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Douglas v. Douglas

Florida Court of Appeals, Second District

August 1, 2018



          Appeal from the Circuit Court for Pinellas County; Jack Helinger, Judge.

          Nancy S. Paikoff and O. George Bamis of MacFarlane, Ferguson & McMullen, Clearwater, for Appellant.

          J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellee.

          SILBERMAN, Judge.

         Joseph C. Douglas, the Husband, seeks review of a final judgment of injunction for protection against domestic violence in favor of Kathryn Ann Douglas, the Wife. We reverse because the final judgment is not supported by competent, substantial evidence that the Wife had an objectively reasonable fear of imminent domestic violence.

         Section 741.30(6)(a), Florida Statutes (2016), provides for the issuance of an injunction "when it appears to the court that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." "Although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the 'reasonable cause' alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well." Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007). This court reviews a finding of an objectively reasonable fear of imminent domestic violence for competent, substantial evidence. Id. at 905.

         Domestic violence is defined as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." § 741.28(2). This definition requires a threat or showing of violence, and general harassment is insufficient. Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005). "An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance." Arnold v. Santana, 122 So.3d 512, 514 (Fla. 1st DCA 2013) (quoting Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012)).

         When the Wife filed the petition for injunction in March 2017, the parties were in the midst of divorce proceedings. They had been residing together in the marital home with their three minor children until just a few days before the petition for injunction was filed. The Wife testified that the Husband had a history of alcohol abuse and losing his temper. She claimed that the Husband had injured her in 1998 and 2011 by grabbing her arms hard enough to cause bruising. And the parties offered differing versions of four incidents in the week before the petition was filed.

         The trial court refused to grant the injunction based on the 1998 and 2011 incidents because they were too remote in time. However, the court granted the injunction based on its conclusion that this history coupled with the Wife's version of the four incidents in March 2017 established an objectively reasonable fear of imminent domestic violence. We cannot second-guess the court's finding that the Wife's evidence was more credible than the Husband's, so we set forth the evidence as presented by the Wife. See Jeffries v. Jeffries, 133 So.3d 1243, 1244 (Fla. 1st DCA 2014).

         The first incident occurred on March 13, 2017. The Wife informed the Husband that she would be working late at her clothing boutique due to a private event. The Husband texted her at 9:30 p.m. and asked where she was. She replied that she was still at the boutique. The Husband drove his truck to the boutique and arrived at around 10:30 p.m. As the Husband pulled into the parking lot, the Wife and her clients were exiting the building. The Husband parked but did not turn off or get out of the vehicle. After a few minutes, the Husband revved his engine and peeled out of the parking lot. The Wife assumed he was mad at her because he did not greet her or her clients. His actions made one of the women uncomfortable.

         Shortly thereafter, the Wife returned to the marital home that the pair were still sharing. She went to the master bedroom to retrieve some clothing, but the Husband was inside with the door locked. He refused to open the door until the Wife knocked loudly enough to wake the children. The Wife asked the Husband if he was upset with her, but he did not want to talk to her. The Wife spent the night in the guest room.

         The second incident occurred three days later on March 16, 2017. The Wife went to a late lunch with a friend, and as the two were leaving the restaurant they ran into the Husband. The Wife asked the Husband what he was doing there, and he said he was going to get his glasses fixed at a store in the same plaza. The third incident occurred on the following day when the Husband showed up at the same bar as the Wife to celebrate St. Patrick's Day. There was no contact between the two.

         The fourth incident occurred two days later on March 19, 2017, at the marital home. When the Wife walked into the kitchen that morning, the Husband confronted her about not attending their child's basketball game. The Husband called her "mother of the year" and a narcissist. He came within two feet of her and pointed his finger at her face. When the Wife went upstairs, the Husband followed her into the master bathroom. The Husband demanded that she open the safe and show him her wedding ring. When she said there was ...

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