Achurra v. Achurra
2012 Fla. App. LEXIS 2467
| Fla. Dist. Ct. App. | 2012Background
- Mrs. Achurra filed a sworn petition March 31, 2011 seeking a domestic-violence injunction against Mr. Achurra.
- The trial court issued an ex parte temporary injunction and scheduled an evidentiary hearing.
- At the hearing, counsel sought judicial notice of a prior April 13 dissolution hearing to avoid redundant testimony, and the court indicated it would review the other file and file the transcript.
- Mr. Achurra appeared without counsel and did not object to the judicial-notice request.
- The court did not issue oral findings of fact at the hearing; a different circuit judge later issued the final injunction order.
- The petitioner presented no evidence at the petition hearing, and the record on appeal lacks the April 13 transcript relied upon by the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the final injunction is supported by the record. | Achurra contends the injunction rests on insufficient evidence. | Achurra argues no adequate findings or evidence support the injunction. | Reversed for lack of competent substantial evidence. |
| Whether the trial court properly made findings of fact for DV-injunction criteria. | Achurra claims insufficient or missing factual findings. | Achurra asserts the record failed to show justified grounds for protection. | Not preserved for review; court still reverses due to evidentiary deficiency. |
| Whether the trial court properly took judicial notice of the prior dissolution proceeding. | Achurra did not object; relies on court’s notice. | No proper preservation or explicit findings on notice. | Issue not preserved; nevertheless record lacks evidentiary support. |
Key Cases Cited
- Celentano v. Banker, 728 So.2d 244 (Fla. 4th DCA 1998) (failure to object waives appellate review of admission of contested evidence)
- DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980) (preservation rule for appellate review of evidence)
- Trowell v. Meals, 618 So.2d 351 (Fla. 1st DCA 1993) (adequate findings supported by the record required for injunctions)
- Puskar v. Puskar, 29 So.3d 1201 (Fla. 1st DCA 2010) (de novo review of legal conclusions on DV injunctions)
- Ambrefe v. Ambrefe, 993 So.2d 98 (Fla. 2d DCA 2008) (burden on petitioner to prove entitlement to relief)
- Jonsson v. Dickinson, 46 So.3d 1016 (Fla. 1st DCA 2010) (preservation and opportunity to cure deficiencies in record)
- Mize v. Mize, 45 So.3d 49 (Fla. 1st DCA 2010) (need for adequate findings when relief denied or granted)
- Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007) (stands for need for evidentiary support in DV injunctions)
- Bresch v. Henderson, 761 So.2d 449 (Fla. 2d DCA 2000) (record must provide basis for conclusions of law to affirm final injunction)
- Gustafson v. Mauck, 743 So.2d 614 (Fla. 1st DCA 1999) (supporting necessity of competent substantial evidence)