to calculate the husband’s

income).    No such findings were made here. Further, there is no explanation in

the record as to how the trial court arrived at the $400 figure.

      As with the time-sharing order, we conclude that the order granting

temporary support exceeded the scope of the relief requested by Jennifer and was,

therefore, an abuse of discretion. Further, even if temporary support had been

requested in the petition, we find that the trial court failed to make the requisite

inquiries and findings as to need and ability to pay. Accordingly, we reverse on

this issue as well.

                                  CONCLUSION

      For the reasons stated above, we conclude that the trial did not err or abuse

its discretion by entering the domestic violence injunction. We, however, agree

with Regalado that the trial court abused its discretion by granting relief that was

not requested in the petition.     We, therefore, reverse the two separate orders

entered with respect to time-sharing and temporary support.

      Affirmed, in part; and reversed, in part.




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