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WEBINAR DOMESTIC VIOLENCE CASE LAW UPDATE—DECEMBER 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).

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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 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).

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).

4. 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).

5. 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).

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6. 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).

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

8. 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).

9. Respondent filed a motion to dissolve injunction and notice of hearing. Thereafter, an amended notice of hearing was filed by the Respondent. However, on the date set forth in the original notice of hearing the Respondent and his counsel appeared ready to argue and present evidence with regard to the motion to dissolve. The Court noted that the matter was not on its docket for that day and expressed concern that the Petitioner did not have adequate notice of the hearing. Despite these concerns the court went ahead, conducted an evidentiary hearing, and dissolved the injunction. The Petitioner’s due process rights were clearly violated and the order granting the dismissal of the injunction was reversed. Porvaznik ex rel. E.M.P. v. Porvaznik ex rel. R.M.P., Case No. 2D17-3425 (Fla. 2d DCA 2018).

10. 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, 215 So.3d 1292 (Fla. 5th DCA 2017); Leija v. Byrd, 233 So.3d 528 (Fla. 1st DCA 2018).

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11. 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).

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).

13. Child support award entered in a domestic violence injunction sought pursuant to

Chapter 741.30, Florida Statutes, ends when the injunction expires. There is

nothing in the statute that requires a court in a domestic violence proceeding to

order child support until such time as another proceeding, such as an action for

dissolution of marriage, addresses the issue. Carroll v. Goll, Case No. 3D17-

0128 (Fla. 3d DCA 2018).

14. Attorney’s fees pursuant to Chapter 57.105, Florida Statutes, are not available in

domestic violence actions brought pursuant to Chapter 741.30, Florida Statutes.

Action brought by father on behalf of a minor child against mother was properly

considered a domestic violence injunction, not an injunction for repeat violence,

notwithstanding that the parties were not married. Although attorney’s fees may

be awarded pursuant to Chapter 57.105, Florida Statutes, in repeat violence, such

fees are not available in proceedings brought under Chapter 741.30, Florida

Statutes. Sager v. Holgren, Case No. 1D17-3607 (Fla. 1st DCA 2018).

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15. Both parents and their children were residents of Ohio. The trial court granted a

Final Judgment of Injunction For Protection Against Domestic Violence after the

Mother and minor children came to Florida from Ohio and after the Mother claimed

she was a victim of domestic violence. The trial court erred when it entered the

injunction, as Florida lacked personal jurisdiction over the Respondent. The trial

court identified three grounds on which it based its exercise of personal jurisdiction:

(1) that the Respondent "has family living in Florida"; (2) that the Respondent "has

'sent' the Mother and the children to Florida on approximately six occasions in the

past"; and (3) that when the Mother and children came to Florida in the past the

Respondent would come and visit. None of these facts supports personal

jurisdiction over the Respondent under Chapter 48.193, Florida Statutes, the long-

arm statute. There is no “safety exception” to the requirements of the long-arm

statute, and lastly, this was not a proper exercise of the court’s emergency

jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, as

the injunction action was not a custody dispute and the UCCJEA does not establish

an independent basis to exercise jurisdiction over the Respondent. Youssef v.

Zaitouni, Case No. 2D17-926 (Fla. 2d DCA 2018).

16. 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).

17. 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).

18. 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.

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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).

19. At the return hearing the Petitioner testified about events not set forth in her Petition for Injunction for Protection Against Domestic Violence. However, there was no error when Respondent’s counsel failed to object to the allegedly improper testimony and in fact cross examined the Petitioner about her testimony. Further, concerning questions of fact when issuing a final injunction the trial court’s decision will not be disturbed absent a clear abuse of discretion. Trial court found the testimony of the Petitioner and her witness to be credible and the testimony of the Respondent to not be credible. Gonzalez v. Baez, Case No. 3D17-2167 (Fla. 3d DCA 2018).

20. 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).

21. In a case similar to Leal, supra, the Petitioner established reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. In her Petition the wife alleged that the husband is addicted to alcohol, abuses marijuana, and refuses to take medication for his mental disability. The wife further alleged that one night she got into a verbal conflict with the husband over booking flights for a vacation. Following the argument, the wife stated that the husband was upset and began drinking while she took their daughter to the swimming pool. The wife further stated that the next day she woke up and found

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the husband asleep on the couch after a night of drinking and that he started drinking again around 7:30 a.m. and proceeded to consume alcohol throughout the rest of the day.

The wife alleged that a physical confrontation between her and the husband occurred later that day when the husband disabled the lock to their daughter’s bedroom door in order to gain entry while the wife was putting the daughter down for a nap. The wife stated that, despite her protest that their daughter needed to sleep, the husband began playing with the daughter and shoved the wife into the door to prevent the wife from stopping him. She further stated that a verbal argument followed, after which the wife left the apartment with their daughter for a few hours. Later that same day the wife and the daughter returned later in the evening when the wife claimed that her husband asked her to prepare everything for New Year's Eve while he took a nap on the couch. The wife also stated that the husband was upset that she woke him up only twenty minutes before midnight and that she only bought one bottle of champagne. Thereafter, according to the wife, in the early morning hours of January 1, 2017, the husband continued to drink heavily and, despite the fact that she and the daughter were sleeping nearby, the husband purposefully turned the television volume extremely loud. The wife stated that after she disabled the television by cutting the cable cord, the husband broke the bedroom lock and attempted to physically remove the wife from the bed by flipping the mattress and ripping the sheets off. In addition, the wife stated that the husband then, while still very intoxicated, proceeded to play with their crying daughter despite the wife's pleas to stop. Afraid for the safety of the daughter, the wife stated that she eventually was able to pack a bag and leave the apartment with the child around 1:00 or 2:00 a.m. Then, the wife stated, when she and the daughter returned the following morning, she and the husband got into a heated verbal argument during which the husband threatened to send the wife back to Russia and take away the daughter. The wife took cellphone videos during the verbal argument that showed the husband continually screaming at the wife in a threatening manner. Fearing for her own safety as well as the daughter's safety, the wife alleged, she called the police. Zarudny v. Zarudny, Case No. 3D17-451 (Fla. 3d DCA 2018). Also see Lopez v. Regalado, Case No. 3D17-2541 (Fla. 3d DCA 2018).

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22. In order to enter a Final Judgment of Injunction For Protection Against Domestic Violence the Petitioner must show that he or she has been the victim of domestic violence or that he or she has reasonable cause to believe that he or she is in imminent danger of becoming the victim of domestic violence. The danger feared must be imminent and the rationale for the fear must be objectively reasonable. Mere uncivil behavior that causes distress or annoyance is insufficient. The Wife alleged that her Husband: 1) drove to her work and sat in his car. When she came out of work with co-workers he sped off; 2) locked her out of the master bedroom when she came home from work and would not speak with her; 3) he was at the same bar she was at for St. Patrick’s Day (they did not speak) and was at the same shopping plaza she was at; 4) argued with her in the marital home about her not attending a child’s game and confronted her about her wedding ring. He was standing inches away from her and pointing his finger at her. There was no actual or threatened violence during any of these incidents and the final injunction should not have been entered. Douglas v. Douglas, Case No. 2D17-2175 (Fla. 2d DCA 2018).

23. 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).

24. Trial court entered a Final Judgment of Dissolution Of Marriage which provided for the parties to have shared parental responsibility concerning the minor child and provided for the father to have supervised parenting time. Although trial courts have broad discretion in determining time sharing and for the entry of parenting plans, the trial court abused its discretion by failing to accord full faith and credit to a previously entered Kentucky Domestic Violence Order of Protection under 18 U.S.C. § 2265(a) and Chapter 741.315(2), Florida Statutes. The order of protection prohibited the father from coming within 500 feet of the minor child. Even though the parenting time granted by the trial court to the father was supervised the final judgment of dissolution of marriage conflicts with the terms of the Kentucky order of protection. This was even more true when the Kentucky order was direct and unrefuted evidence of domestic violence against the mother and the minor child by the father. The trial court only made passing reference to domestic violence in its Final Judgment of Dissolution of Marriage. The matter was remanded back to the

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trial court to make findings in accordance with Chapter 61.13, Florida Statutes, and the Kentucky order of protection. Smith v. Daniel, Case No. 1D17-4240 (Fla. 1st DCA 2018).

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).

3. 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

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

Copeland, 236 So.3d 1142 (Fla. 1st DCA 2018).

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

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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.

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. One attorney sought an injunction for protection against stalking against another attorney. The parties had been adversaries in a number of lawsuits. The Respondent allegedly said that he will cause her to lose her law license and reputation, that he is having her watched by the use of drones, made sexual

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advances toward her and asked another attorney within earshot of the Petitioner if he was having sexual relations with the Petitioner, and served several subpoenas upon the Petitioner requiring her to be present at hearings that did not involve her or any of her clients. Appellate court determined that the core allegations did not amount to harassment under the stalking statute but were matters that could be addressed by the Florida Bar in disciplinary proceedings. Raulerson v. Font, Case No. 3D17-2370 (Fla. 3d DCA 2018).

10. Evidence was insufficient for entry of an injunction for protection against stalking.

Neighbors had a rocky relationship from the start. The Petitioner claimed that she

first met the Respondent when he came to her cottage one evening and yelled at

her to turn off her outdoor street-facing light. She turned off the light that evening

but soon after turned it back on for security. After a few months with the light on,

the Petitioner came back to her home and rudely asked her to build something

around the light so it would not shine towards his home. Months later, she started

receiving notices at her home from various authorities based on complaints by the

Respondent. The Petitioner claimed that she wondered each day whether she

would come home to "a dog complaint or a light complaint." She explained that

she was "just tired of this man getting to call the police on [her] just because of

anything he wants to do."

The Petitioner additionally claimed that the Respondent would stare at her while she sunbathed on her deck, which made her very uncomfortable. He would watch her from his "tiny side deck" even though he had a "huge deck" with a beautiful view of the ocean. The Petitioner also observed the Respondent looking at utility meters on her street's boardwalk on three occasions and she did not "want him creeping around the meters." According to the Respondent he never met the Petitioner before, did not know her, and did not want to know her. He admitted that he complained to code enforcement about her outdoor lights and complained to animal control and law enforcement about her barking dogs but claimed that his complaints were focused on issues of noise and light pollution and were not directed towards the Petitioner or any specific person. Appellate court determined there was no evidence that the Respondent willfully and maliciously engaged in a course of conduct directed at the Petitioner. Also, the court did not believe that a reasonable person would suffer substantial emotional distress from the Respondent’s conduct. Paulson v. Rankart, Case No. 1D17-1751 (Fla. 1st DCA 2018).

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11. 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).

12. Trial court entered a Final Judgment Of Injunction For Protection Against Stalking

which enjoined the Respondent from coming within 500 feet of the Petitioner’s

home. However, no evidence was provided to trial court as to the distance

between the parties’ homes. In fact, the homes were approximately 90 feet apart.

Because the injunction was broader than necessary to protect the Petitioner, the

trial court was directed to more narrowly tailor the “buffer zone” provision of the

Final Injunction. Otherwise the Final Injunction would deprive the Respondent of

the lawful use of his property. Givens v. Holmes, Case No. 2D17-444 (Fla. 2d

DCA 2018).

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.

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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 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.

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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).

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

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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.

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

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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).

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.

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]

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[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

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. Final Injunction for Protection Against Repeat Violence was reversed. Of the three

acts that occurred between the parties, only one act met the definition of “violence”.

This was the occasion when the Respondent spit on the Petitioner, which was a

battery. As to the other two acts, Respondent allegedly approached the

Petitioner’s ten-year-old daughter at her school and made inappropriate remarks

about her being "messed up" because of her parents. However, because there

was no allegation that the Respondent made physical contact with or threatened

any harm to the child, this incident was not a violent act under Chapter

784.046(1)(a), Florida Statutes. With regard to the other incident, the Petitioner

alleged that the Respondent approached him, looked at him, and said under his

breath that he would kill the Petitioner and his family. The Petitioner alleged that

he knew Respondent carried a pocketknife and knew the he had been previously

convicted of attempted aggravated assault, but did not allege that Respondent

displayed the knife or committed any other overt act beyond the threatening

statement. These acts do not constitute an assault and therefore there was only

one act of violence. Tash v. Rogers ex rel. E.R., Case No. 1D17-2861 (Fla. 1st

DCA 2018).

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

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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).

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. 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).

8. 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

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

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).

9. Injunction for protection against repeat violence expired by its own terms during

the pendency of the appeal. Ultimately the appellate court determined that the

appeal was moot and the appeal was dismissed. The collateral consequences

that can flow from the entry of a final injunction for protection against domestic

violence (collateral consequences affecting a party that can flow from the issues

in a case is one exception to the doctrine of mootness) were not present in the

instant case. The appellant did not argue that there may be collateral

consequences, such as not be able to possess a firearm, that would affect her.

Molina v. Valenzuela, Case No. 4D17-2379 (Fla. 4th DCA 2018).

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.

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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.

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

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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).

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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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.

2. 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

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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.

3. 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.

4. 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.

25

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.

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).

5. 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).

6. 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).