        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          MICHAEL VAUGHT,
                              Appellant,

                                    v.

                          KATHLEEN VAUGHT,
                              Appellee.

                             No. 4D14-3699

                             [April 20, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lisa S. Small, Judge; L.T. Case No. 2014DR007947
MBFD.

  Andrew David Stine of Andrew D. Stine, PA, West Palm Beach, for
appellant.

  Manuel Farach of Richman Greer, P.A., West Palm Beach, for
appellee.

CIKLIN, C.J.

   Michael Vaught (“the Husband”) appeals a domestic violence
injunction entered after an evidentiary hearing. He argues that the
injunction was entered in violation of due process where the injunction
was based on allegations made in an affidavit that was never provided to
him, and further, that he had less than three business days of notice of
the final hearing. We agree and reverse the final judgment of injunction.

    On August 25 and August 26, 2014, Kathleen Vaught (“the Wife”),
filed petitions for injunction against domestic violence, alleging that the
Husband had stalked her and destroyed personal property belonging to
her. In a written order, the trial court found the allegations were not
sufficient for entry of a temporary injunction but it advised the Wife that
she could supplement her allegations. The court set a hearing on the
petition for September 3, 2014.

    On August 27, 2014, the Wife filed what she called a supplemental
affidavit in support of her petition. In her supplemental affidavit, the
Wife alleged—for the first time—instances of physical abuse by the
Husband. The face of the supplemental affidavit does not make it
apparent that a copy was provided to the Husband.

   The next day, the trial court entered the temporary injunction and
again scheduled the final hearing for September 3, 2014, a Wednesday.
The Husband asserts that he received this notice on August 28, 2014,
the previous Thursday.

    The parties appeared at the hearing. The Wife was represented by
counsel and the Husband proceeded pro se. The Wife testified regarding
instances of violence. When the court permitted the Husband to speak
and respond, he stated that he “just got served Friday,” and he requested
the hearing be continued. The court denied the request because the
hearing had already begun. The Husband then gave his version of events
and claimed he had evidence that would support his version. When the
trial court inquired whether the Husband brought the evidence to the
hearing, the Husband indicated that he wasn’t aware the Wife was going
to make the allegations of physical abuse: “No. I didn’t think I was
gonna really need, I didn’t know she was going to come up with all this
stuff she’s coming with. I thought this was simple. I didn’t really
prepare for this here.”

   The trial court entered a final judgment of injunction with an
expiration date of December 31, 2015.1        The Husband moved for
rehearing, asserting among other things that “because of the holiday, [he]
only had one day to find an attorney.”2 The court denied the motion.

   “[A] claim that a party has been denied procedural due process is
reviewed de novo.” Residential Mortg. Serv. Corp. v. Winterlakes Prop.
Owners Ass’n, 169 So. 3d 253, 255 (Fla. 4th DCA 2015) (citation
omitted). A trial court’s denial of a motion for continuance is reviewed
for an abuse of discretion, which must be clearly shown. Krock v.
Rozinsky, 78 So. 3d 38, 41 (Fla. 4th DCA 2012).

   Section 741.30, Florida Statutes (2014), provides a cause of action for
a domestic violence injunction. The statute provides in pertinent part
that “[t]he respondent shall be personally served with a copy of the
petition.” § 741.30(4), Fla. Stat. The statute also provides that “[t]he

1   The appeal is not moot, “due to the collateral consequences such an
injunction might cause.” Selph v. Selph, 144 So. 3d 676, 679 (Fla. 4th DCA
2014) (citing Stone v. Stone, 128 So. 3d 239, 242 (Fla. 4th DCA 2013)).
2   Monday, September 1, 2014, was Labor Day.

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sworn petition shall allege the existence of such domestic violence and
shall include the specific facts and circumstances upon the basis of
which relief is sought.” § 741.30(3)(a). The statute states that “[n]othing
herein affects a petitioner’s right to promptly amend any petition.” §
741.30(5)(b). The trial court may grant a continuance “before or during a
hearing for good cause shown by any party, which shall include a
continuance to obtain service of process.” § 741.30(5)(c). Further, “[a]ny
injunction shall be extended if necessary to remain in full force and effect
during any period of continuance.” Id.

  The Third District has explained due process in the context of a
domestic violence injunction proceeding:

      It is axiomatic that a party defending against a 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. To “allow a court to rule on a matter
      without proper pleadings and notice is violative of a party’s
      due process rights.”

Sanchez v. Marin, 138 So. 3d 1165, 1167 (Fla. 3d DCA 2014) (citation
omitted).

   In Sanchez, petitioner’s counsel indicated that the petitioner would
testify as to matters not raised in the served petition. The respondent
objected, arguing that he was prejudiced in his ability to prepare for and
respond to the allegations that were not included in the original petition.
The court permitted the testimony and entered an injunction based on
the new allegations. Id. On appeal, the court reversed, observing that
the petitioner “raised material allegations for the first time during the
final hearing,” and that she “never sought to amend the petition, or
otherwise place Sanchez on notice prior to the hearing, that she would
seek to introduce evidence” of the new allegations. Id. at 1168-69.

    In another case where a trial court entered a permanent injunction
after the petitioner was allowed to testify as to unpled allegations, the
appellate court wrote that “the admission and consideration of these
significant and substantial—but unpled—allegations deprived [the
respondent] of his right to due process, because he was given neither
notice of the allegations upon which [the petitioner] sought relief, nor a
full and fair opportunity to prepare to meet those allegations.” De Leon v.
Collazo, 178 So. 3d 906, 908-09 (Fla. 3d DCA 2015) (citation omitted).

   Procedural due process concerns are also implicated when the notice

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of a final hearing is too close in time to the final hearing itself. A trial
court errs when it fails to grant a request for a continuance under such
circumstances. See Storm v. Decker, 971 So. 2d 165, 166 (Fla. 5th DCA
2007) (finding appellant was deprived of due process where the notice of
the final hearing was provided only three business days before the final
hearing, the trial court would not grant a continuance, and there was no
emergency).

    In the instant case, while the new allegations were not raised for the
first time at the final hearing, they were raised in the supplemental
affidavit, a copy of which the record indicates was never provided to the
Husband. Notably, the Wife does not respond to the Husband’s due
process arguments on appeal.3 Instead, she argues the evidence was
sufficient to support entry of a permanent injunction. Additionally, the
court erred in denying the motion for continuance where the notice of the
final hearing on the new and supplemental allegations was provided only
a few business days before the final hearing.4 Based on the foregoing, we
reverse the final judgment of injunction and order that it be set aside.

    Reversed with instructions.

WARNER and KLINGENSMITH, JJ., concur.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.




3  We recognize that the Husband did not make the most explicit due process
argument below. However, in light of the Husband’s pro se status and the
record as a whole, we find the Husband’s attempt to make such an objection
was sufficient to preserve the issue for appeal.
4  The record and the Husband’s brief indicate that the Husband received
notice of the final hearing on either Thursday, August 27 or Friday, August 28,
2014. The final hearing was held on Wednesday, September 3, 2014. As
previously noted, the preceding Monday was a holiday.

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