Bond v. Bond, 5D05-1556.

• Decision Date: 16 December 2005
• Docket Number: No. 5D05-1556.,No. 5D05-1715.,5D05-1556.,5D05-1715.
• Citation: 917 So.2d 268
• Parties: Gregory S. BOND, o/b/o N.B. and K.B., Minor, etc, Appellant, v. Robert C. BOND and Oma Bond, Appellee.
• Court: Florida Supreme Court

917 So.2d 268

Gregory S. BOND, o/b/o N.B. and K.B., Minor, etc, Appellant, v. Robert C. BOND and Oma Bond, Appellee.

No. 5D05-1556.

No. 5D05-1715.

District Court of Appeal of Florida, Fifth District.

December 16, 2005.

Phil A. D'Aniello, of Fassett, Anthony & Taylor, P.A., Orlando, for Appellant.

Mark Reyes, of Howard & Reyes, Chartered, Sanford, for Appellee.

MONACO, J.

The principal issue in this appeal concerns the jurisdiction of the circuit court to consider a petition for injunction against domestic violence. Because the trial court declined to exercise that jurisdiction without allowing the petitioner to have an opportunity to demonstrate that the case was within the court's jurisdiction, we reverse.

The facts are somewhat confusing because of the awkward procedural posture of the case. Gregory Bond, father, on behalf of N.B. and K.B., minors, filed a petition for injunction for protection against domestic violence against the respondents, Robert Bond and Oma Bond, who are his parents, and the grandparents of the children (Case No. 0678). According to the petition, the grandfather appeared at the children's school and tried to take them with him without permission and against the express wishes of the parents. The parents asserted that Robert Bond's medical condition created a threat to the safety of the children since he had been diagnosed as "bipolar," and had earlier taken some rather aggressive actions.

Petitioner stated that he was fearful that harm could come to his children unless Robert Bond was ordered to stay away. The petition alleged that Robert Bond was supposed to take medication for mental health problems, but that he was not currently doing so. A letter from Gregory and Jane Bond concerning their children and the actions of his father and mother was attached to the petition. This letter, which detailed various concerns that the petitioners had, was originally given to the principal of the elementary school attended by the children. The trial court's reaction to the petition was simply to enter an order denying the injunction.

One month later Gregory Bond, on behalf of N.B. and K.B., filed his verified amended petition for injunction for protection against domestic violence in Case No. 0678. Apparently, the respondents again appeared at the children's elementary school unannounced and without permission. They purportedly made repeated gestures to the minor children in an unsuccessful attempt to get them to leave the school grounds with them. The respondents returned again on the following day, and only left when confronted by teachers who demanded that they leave the school property.

On the day after the verified amended petition for injunction against domestic violence was filed, Gregory Bond, on behalf of N.B. and K.B., filed an emergency verified ex parte motion for a temporary restraining order in Case No. 0678. This motion alleged that his minor children were at great risk of harm and possibly of kidnapping by the respondents. The motion for a temporary restraining order referenced the amended petition for a domestic violence injunction and incorporated it by reference. It said, as well, that the petitioner feared that his parents would kidnap and remove the children from Florida. He indicated that the respondents were residents of Michigan, and that they had sufficient resources to accomplish their goal.

In short, the petitioner was afraid to send the children to elementary school or to allow them to play outside of their house because of the presence of the respondents. In this motion the petitioner asked the court to enter a temporary restraining order prohibiting the respondents from coming within 1,000 feet of the minor children or the minor children's home, school or church. This same motion was refiled as an emergency verified "petition" for a temporary restraining order about two weeks later.

Meanwhile, the petitioner also filed an Emergency Verified Petition For Temporary Restraining Order "to prevent the harassment, removal, and contact" of and with his children by the respondents. This new petition commenced Case No 0605. The facts alleged in support of the petition are essentially unchanged from those contained in Case No. 0678.

The circuit court eventually entered a temporary injunction in Case No. 0605, finding that irreparable injury, loss, or damage would result to the minor children if an ex parte temporary injunction was not issued. Both Robert and Oma Bond were enjoined from having any further contact with the minor children. The order gave the respondents notice that they could file a motion to dissolve or modify the temporary injunction, but in any case, whether or not a motion to dissolve was filed, the petitioner and respondents were instructed to appear and testify at a hearing scheduled by the court in the domestic court case (Case No. 0678). The court indicated at that time that it would consider the petition for permanent injunction, as well as decide whether the court should continue, modify, or dissolve the in-place temporary injunction.

At the commencement of the hearing, the court abruptly related that it would not assume jurisdiction over a domestic violence issue.

The Court: Alright. Have you guys had a chance to discuss this and see if you can work out terms? This is a civil injunction, not a temporary domestic violence hearing. I refuse to take jurisdiction over a domestic violence issue. It is a civil injunction. Are you ready to go?

Mr. Beaver: Well, Your Honor, what I have before me is the motion for a domestic violence injunction.

The Court: I know.

Mr. Reyes: Your Honor, I therefore move to dismiss.

The Court: Denied twice. But I set it for a temporary injunction under civil restraining order, case number 0, cause, CA605, for today.

Mr. Beaver: And, Your Honor, I am not in a position to dispute that in any way but I don't have that, Your Honor, and I was informed on discussing this case that the temporary restraining order was not pursued simply because of the lapse of time due to spring break and vacation, so the children were not an immediate issue —

The Court: How do I have jurisdiction over this case under the domestic violence scene?

Mr. Beaver: Well, Your Honor —

The Court: Because I have not seen jurisdiction yet. You're going to have to argue that one for me.

The court raised the jurisdictional issue because it did not understand how the parties involved in the domestic relationship came within the applicable statute. Section 741.30, Florida Statutes (2005), creates a cause of action for an injunction for protection against domestic violence. Subparagraph (1)(e) allows an injunction to be sought by "family or household members." Section 741.28(3), Florida Statutes (2005), defines "family or household members" to include a number of persons, including "persons who...