Opinion
Case No. 5D19-1421
01-24-2020
Hector Javier QUINONES-DONES, Appellant, v. Carol Anne MASCOLA, Appellee.
Flavio E. Alvarez, Kissimmee, for Appellant. No Appearance for Appellee.
Flavio E. Alvarez, Kissimmee, for Appellant.
No Appearance for Appellee.
COHEN, J.
Hector Javier Quinones-Dones ("Father") appeals the trial court's final judgment of injunction for protection against domestic violence with minor child entered in favor of Carol Anne Mascola ("Mother"). We reverse.
The parties have a child together but have been separated for several years. A parenting plan was in place, which provided that the parties would pick up and drop off the child at each other's homes. Three events appear to have precipitated Mother filing her petition for injunction against domestic violence. First, Father began picking up the child at Mother's home for timesharing, when previously, the paternal grandmother had been picking up the child. Second, the paternal grandmother gave the child a cellphone to communicate with Father which apparently upset Mother. Mother utilized a parental control app to stop the child from using the phone and refused to provide Father the PIN for that app. Third, Mother received thirty-eight text messages from Father's cellphone stating, "Hello. Hello. Hello."
The child was seven years old at the time.
In order to obtain an injunction for protection against domestic violence, the petitioner must be the victim of domestic violence or have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence. § 741.30(6)(a), Fla. Stat. (2019). "This requisite fear of imminent danger, however, must be an objectively reasonable fear." Robinson v. Robinson, 257 So. 3d 1187, 1188 (Fla. 5th DCA 2018) (citing Mitchell v. Mitchell, 198 So. 3d 1096, 1100 (Fla. 4th DCA 2016) ). "In determining whether the victim's fear is reasonable, ‘the trial court must consider the current allegations, the parties' behavior within the relationship, and the history of the relationship as a whole.’ " Jones v. Jones, 32 So. 3d 772, 774 (Fla. 2d DCA 2010) (quoting Giallanza v. Giallanza, 787 So. 2d 162, 164 (Fla. 2d DCA 2001) ). A domestic violence injunction must be supported by competent substantial evidence and is reviewed for legal sufficiency as opposed to evidentiary weight. Robinson, 257 So. 3d at 1188.
We find that the evidence presented at the hearing on Mother's petition was insufficient to support the entry of the domestic violence injunction. The evidence, in the light most favorable to Mother, was that eight or nine years ago, Father committed acts of domestic violence upon her. Mother admitted that Father had not acted violently towards her since their relationship ended years ago and did not allege that Father recently threatened her; the basis of her fear of Father was that she felt he had become demanding, noting that he insisted they pick up the child at each other's houses, demanded her to tell him the parental control app PIN, and sent the thirty-eight text messages. She believed that Father might become violent again because he would sometimes send her multiple text messages when the parties were dating and explained that she was fearful of picking up and dropping off the child at each other's homes because she was "not sure of his capabilities."
While the prior incidents of domestic violence were relevant to provide context to the history of and parties' behavior in the relationship, because of their remoteness in time, without additional allegations of a recent threat or act of violence, they cannot support the issuance of a domestic violence injunction. Phillips v. Phillips, 151 So. 3d 58, 59 (Fla. 2d DCA 2014) ; accord Giallanza, 787 So. 2d at 164 (reversing order granting petition to extend injunction where wife never alleged additional threats or acts of violence). Further, even assuming that Father sent the thirty-eight text messages to Mother, "mere uncivil behavior or annoyance is not sufficient to obtain an injunction against domestic violence." Robinson, 257 So. 3d at 1189 ; see Giallanza, 787 So. 2d at 164–65 (noting that although wife was upset that husband was using parties' children to harass her, "it is not sufficient to support any finding that she has an objectively reasonable fear that she is in imminent danger of domestic violence"). Accordingly, we conclude that Mother's fear of imminent danger was not objectively reasonable, as Father had not recently been violent or threatened violence towards Mother. Injunctions against domestic violence are not intended to be substitutes for handling disagreements concerning parenting plans or child rearing disputes.
In objecting to the admission of the text messages into evidence, Father explained that the child sent the messages from his cell phone.
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REVERSED.
ORFINGER and EISNAUGLE, JJ., concur.