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WEBINAR DOMESTIC VIOLENCE CASE LAW UPDATE—2018

A. DOMESTIC VIOLENCE INJUNCTIONS

1. There was insufficient evidence to enter an injunction for protection against domestic

violence. The Petitioner testified that shots were filed at her house and also that her

car had been vandalized. The Petitioner admitted that she did not see the

Respondent commit any of these acts. Also, the Petitioner testified that the

Respondent busted her lip a couple of years prior to her filing the Petition for

Injunction for Protection against domestic violence, which act the Respondent

denied. In any event, the appellate court determined that even if the Respondent

had busted the Petitioner’s lip, this isolated act of domestic violence that occurred

almost two years prior to the filing of the Petition will not support issuance of an

injunction without evidence that the Respondent committed other current acts of

domestic violence. Leaphart v. James, 185 So.3d 683 (Fla. 2d DCA 2016).

2. The Petitioner filed for a domestic violence injunction in January, 2016, and alleged

that in 2012 when the parties were dating the Respondent threw a drink at her and

punched her in the face. The Petitioner also alleged that the Respondent repeatedly

attempted to contact her through Facebook and via telephone. In addition, the Petitioner

alleged that her job as a traffic aide would allow the Respondent to cause the Petitioner

harm. There were no allegations that the Respondent threatened the Petitioner in any

way when she attempted to contact the Petitioner via Facebook.

The appellate court determined that even if the Respondent had thrown a drink at

the Respondent and punched her in 2012, an isolated act of domestic violence that

occurred years prior to the filing of the Petition will not support issuance of an

injunction without evidence that the Respondent committed other current acts of

domestic violence. The alleged acts of domestic violence are too remote to be

considered reasonable cause to believe that the Petitioner was in imminent danger of

becoming a victim of domestic violence. The allegations that the Respondent might

harm the Petitioner while the Petitioner is working as a traffic aide are simply too vague

to provide competent substantial evidence of a reasonably objective fear. Further, none

of the evidence presented regarding the Respondent’s attempts to contact the Petitioner

established that the Respondent had engaged in conduct that was threatening or might

otherwise reasonably place the Petitioner in fear. Zapiola v. Kordecki, 210 So.3d

249 (Fla. 2d DCA 2017).

3. Trial court erred when it entered a Final Judgment of Injunction for Protection Against

Domestic Violence. The parties had previously resided together. Approximately one

and one-half years after the Respondent left the Petitioner’s home the Petitioner

sought a domestic violence injunction based upon a single act of violence that

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allegedly occurred when the parties resided together. However, an isolated incident

of domestic violence that occurred years before the filing of the petition will not

usually support issuance of the injunction absent current allegations. The

Petitioner’s current allegations did not support a reasonable fear of imminent

domestic violence. Battaglia v. Thompson, 203 So.3d 1018 (Fla. 2d DCA 2016);

Malchan v. Howard, 29 So.3d 453 (Fla. 4th DCA 2010); Mantell v. Rocke, 179

So.3d 511 (Fla. 1st DCA 2015).

4.

The Battaglia court quoted language from prior cases, to-wit: generalized threats

to engage in unpleasant, but not violent, behavior are not sufficient to support the

issuance of a domestic violence injunction. Gill v. Gill, 50 So. 3d 772 (Fla. 2d DCA

2010). Also, "mental instability, a bad temper, depressive and suicidal statements,

angry messages, vague actions, and general conditional future threats without overt

action implying imminence" are legally insufficient to support the entry of an

injunction. Also see Mitchell v. Mitchell, 198 So.3d 1096 (Fla. 4th DCA 2016).

5. Trial court erred in vacating a predecessor judge's final order dissolving a domestic violence injunction against Respondent and in thereafter pursuing indirect criminal contempt charges against him for not attending a compliance hearing on the previously dissolved injunction. Once the injunction was dissolved at the request of the Petitioner after an evidentiary hearing at which the predecessor judge presided, the Respondent was not required to comply with the injunction and the successor judge was not authorized to reinstate it sua sponte or punish the Respondent for not complying with it or attending compliance hearings related to it. The trial court did not have jurisdiction to take any action on the injunction after it had been dissolved in the absence of any new proceeding instituted by a party. Berrien v. State, 189 So.3d 285 (Fla. 1st DCA 2016).

6. When trial court entered an order suspending the father’s time sharing with the parties’ child as part of an injunction for protection against domestic violence the court erred because the order did not set forth what the father needed to do in order to reestablish time sharing with the child. Forssell v. Forssell, 188 So.3d 880(Mem) (Fla. 4th DCA 2016).

7. Chapter 741.30, Florida Statutes, does not allow the trial court to enter a series of temporary injunctions in lieu of a permanent injunction. Further, a temporary order of injunction for protection against domestic violence requires a future hearing date. Whyce v. Petithome, 190 So.3d 685 (Fla. 3d DCA 2016).

8. Although evidence was sufficient for the entry of a permanent injunction for protection against domestic violence, there was no basis for the court to enjoin the

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Respondent from having contact with the Petitioner’s family members. Thomas v. Biggers, 188 So.3d 974 (Mem) (Fla. 5th DCA 2016).

9. Trial court denied the Respondent due process when it entered an Amended Final Judgment of Injunction for Protection Against Domestic Violence sua sponte without any pleadings seeking any changes to the original judgment. No notice was provided to the Respondent. The trial court’s amended final judgment awarded 100% of the time sharing with the minor child to the Petitioner. Butler v. Cabassa, 186 So.3d 1114(Mem) (Fla. 4th DCA 2016).

10. The fact that a daughter does not wish to see or interact with her mother is not a

basis for the issuance of a domestic violence injunction. Neither is it sufficient that

the mother may have violated an order entered in a domestic relations case. Hair

v. Hair, 159 So.3d 984 (Fla. 4th DCA 2015).

11. Domestic violence injunction should have been dissolved 14 years after its entry

when the parties’ child is now 20 years old and the events that led up to the entry of

the injunction occurred during an exchange of the minor child. During the term of

the injunction the Respondent never violated the injunction and the Respondent had

not attempted to contact the Petitioner. The continuation of the injunction would

serve no valid purpose. Bush v. Henney, 175 So.3d 930 (Fla. 4th DCA 2015).

12. Trial court did not abuse its discretion in not dissolving a domestic violence injunction that had been entered approximately 15 years earlier, despite changed circumstances. The Respondent claimed that due to his incarceration (he was incarcerated in 2010) he had no contact with the Petitioner for years. However, the party seeking to dissolve an injunction must demonstrate that the situation underlying the injunction no longer exists and that continuation of the injunction would serve no valid purpose. The party opposing dissolution of the injunction must demonstrate that he or she reasonably maintains a fear of becoming the victim of domestic violence. In the instant case the Petitioner testified about numerous violations of the injunction over the years and her continuing fear of becoming the victim of domestic violence when the Respondent is released from prison, which was scheduled to occur in five years. The appellate court drew distinctions between this case and other cases where injunctions entered years earlier have been dissolved. It was important to the court that in the instant case there had been, according to the Petitioner, numerous incidents where the injunction was violated. Noe v. Noe, 217 So.3d 196 (Fla. 1st DCA 2017).

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13. Entry of domestic violence injunction upheld but trial court should not have required the Respondent to surrender all ammunition and weapons in his care, custody, possession, or control, as the Respondent was a law enforcement officer. However, the exemption found in Chapter 790.233(3), Florida Statutes, only applies to “firearm[s] or ammunition for use in performing official duties on behalf of the officer's employing agency,” and therefore the trial court could still provide limitations on any personal firearms or ammunition in the Respondent’s possession. Martinez v. Izquierdo, 166 So.3d 947 (Fla. 4th DCA 2015).

14. Woman sought injunction for protection against domestic violence based upon the

Respondent’s alleged cyberstalking. “Cyberstalking” means to engage in a course

of conduct to communicate, or to cause to be communicated, words, images, or

language by or through the use of electronic mail or electronic communication,

directed at a specific person, causing substantial emotional distress to that person

and serving no legitimate purpose. Chapter 784.048(1)(d), Florida Statutes. The

Petitioner alleged that she was the victim of cyberstalking based on two posts on the

Respondent’s Facebook page. The first post contained the lyrics to a song. The

second post contained the text of a private message conversation that the Petitioner

had with a third party via her own Facebook account. The Petitioner testified that

these posts showed that the Respondent either “hacked” her computer or was

somehow spying on her because she had recently been listening to the song on her

personal computer in the privacy of her own home and because her private message

conversation would have only been observable by accessing her personal Facebook

account. She also testified that unbeknownst to her, there was a keylogger program,

which would track her computer use, installed on her personal computer. She did

not present any evidence that the Respondent actually installed the keylogger

program.

The Respondent’s Facebook posts do not meet the statutory definition of

cyberstalking. First, the posts that were on the Respondent’s facebook page were

not directed at a specific person. See Chapter 784.048(1)(d), Florida Statutes. The

information was posted to the Respondent’s own facebook page. The Petitioner was

not “tagged” or mentioned in the posts nor were the posts directed to her in any

obvious way. Posts to one's own Facebook page are not directed at a specific

person but are instead posted for all of the user's Facebook “friends” to see,

depending on the user's privacy settings.

Also, the Petitioner failed to show that the posts caused her “substantial emotional distress”. See Chapter 784.048(1)(d), Florida Statutes. The only testimony from the Petitioner on this point was that the posts were a matter of concern to her and that they prevented from her from having any privacy within her own home. The court considered her testimony as to her reaction to the posts to be conclusory and vague. Horowitz v. Horowitz, 160 So. 3d 530 (Fla. 2d DCA 2015).

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15. The trial court should have conducted an evidentiary hearing with regard to the Respondent’s motion for relief from judgment brought pursuant to F.R.C.P. 1.540, even though the domestic violence injunction had expired by its own terms. Because of the collateral consequences that may flow from the domestic violence injunction, such cases are an exception to usual rule of mootness. A case is “moot” when it presents no actual controversy or when the issues have ceased to exist. Black's Law Dictionary 1008 (6th ed. 1990). A moot case generally will be dismissed. Jacquot v. Jacquot, 183 So.3d 1158 (Fla. 5th DCA 2015).

16. The Respondent’s due process rights were violated when the trial court allowed the Petitioner to testify over the Respondent’s objections about various acts of domestic violence that were not plead and where the Respondent had no knowledge that these incidents would be used by the Petitioner to attempt to obtain a domestic violence injunction. De Leon v. Collazo, 178 So.3d 906 (Fla. 3d DCA 2015).

17. Petition for Injunction for Protection Against Domestic Violence alleged that the

Respondent had physically assaulted the Petitioner countless times throughout their

relationship, slapped and punched her, pushed her and shoved her and/or pinned

her on the floor or against the walls. These allegations were in addition to allegations

about one incident in particular. The Respondent’s argument that the Court denied

him due process by considering the Petitioner’s testimony regarding prior incidents

other than the one specifically alleged was without merit. In order to enter a final

judgment of injunction for protection against domestic violence the court must find

that the Petitioner has been the victim of domestic violence or has a reasonable fear

that domestic violence is imminent. Faddis v. Luddy, 221 So.3d 758 (Fla. 3d DCA

2017).

18. Respondent’s due process rights were violated when a domestic violence injunction was entered based upon allegations contained in an affidavit that was never provided to the Respondent and when the Respondent had less than three business days’ notice of the final hearing. Vaught v. Vaught, 189 So.3d 332 (Fla. 4th DCA 2016).

19. Trial court erred when it summarily denied without hearing the Respondent’s motion to dissolve a final judgment of injunction for protection against domestic violence. The Respondent was entitled to a hearing. Palm v. Palm, 214 So.3d 792 (Fla. 5th DCA 2017); Gaynor v. Inod ex rel. Thornton, Case No. 1D17-1426 (Fla. 1st DCA 2017). This rule also applies with regard to motions to modify or dissolve other types of civil orders of protection, such as repeat violence injunctions. Alston v. Haines,

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215 So.3d 1292 (Fla. 5th DCA 2017); Leija v. Byrd, Case No. 1D17-1512 (Fla. 1st DCA 2018).

20. Trial court erred when it relied upon non-record evidence from other cases involving the same parties to support issuance of a Final Judgment of Injunction for Protection Against Domestic Violence. The trial court should have taken judicial notice of those other records pursuant to Chapter 90.204, Florida Statutes, and made them part of the record in the instant case. Carrillo v. Carrillo, 204 So.3d 985 (Fla. 5th DCA 2016).

21. In order to dissolve a Final Judgment of Injunction for Protection Against Domestic Violence the moving party must allege and prove a change in circumstances. A motion to modify or dissolve a domestic violence injunction is not be used to challenge the initial decision to enter the injunction. Moriarty v. Moriarty, 192 So.3d 680 (Mem) (Fla. 4th DCA 2016); Hamane v. Elofir, Case No. 5D16-4211 (Fla. 5th DCA 2017).

22. Trial court should have allowed the Respondent to appear telephonically at a hearing

on a motion to modify an injunction for protection against domestic violence. The

Respondent had brought to the court’s attention his desire to appear telephonically,

as the Respondent was incarcerated. Potchen v. Potchen, 200 So.3d 178 (Fla. 5th

DCA 2016).

23. Trial court should not have summarily denied a petition for an injunction for protection

against domestic violence. The court should have conducted a hearing on the

petition or explained in writing in what way the petition is legally insufficient. This

also applies to other types of civil orders of protection, including injunctions seeking

protection against stalking. Chizh v. Chizh, 199 So.3d 1050 (Fla. 4th DCA 2016);

Vitale v. Holmes, Case No. 4D17-1462 (Fla. 4th DCA 2017).

24. Trial court’s decision to enter a final judgment of injunction for protection against

domestic violence in favor of the former husband was upheld. The trial court is

afforded broad discretion in granting, denying, dissolving, or modifying injunctions,

and unless a clear abuse of discretion is demonstrated, an appellate court must not

disturb the trial court's decision. Duran v. Duran, 208 S.3d 291 (Fla. 3d DCA 2016).

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25. The parties had been having problems in their relationship for some time. When

they were still living together, the Respondent would not let the Petitioner work, have

friends, or have a relationship with her family. The Respondent would control the

Petitioner’s time and money. When the Respondent finally let the Petitioner work, he

would accuse her of being somewhere else if she were five minutes late. The

Petitioner testified that the last time the Respondent hit her was in 2015, and when

the Petitioner finally ended the relationship for good in August 2015, the Respondent

threatened to leave her without her car, license plate, and money. Just prior to the

filing of the Petition, the Respondent came toward the Petitioner using offensive

expressions and ordering their son to take his backpack. The Petitioner asked the

Respondent to take the backpack instead as it was very heavy. The Respondent

continued to use offensive language so the Petitioner put the bag down and turned

to leave. The Respondent ran up to the Petitioner and said "f**kin'A, I'm going to

destroy your life, you don't know who I am, my name is ************ with a capital I.

Your mother and your father are going to cry. And you are safe because you are the

mother of my son, if not I will destroy your life.” From this evidence, the Petitioner

established reasonable cause to believe she was in imminent danger of becoming a

victim of domestic violence. Leal v. Rodriguez, 220 So.3d 543 (Fla. 3d DCA 2017).

26. The Petitioner and the Respondent’s counsel appeared at the scheduled hearing on

the Petitioner’s request for a domestic violence injunction. The Respondent’s

counsel did not know the whereabouts of the Respondent and requested a short

continuance which was denied. The only evidentiary basis for the entry of the

injunction was the Petitioner indicating at the hearing that she wanted an injunction

against the Respondent. The Respondent was denied due process when the

injunction was entered without giving him the opportunity to be heard. Further, the

injunction was entered without a sufficient evidentiary basis. The Petitioner’s

statement that she wanted an injunction is not legally sufficient for the entry of the

injunction. Newson v. Newson, 221 So.3d 1265 (Fla. 1st DCA 2017).

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B. STALKING INJUNCTIONS

1. A person who willfully, maliciously, and repeatedly follows, harasses, or

cyberstalks another person commits the offense of stalking. Chapter 784.048(3),

Florida Statutes. "'Harass” means to engage in a course of conduct directed at a

specific person which causes substantial emotional distress to that person and

serves no legitimate purpose. Chapter 784.048(1)(a), Florida Statutes. Further,

Chapter 784.048(1)(b), Florida Statutes, defines "course of conduct" as "a pattern

of conduct composed of a series of acts over a period of time, however short, which

evidences a continuity of purpose. Generally, contact is legitimate when there is

a reason for the contact other than to harass the victim. The Respondent had

texted the Petitioner that he (after attending film school) was producing a

documentary that featured the Petitioner and not in a flattering light. The film

contained Instagram photographs of the Petitioner that the Respondent had

access to. This was considered to be “legitimate” contact and therefore the

injunction should not have been entered. O'Neill v. Goodwin, 195 So.3d 411

(Fla. 4th DCA 2016).

2. Evidence was insufficient for the entry of a stalking injunction where the

Respondent banged on the Petitioner’s door and left her a check and a letter.

Using a reasonable person standard such conduct would not cause a person to

suffer substantial emotional distress. Also, for the court to enter an injunction for

protection against stalking the Petitioner must allege and prove two separate

instances of stalking. David v. Schack, 192 So.3d 625 (Fla. 4th DCA 2016).

Evidence was insufficient for entry of injunction for protection against stalking and

consequently trial court was reversed. Stalking by definition requires repeated acts

to constitute one act of stalking. Although Respondent followed the Petitioner, he

did so while he was talking to the police and he was following her because there

was a warrant for her arrest for violating an injunction he previously obtained

against her. Also, the evidence showed that he drove past her house only time,

which is insufficient to show a malicious course of conduct serving no legitimate

purpose. This case has a good discussion about statutory definition of stalking

and makes clear that in order to enter an injunction for protection against stalking

it is not necessary that there be more than one act of stalking. Pickett v.

Copeland, Case No. 1D17-293 (Fla. 1st DCA 2018).

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4. Injunction for Protection Against Stalking was entered by the trial court and

included a provision that the Respondent was prohibited from lingering on his

driveway. A court should not issue an injunction broader than necessary to protect

the Petitioner. In the instant case the prohibition against the Respondent lingering

in his driveway was overly broad, as it encompasses conduct that might be

perfectly legal as well as conduct that could constitute stalking. The matter was

remanded to the trial court to enter an injunction that was not overly broad. Smith

v. Wiker, 192 So.3d 603 (Fla. 2d DCA 2016).

5. Instead of summarily dismissing the Petition for Injunction for Protection Against

Stalking the trial court should have set an evidentiary hearing. The petition alleged

that the parties lived together for several years prior to 2014, and that the

Respondent was employed by the Petitioner’s company. In 2014 their relationship

dissolved, and the Respondent’s employment was terminated. Thereafter the

Respondent began to make threats against the Petitioner, her business, and her

employees through harassing phone calls and by showing up at job sites. In

November 2015, the Respondent entered a plea of guilty to two counts of making

threatening phone calls against the Petitioner and he was sentenced to six months

of probation. As a condition of his probation, the Respondent agreed to cooperate

with the entry of a permanent injunction against stalking. The Petitioner also

alleged that the Respondent was seen outside of her home and office on several

occasions over the past several months. The Petition was facially sufficient and

the Petitioner was entitled to an evidentiary hearing. Fye v. Bennett, 193 So.3d

994 (Fla. 4th DCA 2016).

6. The Petitioner filed a petition for injunction for protection against cyberstalking.

Both parties either are or have been members of the same organization. At the

hearing on the Petition, the Petitioner testified that the Respondent sent emails

about the Petitioner and his family, partners, and former employees to members

of the organization. The emails consisted of links to articles, blog posts, or videos.

In some instances, the articles or blog posts were written by the Respondent. The

emails, articles, blog posts, and videos were derogatory. Copies of the emails

supported the Petitioner’s testimony. Further, the Petitioner testified that none of

the emails were sent directly to him but that he knows about them because they

were forwarded by the recipients to him or he received phone calls about them.

The emails, articles, blog posts, and videos did not contain threats against the

Petitioner but he testified that the content of the emails, articles, blog posts, and

videos caused him emotional distress; he had trouble sleeping and eating, the

emails were constantly on his mind, and he constantly had to defend himself to

people.

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The emails do not meet the statutory definition of cyberstalking. The emails were

not directed to the Petitioner and he was not the intended recipient of the emails.

The Respondent did not communicate words, images, or language via email or

electronic communication directly to the Petitioner. Also, the court did not believe

that a reasonable person would suffer substantial emotional distress from the

emails and other materials, even though they may contain false allegations and

embarrassing information. Where comments are made on an electronic medium

to be read by others, they cannot be said to be directed to a particular person.

Scott v. Blum, 191 So.3d 502 (Fla. 2d DCA 2016).

7. The parties had an ongoing business dispute. Because the injunction for

protection against stalking prohibited communication not just to the Petitioner but

also about the Petitioner, it violated the First Amendment. This is so even if the

speech is offensive or defamatory. Further, given the context in which certain texts

were sent by the Respondent to the Petitioner, the court believed that the texts did

not contain any threats to the Petitioner. David v. Textor, 189 So.3d 871 (Fla. 4th

DCA 2016).

8. The Respondent did not attend the evidentiary hearing on whether a final judgment

of injunction for protection against stalking should be entered. The court heard the

Petitioner’s testimony and then entered an injunction. The Respondent did not

appeal but filed a motion for relief from judgment. He alleged he had low-to-

average intelligence with an overall IQ of 88, and his verbal and comprehension

deficits rendered him unable to understand the meaning of the temporary

injunction and notice of hearing. The appellate court concluded that the

Respondent demonstrated excusable neglect and was entitled to relief from the

final judgment of injunction for protection against stalking. Richards v. Crowder,

191 So.3d 524 (Fla. 4th DCA 2016).

9. Injunction for Protection Against Stalking should not been entered in favor of one

neighbor against another. There was no evidence that the Respondent used, or

threatened to use, any weapons such as guns or knives against the Petitioner.

There was no proof that the Respondent destroyed personal property belonging to

the Petitioner. There was evidence that the Respondent had engaged in

unneighborly behavior, such as turning on a pressure washer, climbing on the roof

of his shed and laughing at the Petitioner and guests at her home. Also, the

Respondent threw garbage on the Petitioner’s property and laughed at her.

Although such behavior may be irritating it does not rise to the level necessary to

enter an injunction for protection against stalking. Richards v. Gonzalez, 178

So.3d 451 (Fla. 3d DCA 2015).

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10. The Petitioner suffered from various mental disorders including schizoaffective and

bipolar disorders. She sought an injunction against her parents pursuant to

Chapter 741.30, Florida Statutes, alleging they previously harassed her as well as

threatened to bring litigation against individuals closely associated with her. The

trial court granted an injunction based upon her parents doing the following acts:

going to the Petitioner’s doctor's office to threaten litigation arising from a prior

Baker Act hearing; creating a "scene" and saying the case manager was subject

to "eternal damnation;" repeated unwanted phone calls to their daughter; and

seeking information about her life from others. In reversing the entry of the

injunction the appellate court stated that the aforementioned acts fail to satisfy the

statutory requirement that they support an objectively reasonable fear of the type

of malicious behavior the statute was designed to shield. When determining

whether an incident creates substantial emotional distress, courts must use a

reasonable person standard, not a subjective standard. The appellate court held

that the parents’ conduct amounts to the type of uncivil conduct that while causing

distress and annoyance is legally insufficient to justify intervention by the court

system. The law requires more than general relationship problems and uncivil

behavior to support the issuance of an injunction. Wills v. Jones, 213 So.3d 982

(Fla. 1st DCA 2016).

11. After a wife discovered that her husband was having an affair she contacted her

husband’s mistress by telephone and by Facebook messages. These contacts

were done to tell the mistress to stay away from her husband. Ultimately the

mistress sought and obtained an injunction for protection against stalking. The

appellate court reversed and determined that the contacts made by the wife to the

mistress served a legitimate purpose and therefore the conduct did not meet the

statutory definition of harassment set forth in Chapter 784.048, Florida Statutes.

Further, a reasonable person would not suffer substantial emotional distress from

the contacts made by the wife.

In addition, even though the wife did post (one time only) comments in a public

blog about the mistress, at best this was only incident of stalking which is not

sufficient under the statute for entry of an injunction. Leach v. Kersey, 162 So.

3d 1104 (Fla. 2d DCA 2015).

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12. Stalking injunction that prohibited the Respondent from accessing any social

media websites was overly broad. An injunction should never be broader than is

necessary to provide the injured party the relief warranted by the circumstances of

the particular case, without injustice to the party enjoined. Webb v. Jacobson,

175 So.3d 938 (Fla. 5th DCA 2015).

13. Injunction For Protection Against Stalking was overly broad in that it enjoined the

Respondent from posting any material about the Petitioner on the internet. This

was seen as unduly interfering with the Respondent’s freedom of speech.

Neptune v. Lanoue, 178 So. 3d 520 (Fla. 4th DCA 2015).

14. Injunction for Protection Against Stalking upheld where there was uncontroverted

evidence that the Respondent went to the Petitioner’s home for three consecutive

nights. Security camera footage showed him shining a flashlight into her home

while walking around her property. The Petitioner did not invite him to her property.

These three incidents, which were further verified by Respondent’s e-mail to the

Petitioner admitting to being at her residence, establish “a course of conduct”

sufficient to support the trial court's entry of the injunction. The Respondent’s

conduct caused substantial emotional distress and served no legitimate purpose.

Robertson v. Robertson, 164 So.3d 87 (Fla. 4th DCA 2015).

15. Under the “harassment prong” of the stalking statute, two incidents of harassment

are required to establish stalking. Further, contact is considered legitimate when there is

a reason for the contact other than to harass the victim. In the Petition for Injunction for

Protection Against Stalking the Petitioner alleged that the Respondent, who was the

significant other of the Petitioner’s sister: (1) broke into a home the Petitioner owned and

removed certain valuables; and (2) had an altercation with the Petitioner at the house,

wherein the Respondent threatened the Petitioner and grabbed and pushed the Petitioner.

The court entered a temporary injunction and set a hearing on the matter.

At the return hearing the Petitioner acknowledged that his sister did not know he

owned the home due their mother executing a quit claim deed in favor of the Petitioner

and the Respondent testified that he thought the mother still owned the home.

Although his petition alleged two incidents of stalking, four incidents were discussed

at the hearing: the respondent (1) went to the house on October 4th to obtain a copy

of the mother's will; (2) had an altercation with the Petitioner at the house on October

5th; (3) came to the house with police pursuant to a court order to pick up the sister's

possessions; and (4) made accidental "pocket dialed" phone calls. These events are

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legally insufficient to support a finding of stalking. The Petitioner was not present when

the Respondent went to the house to obtain a copy of the will and the Respondent

testified that he did not know the Petitioner owned the house. When the Respondent

came to the home with the police it was prearranged and when at the home the

Respondent did not speak to the Petitioner. Further, using a reasonable person

standard the referenced phone calls would not cause a reasonable person substantial

emotional distress. The calls were not willful or malicious as required. Lastly, the

events that occurred when there was an altercation at the Petitioner’s house were in

dispute and the Petitioner testified at the hearing to different facts than he originally

had told the police. Carter v. Malkin, 207 So.3d 891 (Fla. 4th DCA 2017).

16. Injunction for Protection Against Stalking should not been entered in favor of one

neighbor against another, as the statute does not allow the court to enter injunctions

for protection against stalking to “keep the peace” between the parties.

First, there was no evidence that the Respondent had been following the Petitioner,

which is a “prong” of the stalking statute. Testimony that the Respondent waited in his

car while the Petitioner’s wife was outside waiting for the Petitioner is too vague given

that the parties reside in the same complex. With regard to harassment, during an

argument the Respondent allegedly threatened to bust the Petitioner’s face, which the

Respondent denied. The Petitioner testified that on another occasion the Respondent

lunged toward the Petitioner’s car and threw some chemicals on the car, which act

was denied by the Respondent. Apparently the Petitioner did not actually see the

Respondent throw anything on his car. In addition, the Respondent had apparently

been in an argument with the Petitioner’s wife regarding condominium association

issues. The Petitioner also testified that the Respondent called him a wife beater and

that the Respondent closed windows on the catwalk at the condominium after the

Petitioner opened the windows. The Respondent testified that he was simply

sweeping an area on the catwalk that gathers dust. The Court made no finding

regarding the credibility of the parties but in any event the conduct complained of would

not cause a reasonable person substantial emotional distress. The court thought that

as it was a case of neighbors who could not get along, it was a case of “tit for tat” as

opposed to a “stalker-victim” situation. Klemple v. Gagliano, 197 So.3d 1283 (Fla.

4th DCA 2016).

17. Respondent was denied procedural due process when he was not allowed to call a

witness to testify on his behalf and he was not allowed to introduce into evidence text

messages between the parties. One of the allegations made by the Petitioner that led

to the entry of the temporary injunction for protection against stalking was that the

Respondent had made over 200 phone calls and text messages to the Petitioner. The

Respondent proffered that he wanted to introduce the text messages to show that he

had a well-meaning fear that the Petitioner would relapse into substance abuse.

Ceelan v. Grant, 210 So.3d 128 (Fla. 2d DCA 2016).

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18. Trial court erred when it entered a Final Judgment of Injunction for Protection Against

Stalking where there was no evidence of stalking and no stipulation to evidence of

stalking. The court did not enter an ex-parte injunction when the Petition was filed but

set the matter for an evidentiary hearing. The Respondent appeared at the evidentiary

hearing without an attorney and advised the Petitioner’s attorney that he was

agreeable to not contacting the Petitioner but he never agreed that he had stalked the

Petitioner. The Court went ahead and entered a Final Judgment purportedly based

upon the consent of the Respondent to its entry. After the final judgment was entered

the Respondent timely moved for a rehearing. The trial court should have granted a

rehearing and abused its discretion in denying the same. Burns v. Bockorick, 220

So.3d 438 (Fla. 4th DCA 2017).

19. Trial court erred when it entered an injunction for protection against stalking involving

neighbors, as one incident of harassment is not enough to enter an injunction for

protection against stalking. “Harass” means to engage in a course of conduct directed

at a specific person which causes substantial emotional distress to that person and

serves no legitimate purpose. Further, “course of conduct” means a pattern of conduct

composed of a series of acts over a period of time, which evidences a continuity of

purpose. Although the Respondent did make verbal threats to the Petitioner while

holding an unloaded gun, the injunction should not have been entered. As an aside,

the appellate noted that the evidence would not support the issuance of a repeat

violence injunction, which requires two incidents of violence or stalking committed by

the Respondent, one of which has occurred within six months of filing of the Petition.

Packal v. Johnson, Case No. 5D16-3183 (Fla. 5th DCA 2017).

20. Evidence was insufficient for entry of a permanent injunction for protection against

stalking. Incidents of stalking must be proven by competent, substantial evidence.

Although the Petitioner claimed to have documentation of numerous phone calls,

emails, and texts made and sent by the Respondent to the Petitioner, the record

contained no such documentation and the hearing transcript provided no indication

that the Petitioner provided any documentation to the trial court. Without knowing what

the alleged communications were it was not possible for the trial court to determine

whether the Respondent engaged in stalking or whether the communications would

have created substantial emotional distress under a reasonable person standard.

Reid v. Saunders, Case No. 1D16-4732 (Fla. 1st DCA 2017). Also see Akin v.

Jacobs, Case No. 5D17-1246 (Fla. 5th DCA 2017), wherein injunction for protection

against stalking was reversed due to lack of competent, substantial, evidence when

letters purportedly written by the Respondent to the Petitioner were not admitted into

evidence and the Petitioner did not testify that she suffered substantial emotional

distress. Also, an injunction for protection against stalking cannot be based upon

hearsay evidence.

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21. Harassment as set forth in Chapter 784.048, Florida Statutes, requires conduct

directed at a specific person. One woman was having an affair with another woman’s

husband. She repeatedly came to home of her lover and his wife in order to confront

the husband and to argue with him. Because these actions were not directed to the

man’s wife but were in fact directed toward him, the wife should not have been granted

an injunction for protection against stalking. Dixon v. Sermon, Case No. 2D16-3585

(Fla. 2d DCA 2017).

22. Injunction for Protection Against Stalking reversed when there was no evidence that

the repeated phone calls and texts from a man’s wife to his lover to get in touch with

her husband would cause a reasonable person to suffer substantial emotional distress.

Ashford-Cooper v. Ruff, Case No. 1D17-35 (Fla. 1st DCA 2017).

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C. REPEAT VIOLENCE INJUNCTIONS

1. Chapter 784.046(1)(b), Florida Statutes, provides that “repeat violence” means

"two incidents of violence or stalking committed by the respondent, one of which

must have been within 6 months of the filing of the petition, which are directed

against the petitioner or the petitioner's immediate family member." Both incidents

of violence or stalking must be proven by competent, substantial evidence.

Further, “violence” is defined by Chapter 784.046(1)(a) as any assault, aggravated

assault, battery, aggravated battery, sexual assault, sexual battery, stalking,

aggravated stalking, kidnapping, or false imprisonment, or any criminal offense

resulting in physical injury or death, by a person against any other person.

Respondent’s alleged anger issues and threats of having the Petitioner thrown in

jail, her act of screaming at Petitioner, her act of chasing Appellee and his dogs

down the sidewalk on one occasion, and her statement that "there is 1 in the

chamber and 8 more” were insufficient to justify entry of the final injunction. Mere

shouting and obscene hand gestures, without an overt act that places the victim in

fear, does not constitute the type of violence required for an injunction. Further,

even the statement that a party owns a gun and is not afraid of using it is insufficient

to support an injunction absent an overt act indicating an ability to carry out the

threat or justifying a belief that violence is imminent. Final Judgment of Injunction

for Protection Against Repeat Violence reversed. Corrie v. Keul, 160 So.3d 97

(Fla. 1st DCA 2015).

2. Final Judgment of Injunction for Protection Against Repeat Violence was affirmed

on appeal. The Petitioner was an employee of a clinic that performs abortions and

the Respondent was an individual that handed out literature concerning

alternatives to abortion outside of the clinic. The Petitioner testified at the final

hearing about several encounters with the Respondent as she walked from her car

into the clinic during which encounters the Respondent made derogatory

comments towards her. She also testified regarding an event where the

Respondent was in his car following her as she was driving home from the abortion

clinic. After making several turns from her normal path to confirm the Respondent

following her, the Petitioner testified that she was able to get away from him. The

Petitioner also testified about an incident a few weeks later in which she saw the

Respondent driving ahead of her into the residential community where she lived

and he waved at her as she passed by him inside the community. Finally, the

Victim testified about a flyer, a copy of which was attached to the petition. The flyer

contained a picture of the Victim and stated at the top “Pray for [Victim's full name]

[followed by Victim's picture] At [Victim's home address]” and stated at the bottom

“Ask [Victim's full name] to please stop assisting the abortionist with the killing of

black babies. The Petitioner testified that the Respondent was seen passing the

flyer out in the residential community where the victim lived a few weeks after he

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waved at her as she passed him in her car. In upholding the trial court’s decision

to enter an injunction, the Court rejected the Respondent’s argument that sending

the flyer to the Petitioner’s home was constitutionally protected speech and found

that it was an incident of harassing behavior. Chapter 784.0485, Florida Statutes,

provides that a person who willfully, maliciously, and repeatedly follows, harasses,

or cyberstalks another person commits the offense of stalking. Further, Chapter

784.048(2) provides that to harass is engaging in a course of conduct directed at

a specific person which causes substantial emotional distress to that person and

serves no legitimate purpose. Chapter 784.048(1)(b), Florida Statutes, defines

“course of conduct” as a pattern of conduct composed of a series of acts over a

period of time, however short, which evidences a continuity of purpose. The terms

does not include constitutionally protected activity such as picketing or other

organized protests. Thoma v. O'Neal, 180 So. 3d 1157 (Fla. 4th DCA 2015).

3. Modification of a Final Judgment of Injunction for Protection Against Repeat

Violence requires the moving party prove that there has been a change in

circumstances since the entry of the injunction. Washington v. Washington, 163

So.3d 742 (Fla. 1st DCA 2015).

4. Before entry of a Final Judgment of Injunction for Protection Against Repeat

Violence due process requires that the parties have a reasonable opportunity to

prove or disprove the allegations made in the complaint, including allowing relevant

testimony of pertinent, noncumulative witnesses who are present and allowing for

cross-examination of the parties. The trial court was reversed when it did not allow

the Respondent an opportunity to call a police officer as a witness or allow the

Respondent to proffer what the police officer’s testimony would be. Parise v.

Selph, 175 So.3d 389 (Fla. 1st DCA 2015); Snead v. Ansley, 160 So.3d 952 Fla.

1st DCA 2015).

5. Trial court should have allowed the Respondent to appear telephonically at a

hearing on his motion to modify an injunction for protection against repeat violence

when the Respondent had brought to the court’s attention his desire to appear

telephonically, as the Respondent was incarcerated. Havenner v. Hutchinson,

162 So.3d 1113 (Fla. 1st DCA 2015).

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6. “Repeat Violence” as defined by Chapter 784.046, Florida Statutes, includes

stalking. Injunction for Protection Against Repeat Violence should have been

entered when the Petitioner testified about two incidents in which the Respondent

choked her and she also testified that the Respondent showed up at her home and

her place of work in August and October 2015. In August, he also called her

repeatedly, sent her pictures of her house and threatened not to leave until she

spoke to him, and followed her when she was with her co-workers. In October, he

again followed her to her workplace, waited for her for hours, and then prevented

her from driving her car away by blocking her vehicle, while banging on her doors,

screaming profanities, and threatening to kill her. The Respondent did not attend

the evidentiary hearing and the trial court should have entered the injunction.

Austin v. Echemendia, 198 So.3d 1058 (Fla. 4th DCA 2016).

7. In determining whether to grant an extension of a repeat violence injunction, the

trial court is not limited to determining whether the respondent committed

additional acts of violence during the pendency of the initial injunction. Instead,

the appropriate analysis focuses on whether the petitioner's professed continuing

fear of future violence is reasonable under the circumstances. In making this

determination, the trial court looks to both the respondent's conduct during the

pendency of the injunction as well as the circumstances that led to the granting of

the initial injunction. The Respondent had been prosecuted for battery upon the

Petitioner and upon the Respondent’s completion of a pre-trial diversion program

the Petitioner began receiving harassing phone calls at his home in the middle of

the night and the Petitioner also testified that the week before the hearing, the

Respondent confronted the Petitioner’s current wife at a store, calling her names

and making an obscene gesture at her. The repeat violence injunction was

properly extended. Kirton v. McKissick, 120 So.3d 193 (Fla. 5th DCA 2013).

8. Evidence was insufficient for entry of injunction for protection against repeat

violence when the Petitioner was able to establish only one incident of violence

(battery) and one incident of “following” by the Respondent. Stalking requires that

the Respondent repeatedly follow, harass, or cyberstalk the Petitioner. The

Petitioner did not establish stalking and therefore only established one incident of

violence or stalking, not two as required for an injunction for protection against

repeat violence. Kriebel v. Piedrahita, 219 So.3d 867 (Fla. 4th DCA 2017).

9. In actions for repeat violence, dating violence, and sexual violence brought under

Chapter 784.046, Florida Statutes, a trial court may award attorney’s fees pursuant

to Chapter 57.105, Florida Statutes. The Florida Supreme Court reasoned that

since Chapter 57.105, Florida Statutes, applies to any civil action or proceeding

and that actions for protection against repeat, dating, or sexual violence are civil

actions, trial courts have the authority to award 57.105 fees. The Florida Supreme

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Court a resolved conflict on this issue between the first district court of appeal on

the one hand and the third and fifth districts. Hall v. Lopez, SC16-1921 (Fla.

2018).

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D. DATING VIOLENCE INJUNCTIONS

1. Chapter 748.046(d), Florida Statutes, provides that “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:

a. A dating relationship must have existed within the past 6 months;

b. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and

c. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

d. The term does not include violence in a casual acquaintanceship or violence

between individuals who only have engaged in ordinary fraternization in a

business or social context.

Chapter 784.046(2)(b), Florida Statutes, provides that any person who is the victim

of dating violence and has reasonable cause to believe he or she is in imminent

danger of becoming the victim of another act of dating violence, or any person

who has reasonable cause to believe he or she is in imminent danger of becoming

the victim of an act of dating violence, or the parent or legal guardian of any minor

child who is living at home and who seeks an injunction for protection against

dating violence on behalf of that minor child, has standing in the circuit court to file

a sworn petition for injunction for protection against dating violence.

2. A trial court must find the following elements in order to enter a dating violence

injunction: 1) a dating relationship as contemplated by the statute existed within the

past six months, there has been at least one occasion of dating violence and the

Petitioner has reasonable cause to believe that he or she is in imminent danger of

another act of dating violence; or 2) a dating relationship as contemplated by the

statute existed within the last six months and the Petitioner has a reasonable fear that

he or she is in imminent danger of becoming the victim of dating violence.

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The Petitioner testified that there was an act of violence committed by the

Respondent upon her. Concerning fear that the Petitioner may become the victim

of dating violence in the future, the Petitioner testified that the Respondent may try

to hurt her again because he hurt her in the past. This was not sufficient to

establish a reasonable fear that she was in imminent danger of becoming a victim

of domestic violence in the future. After the one incident of violence, there was

no further contact, attempted contact, communication, or interaction between the

parties. To obtain an injunction it is not sufficient to have been the victim of one

incident of dating violence at some point in the past. Nuila v. Stolp, Case No. 188

So.3d 105 (Fla. 5th DCA 2016); also see Alderman v. Thomas, 141 So.3d 668

(Fla. 2d DCA 2014).

3. Respondent filed a motion to dissolve a dating violence injunction. In his motion

the Respondent alleged that he had been convicted of unrelated criminal charges

and was serving a lengthy sentence. He argued that the injunction no longer

served a valid purpose due to his incarceration and that the injunction was

preventing him from obtaining a lower custody level, taking advantage of

rehabilitation programs, or transferring to a facility closer to home. Due process

required that the Respondent be afforded a hearing on his motion to dissolve the

injunction. Woolley v. Nelsen, 183 So.3d 476 (Fla. 2d DCA 2016). Note that in

Baker v. Baker, 112 So.3d 734 (Fla. 2d DCA 2013), in seeking to dissolve a

domestic violence injunction based upon a change of circumstances, the

Respondent advised the court that he had been sentenced to thirty years'

imprisonment on unrelated criminal charges. At the hearing on the motion to

dissolve the injunction the Respondent testified that he had no contact, will not

have any contact, and does not want to have any contact with the Petitioner. He

also testified that the parties are divorced, that he has “moved on”, and that the

injunction was preventing him from transferring closer to home due to his “custody

level.” The Court concluded that the Respondent had in fact demonstrated a

change in circumstances such that the injunction should be dissolved.

4. At the hearing on whether an injunction for protection against dating violence

should be entered, the Petitioner testified that she was 14 when she began dating

the Respondent who also attended the same school. The Petitioner testified that

the parties dated a few months during which time she told people (presumably

schoolmates) they were “going out.” However, the parties did not go places

together without parents, but they spent time together in school. After the Petitioner

broke up with the Respondent he started threatening to kill her. The threats

occurred two to three times per week in class and in the hallways of the school.

Ultimately in the presence of other individuals the Respondent grabbed the

Petitioner’s wrists. The Court found that a “dating” relationship existed between

the parties. Floyd v. Walker-Gray, 174 So.3d 1034 (Fla. 1st DCA 2015).

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5. Trial court had entered a temporary injunction for protection against dating violence

and set a return hearing. The Respondent requested that the court continue the return

hearing due to the Respondent also being charged criminally with battery. He was

willing to stipulate that the temporary injunction would remain in effect if the matter was

continued. The Respondent argued that because of the criminal case he could not

properly defend himself in the civil case. Trial court denied the request for continuance

and this was affirmed on appeal. There is no rule that a court must stay a civil

proceeding due to there also being a criminal case. Court has the authority to stay the

civil proceeding but is not required to do so. Speegle v. Rhoden, Case No. 1D17-

596 (Fla. 1st DCA 2018).

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E. SEXUAL VIOLENCE INJUNCTIONS

1. Chapter 784.046(1)(c), Florida Statutes, provides that “sexual violence” means

any one incident of:

a. Sexual battery, as defined in chapter 794 Florida Statutes;

b. A lewd or lascivious act, as defined in chapter 800 Florida Statutes, committed upon or in the presence of a person younger than 16 years of age;

c. Luring or enticing a child, as described in chapter 787 Florida Statutes;

d. Sexual performance by a child, as described in chapter 827 Florida Statutes; or

e. Any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.

3. Further, pursuant to Chapter 784.046(2)(c), Florida Statutes, a person who is the

victim of sexual violence or the parent or legal guardian of a minor child who is

living at home who is the victim of sexual violence has standing in the circuit court

to file a sworn petition for an injunction for protection against sexual violence on

his or her own behalf or on behalf of the minor child if:

a. The person has reported the sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent, regardless of whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney; or

b. The respondent who committed the sexual violence against the victim or minor child was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent’s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed.

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4. In addition, Chapter 784.046(4)(a), Florida Statutes, provides that the sworn

petition shall allege the incidents of repeat violence, sexual violence, or dating

violence and shall include the specific facts and circumstances that form the basis

upon which relief is sought. With respect to a minor child who is living at home, the

parent or legal guardian seeking the protective injunction on behalf of the minor

child must:

a. Have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis upon which relief is sought, if the party against whom the protective injunction is sought is also a parent, stepparent, or legal guardian of the minor child; or

b. Have reasonable cause to believe that the minor child is a victim of repeat sexual or dating violence to form the basis upon which relief is sought, if the party against whom the protective injunction is sought is a person other than a parent, stepparent, or legal guardian of the minor child.

5. Mother sought injunction for protection against sexual violence on behalf of her minor daughter against the child’s father. However, the trial court erroneously entered a Final Judgment of Protection Against Sexual Violence for the following reasons:

First, the trial court erroneously relied upon the videotaped interview of the minor child. Chapters 92.53 and 92.55, Florida Statutes, authorize a trial court on its own motion to order the video testimony of a minor child. However, Chapter 92.53(3), Florida Statutes, expressly conditions the trial court's power to order testimony by videotaped interview on either the trial judge or an appointed "special master" presiding over the interview. The trial court did not conduct its own interview in the presence of a court reporter and instead ordered the minor child to report to the Children's Advocacy Center for a forensic interview. Therefore, the child’s videotaped interview could not qualify as admissible videotaped testimony under Chapter 92.53, Florida Statutes.

The child’s interview, although not testimony, could be admissible under Section 90.803(23) of the Florida Evidence Code as a statement of a child victim. Because the child was not available to testify, there needed to be other corroborative evidence of the abuse, which was not present. Accordingly, the court erred when it allowed the videotape of the child into evidence.

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Next, because the Mother was a parent seeking an injunction on behalf of a minor

child against the Father, it was necessary that the mother have been an

eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of,

the specific facts and circumstances that form the basis upon which relief is sought.

It was error to grant the injunction solely on the basis of the minor child’s hearsay

statements to her mother and the forensic interviewer.

Third, the trial court deprived the child’s father of due process when it refused to

allow him to view the videotape. T.B. v. R.B., 186 So.3d 544 (Fla. 2d DCA 2015).

6. Trial court erred when it granted a Final Judgment of Injunction for Protection

Against Domestic Violence based upon allegations of sexual misconduct

perpetrated by a child’s grandfather. There were no witnesses to corroborate the

allegations made by the child and the trial court determined that the child’s

statements made to her mother were inadmissible hearsay (the mother’s attorney

failed to argue the exception set forth in Chapter 90.803(23) of the Florida

Evidence Code). Accordingly, there was no evidence upon which the trial court

could have based the entry of the injunction. J.G. v. E.B. ex rel. J.G., 185 So.3d

1293 (Fla. 5th DCA 2016).

7. Father of minor children sought an injunction for protection against sexual violence

against the children’s stepfather. A temporary injunction was granted based upon

what the children told their father. However, the appellate court reversed. There were

no eyewitnesses, affidavits from eyewitnesses, or direct physical evidence of the alleged

abuse to support the allegations. Therefore, there was no substantial, competent evidence

to support the injunction. Keller v. Ramseyer ex rel. A.R., Case No. 5D17-635 and

Case No. 5D17-639 (Fla. 5th DCA 2018).