Mary C. Schmigel v. Carson Wade Schmigel
404 So.3d 623
Fla. Dist. Ct. App.2025Background
- Mary C. Schmigel (now Mary Kirkland) appealed two final domestic violence injunctions issued against her in favor of Carson Wade Schmigel and Carson Schmigel on behalf of their minor child, H.S.
- The injunctions stemmed from family law proceedings in Jefferson County, Florida, following the parties’ dissolution of marriage.
- During the final hearing, the minor child, H.S. (age 16), attended and testified without a pre-hearing court order as required by Florida Family Law Rule of Procedure 12.407(a).
- Appellant argued her due process rights were violated because no court order permitted the child’s attendance and testimony.
- The final hearings for both injunctions were held simultaneously and included notice to all parties; Appellant’s counsel raised but did not object to the issue before testimony began.
- The trial court found H.S.’s testimony credible and entered final injunctions against Appellant.
Issues
| Issue | Schmigel's (Plaintiff's) Argument | Schmigel's (Defendant's) Argument | Held |
|---|---|---|---|
| Whether allowing H.S. to testify without a prior court order violated due process | Rule requires a court order for child participation; due process includes this protection | Protection under rule is for child, not defendant; child was a party/witness and wanted to testify | No due process violation; rule 12.407(a) protects children, not respondent’s due process |
| Whether personal notice and opportunity to cross-examine satisfy due process | Lack of court order deprived Appellant due process | Appellant had notice, heard testimony, and cross-examined H.S. | Due process satisfied; Appellant had all procedural opportunities |
| Applicability of rule 12.407(a) to respondent’s due process rights | Rule creates procedural rights for parents/respondents | Rule aims to protect children from harm by unnecessary involvement | Rule does not expand respondent parent’s due process rights |
| Harm or prejudice from child’s participation without order | Violation presumed due to procedural defect | No prejudice; no argument or showing of harm to H.S. | No showing of harm or prejudice; affirm judgment |
Key Cases Cited
- Lopez v. Regalado, 257 So. 3d 550 (Fla. 3d DCA 2018) (court reviews due process claims de novo in domestic violence injunctions)
- Furry v. Rickles, 68 So. 3d 389 (Fla. 1st DCA 2011) (due process in injunction hearings includes testimony and cross-examination rights)
- Smith v. Smith, 964 So. 2d 217 (Fla. 2d DCA 2007) (reversal required when a respondent is denied opportunity to call witnesses or testify)
- Sanchez v. Marin, 138 So. 3d 1165 (Fla. 3d DCA 2014) (due process requires adequate notice of allegations in domestic violence cases)
- A.V. v. T.L.L., 321 So. 3d 940 (Fla. 2d DCA 2021) (rule 12.407 intended to protect children from harm by unnecessary involvement)