Motion To Dismiss – Injunction
MOTION TO DISMISS
PETITION FOR INJUNCTION FOR PROTECTION AGAINST DATING VIOLENCE
COMES NOW the Respondent, by and through his undersigned counsel, and, pursuant to Family Law Rule 12.420(b) and Rule 1.420(b), Florida Rules of Civil Procedure, hereby files this Motion to Dismiss Petition for Injunction for Protection Against Dating Violence, and in support thereof, states as follows:
1. On August 23, Petitioner filed her Petition for Injunction for Protection Dating Violence (“Petition”), under Florida Statute §784.046.
2. There is a final hearing pending on the Petition, scheduled for February 5.
B. Lack of Jurisdiction – Not Dating In Last Six Months Prior to Filing Petition
3. Florida Statute §784.046(1)(d) states as follows:
“Dating violence” means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past 6 months …
4. Clearly, by use of the term, “must,” the legislature has made this six month rule mandatory.
5. Section III, question 1. of the Petition (at page 2), asks: “Have the Petitioner and Respondent been involved in a dating relationship within the past six months?” Petitioner answered “Yes” to that question. That was not an accurate answer.
6. Attached as Exhibit A is an August 20 Incident Report (Incident No. 571229). This Incident Report was expressly for the purpose of reviewing a complaint from Petitioner, who is identified as the “Witness/Complainant.” Exhibit A at 1. The JSO officer “met with Petitioner,” and she stated to him as follows:
She explained that she and Respondent (subject) dated for approximately two years, but she ended their relationship last summer.
Exhibit A at 2 (top paragraph) (emphasis added).
7. Obviously, “last summer,” as compared to an August 20 interview, was the summer the year prior to the incident report. Moreover, it takes two persons to have a “dating relationship,” and Petitioner made it clear that she was the one that terminated the actual “dating relationship.”
8. Importantly, Petitioner had participated in this official interview a mere three days prior to executing her Petition. As such, clearly, the representations in the Petition, which were signed under oath, and subject to the written penalties of “knowingly making a false statement,” were knowingly incorrect.
9. On January 24, Petitioner was deposed by counsel for Respondent. At that deposition, the Petitioner was presented with a copy of Exhibit A (her JSO interview), and the portion recited in ¶6 above was read to her. Highlighted extracts from that deposition are attached hereto as Exhibit B.
10. As can be seen, Petitioner confirmed, in her deposition, under oath, that what she told the officer, as recorded in the August 20 Incident Report (Exhibit A), was “true then,” and it is still “true now.” Exhibit B at page 50, lines 8-18. She also specifically testified that the term “relationship” in line two of that paragraph of the JSO Incident Report (quoted in ¶6 above) meant their “dating relationship” (Exhibit B at page 50, lines 2-7), and that the reference to that dating relationship ending “last summer” meant the summer prior to the August 20 Incident Report. Exhibit B at page 50, lines 19-21.
11. The summer prior to the August 20 Incident Report is a full one year prior to the August 23 Petition. Thus, the incorrect claim, in the Petition, that “Petitioner and Respondent had been involved in a dating relationship within the past six months” was just that – incorrect.
12. Indeed, it must be reasonably inferred this statement in the Petition was knowingly false, since Petitioner had just truthfully answered that question, a mere three (3) days earlier, when giving an official report to the JSO. Moreover, at the time of her January 24 deposition, Petitioner continued to confirm the accuracy of the fact that her “dating relationship” with Respondent had ended in the summer prior ro the August 20 Incident Report– a full year prior to executing her August 23 Petition. Thus, both three (3) days before she executed her Petition, and five months after she executed her Petition, Petitioner consistently asserted that the accurate and truthful ending of her “dating relationship” with Respondent was a full one year prior to the execution of her Petition. For these compelling reasons, it cannot be gainsaid that Petitioner made a false claim in her Petition, in answering question 1, in Section III of the Petition (at page 2).
13. The requirement of a dating relationship, within the six months prior to the filing of a petition alleging dating violence, is clearly statutorily jurisdictional, as noted in ¶3 above. Of course, because of that statutory requirement, it is also a mandatory term of the Petition – but it must be true and accurate, in order for the Court to have lawful jurisdiction.
14. Since Petitioner has conceded, in both her official communications with JSO, and under oath in her January 24 deposition, her dating relationship with Respondent ended in the summer prior to the August 20 Incident Report (and, indeed, she ended it – so she obviously controlled that date), not only was her Petition incorrect, but this Honorable Court was, and is, without jurisdiction to entertain a dating violence injunction. As such, this Motion to Dismiss is due to be granted.
C. Lack of Jurisdiction – Temporary Injunction Order Expired
15. As noted above, Petitioner filed her Petition on August 23.
16. On August 24, a Temporary Injunction for Dating Violence was issued (hereinafter “Order #1”) and a hearing was scheduled for September 6. The temporary injunction stated:
This injunction shall be effective until the hearing set above and in no event for longer than 15 days, unless extended by court order.
17. Thus, Order #1 one had, in effect, a sunset clause, automatically terminating its validity. Fifteen days from September 6 was September 21. Thus, the September 6 hearing was scheduled, and held, prior to the expiration of Order #1.” But for the timely scheduling of that hearing, by its own terms, Order #1 would have expired.
18. On September 6, the hearing was continued to September 27. An Order Extending Temporary Injunction was entered (hereinafter “Order #2”), extending the temporary injunction – but only through the date of that next hearing, September 27. Again, since Order #2 merely extended Order #1, it too was due to expire, under both the terms of the original Order #1, and by its own terms, absent a timely extension of Order #2 (as required by the original Order #1).
19. On September 27, the hearing on the Petition was continued to October 11. However, no order was entered on that date, extending the temporary injunction. Thus, by operation of law, and by the express terms of both Order #1 and Order #2, the temporary injunction expired.
20. On October 11 (14 days after the September 27 expiration of the temporary injunction), an Order Extending Injunction for Protection Against Dating Violence was entered (hereinafter “Order #3”), stating, “The previously entered injunction is extended until further order of the Court.” However, and respectfully, at that point in time, there was no injunction to extend, as the previously entered injunction expired on September 27. Thus, Order #3 was a nullity.
21. As a consequence, the original temporary injunction has expired, by both its terms and the terms of Order #2, such that this Court is without jurisdiction to act on the Petition. As such, this Motion to Dismiss is due to be granted.
WHEREFORE it is respectfully requested that this Motion to Dismiss be granted, and the proceedings in this case be terminated.