ROBINSON v. VILLAREJO (2006)

In this appeal, Christina Robinson challenges a final judgment of injunction for protection against domestic violence and the trial court's subsequent order denying her motion for rehearing, wherein she claimed a lack of notice of the hearing that resulted in the final judgment.   We reverse and remand for an evidentiary hearing on Robinson's claim of lack of notice of the injunction hearing.

Following a December 7, 2004 hearing, at which the former wife and mother, Christina Robinson, and her counsel did not appear, the trial court entered a final judgment of injunction for protection against domestic violence against Robinson and in favor of appellee Carlos R. Villarejo, the former husband and father.   Robinson timely filed a motion for rehearing, arguing, among other things, that she had not received notice of the hearing that resulted in the judgment. The motion alleged that Robinson was never served with notice of the hearing;  that the letter terminating the representation of her original counsel made no mention of the hearing;  and that a review of the file conducted by her new counsel reflected no notice of the hearing.   Attached to the motion was a print-out from the sheriff's office web site reflecting the mother had not been served with the “EXTENSION ON INJUNCTION W/PET & FIN.” Although nothing in the record refuted the claimed lack of notice, the trial court summarily denied the motion.   In this appeal, Robinson insists the trial court should not have denied her motion for rehearing without affording her an evidentiary hearing.   We agree.   See Elmariah v. Assocs. Fin. Servs. Corp., 401 So.2d 929, 929 (Fla. 2d DCA 1981) (reversing denial of motion for rehearing claiming lack of notice of hearing that resulted in judgment and stating “[t]he question of whether or not notice was received by the appellant or his attorney is of sufficient import to justify an evidentiary hearing”).

Accordingly, the order on appeal is reversed and the matter is remanded for an evidentiary hearing on Robinson's claim that she did not receive notice of the hearing that resulted in the final judgment of injunction.

Reversed and remanded.

PER CURIAM.

STEVENSON, C.J., FARMER, J., and MARX, KRISTA, Associate Judge, concur.