Opinion
No. 1D20-104
04-09-2021
Paul KENDRICK, Appellant, v. Janie GLOVER, Appellee.
H. E. Ellis, Jr. of Staples, Ellis + Associates, P.A., Pensacola, for Appellant. Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellee.
H. E. Ellis, Jr. of Staples, Ellis + Associates, P.A., Pensacola, for Appellant.
Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellee.
Osterhaus, J.
Paul Kendrick appeals from an order granting a domestic violence injunction. We agree with Appellant that the evidence adduced in the trial court was insufficient to support the injunction. Accordingly, we reverse the order granting the injunction.
I.
The parties in this case were formerly married but have been divorced now for nearly 20 years. It has not been a smooth split. The parties have ongoing family law litigation pending in a separate case. And Appellee has previously sought relief in domestic violence court against Appellant. In this 2019 case, Appellee also requested an injunction for protection against stalking against Appellant. Appellee's argument at the hearing below grounded her injunction request in a handful of incidents occurring within the prior year. The trial court cited the following incidents: 1) Appellant directed his attorney to serve court documents at Appellee's new residential address that she hadn't previously disclosed (which Appellant discovered through online research); 2) Appellant sent a social media friend request to Appellee; and 3) Appellant contacted the U.S. Attorney's Office related to an employment litigation matter involving Appellee (and that didn't involve him) to report his belief that Appellee had filed false financial affidavits. An additional allegation was made that Appellant visited the home of Appellee's significant other and showed him boxes of old pictures and letters. Appellee sought a domestic violence injunction alleging that these activities constituted stalking.
II.
"[A] trial court has broad discretion to enter an injunction, and a decision based on that discretion will not be overturned absent a finding that the court abused that discretion." Khan v. Deutschman , 282 So. 3d 965, 966 (Fla. 1st DCA 2019) (quoting Pickett v. Copeland , 236 So. 3d 1142, 1143–44 (Fla. 1st DCA 2018) ). However, the question of whether the evidence is legally sufficient to justify an injunction is a question of law reviewed de novo. Id. at 967.
Florida law allows a person to seek protection against domestic violence by filing for an injunction in circuit court. § 741.30, Fla. Stat. One who is either the victim of domestic violence as defined in § 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence may seek an injunction. § 741.30(1)(a), Fla. Stat. 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), Fla. Stat. Appellee's case was based upon the stalking allegations described above. "A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ...." § 784.048(2), Fla. Stat.; see also Khan , 282 So. 3d at 967. " ‘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." § 784.048(1)(a), Fla. Stat. "Whether the purpose for contact is ‘legitimate’ is evaluated on a case-by-case basis. ... However, courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim." Venn v. Fowlkes , 257 So. 3d 622, 624 (Fla. 1st DCA 2018) (quoting O'Neill v. Goodwin , 195 So. 3d 411, 413 (Fla. 4th DCA 2016) ). Substantial emotional distress is evaluated by an objective standard, based on the totality of all circumstances, and is not easily suffered. See id. (citing Burroughs v. Corey , 92 F. Supp. 3d 1201, 1205 (M.D. Fla. 2015) ).
Here, we cannot affirm that the evidence produced at the hearing was "sufficient to produce substantial emotional distress in a reasonable person." Reid v. Saunders , 282 So. 3d 151, 151 (Fla. 1st DCA 2019). More specifically, the evidence that Appellant caused court papers to be served at Appellee's previously undisclosed new residence, rather than at her P.O. Box, appears to serve an underlying legitimate purpose in this litigation, even if Appellee preferred that they be sent to her P.O. Box. See id. at 152 ("Communications about child support, although worded harshly, serve an underlying legitimate purpose and do not support the injunction."). Similarly, we cannot say that Appellant's decision to report potentially false affidavits to the U.S. Attorney's Office in Appellee's unrelated civil case served no legitimate purpose, even if the trial court believed there were "other avenues" available to address Appellant's concern. The other incidents also do not constitute stalking. The receipt of a social media friend request and having non-threatening pictures and letters shared with a current boyfriend may have been distasteful and annoying to Appellee. But the evidence does not show willful, malicious, and repeated harassment sufficient to cause a reasonable person to suffer emotional distress.
Accordingly, we REVERSE the order granting the domestic violence injunction.
Rowe and Long, JJ., concur.