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holding that the trial court abused its discretion in entering an injunction where "despite claiming that she feared for her safety and that of her child, Ms. Obrenovic continued to try to contact Mr. Magloire and his family members after the incidents of violence"
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Case No. 2D20-145
12-11-2020
Mitchell MAGLOIRE, Appellant, v. Dijana OBRENOVIC, Appellee.
Ama N. Appiah of Law Office of Ama N. Appiah, P.A., St. Petersburg, for Appellant. Dijana Obrenovic, pro se.
Ama N. Appiah of Law Office of Ama N. Appiah, P.A., St. Petersburg, for Appellant.
Dijana Obrenovic, pro se.
BLACK, Judge.
Mitchell Magloire challenges the final judgment of injunction for protection against domestic violence with minor child entered against him following an evidentiary hearing. Mr. Magloire argues that the trial court abused its discretion in entering the injunction because Dijana Obrenovic failed to present sufficient evidence to support the entry of the injunction. We agree and reverse.
In August 2019, Ms. Obrenovic filed a petition for injunction for protection against domestic violence against Mr. Magloire. At the December 2019 evidentiary hearing, Ms. Obrenovic testified that she and Mr. Magloire had been in a relationship from November 2017 through March 2018 and that Mr. Magloire is the father of her child, who was born in September 2018. The issue of paternity remained in dispute at the time of the hearing and was not resolved as part of the injunction proceedings. Ms. Obrenovic claimed that during the relationship, Mr. Magloire physically and verbally abused her. She testified that Mr. Magloire sexually abused her in January and February 2018 and pushed her in February 2018, causing her to seek medical care. Ms. Obrenovic further stated that in March 2018, when she told Mr. Magloire she was pregnant, he pushed her, tried to kick her in the stomach, and then knocked her phone to the ground when she tried to call the police. Ms. Obrenovic also testified that in the past Mr. Magloire had threatened her with guns and had threatened to kill her. Ms. Obrenovic claimed that she feared for her safety and that of her child because Mr. Magloire had previously claimed to have guns and because he denied paternity of the child both in the paternity action and in the petition he had sought for an injunction against Ms. Obrenovic. According to Ms. Obrenovic, if Mr. Magloire had been willing to lie in court documents then he is capable of harming her.
Ms. Obrenovic conceded that she had contacted Mr. Magloire during her pregnancy about the baby and that she had tried to locate and communicate with Mr. Magloire after the child was born. She also admitted that she had contacted Mr. Magloire's wife, sister-in-law, and mother in order to communicate with Mr. Magloire.
Mr. Magloire testified and denied being the father of Ms. Obrenovic's child. Mr. Magloire denied all of Ms. Obrenovic's allegations of sexual and physical abuse and denied that he had threatened her with guns. Mr. Magloire also testified that he and Ms. Obrenovic were never in a relationship and had only spent one night together in November 2017. He claimed that he had learned of the pregnancy through social media. Mr. Magloire confirmed that he had sought and obtained a final injunction for protection against stalking violence against Ms. Obrenovic but that it had since been vacated.
Mr. Magloire's wife, whom he married in September 2019, also testified at the hearing. The wife claimed that Ms. Obrenovic had contacted her approximately ten times since April 2018, which was when the wife had begun dating Mr. Magloire, and that Ms. Obrenovic never once claimed that Mr. Magloire had been abusive. The wife sought and obtained an injunction for protection against stalking violence against Ms. Obrenovic.
At the conclusion of the hearing, the trial court made the following findings:
I find [Ms. Obrenovic's] testimony to be credible, that there has been domestic violence perpetrated by [Mr. Magloire], specifically the testimony that she gave right in the beginning of pushing her onto the bed, pushing her into the door which caused bruising, the sexual assault in January 2018, and breaking her phone. And that is sufficient evidence to grant the injunction.
The trial court found Mr. Magloire to be dishonest, concluding that he was motivated to make "this go away" because "he doesn't want to be on the hook for child support" and because he is now married to another woman. Mr. Magloire argued that the isolated incident of domestic violence occurring long before the filing of the petition was insufficient to support the injunction, relying on Gill v. Gill, 50 So. 3d 772 (Fla. 2d DCA 2010). In response, the trial court stated that the ongoing litigation between the parties justified the injunction. Mr. Magloire asked for the trial court to clarify its ruling: "Your Honor, for clarification purposes, is the Court finding that the ongoing litigation for the paternity ... rise[s] to the level of a domestic violence injunction[?]" In response, the trial court stated: "No. That is not what I'm finding." And yet, the trial court went on to state that the entry of the injunction was justified based on the prior abuse and threats
combined with her fear of him based upon what's been happening since that time, i.e.[,] litigation over the paternity, litigation in Broward County where his wife claimed that [Ms. Obrenovic] is stalking her, where he has claimed that she has been contacting him. It's—that's the concern of the Court.
There is an ongoing battle outside of this division, meaning right here in this courtroom. The battle is really over the determination of paternity and his having to go forward if that's the case and pay child support for the next 17 years.
So all things considered, and keep in mind the burden of proof, [the greater weight of the evidence,] it's been met. The evidence is sufficient. And at the end of the day, it comes down to this: Does the Court have a concern for her safety right now? Yes, I do.
The trial court ordered the injunction to remain in effect for five years.
A court may grant an injunction for protection against domestic violence "when it appears to the court that the petitioner is either the victim of domestic violence as defined by [section] 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of domestic violence." § 741.30(6)(a), Fla. Stat. (2019) ; accord Zapiola v. Kordecki, 210 So. 3d 249, 249-50 (Fla. 2d DCA 2017). Pursuant to section 741.28(2), " ‘[d]omestic violence’ means 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." "The injunction must be supported by competent substantial evidence." Zapiola, 210 So. 3d at 250 (citing Leaphart v. James, 185 So. 3d 683, 685 (Fla. 2d DCA 2016) ); accord Yaklin v. Yaklin, 296 So. 3d 531, 532 (Fla. 2d DCA 2020).
We note that Ms. Obrenovic failed to establish that she could seek an injunction for protection against domestic violence on behalf of herself and her child because she failed to present evidence that she and her child qualified as family or household members under section 741.28(3). Section 741.28(3) defines family or household member to include "spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married." No evidence was presented establishing that Ms. Obrenovic and Mr. Magloire had ever lived together, and the paternity issue had yet to be resolved when the injunction was entered. But because Mr. Magloire does not challenge the applicability of the domestic violence injunction statute on this basis, any failure on Ms. Obrenovic's part in that regard cannot serve as our basis for reversal. See Zapiola, 210 So. 3d at 250 n.1.
The trial court found Ms. Obrenovic to be credible, a finding we will not second-guess. See Douglas v. Douglas, 252 So. 3d 791, 793 (Fla. 2d DCA 2018). And her testimony established that she was the victim of violence in early 2018, including while she was pregnant. However, those incidents predated the filing of the petition by well over a year and were thus too remote in time to support the entry of the injunction in the absence of more recent evidence of domestic violence or evidence that Ms. Obrenovic has reasonable cause to believe that she and her child are in imminent danger. See Yaklin, 296 So. 3d at 532-33 ("[T]he two years that had passed between the end of the parties' marriage and [the petitioner's] filing of the petition rendered any past abuse too remote in time to support the issuance of the injunction."); Leaphart, 185 So. 3d at 686 (concluding that the single incident of domestic violence was "not enough to support an injunction in the absence of other conduct ... because the incident occurred approximately twenty months before the petition was filed"); Gill, 50 So. 3d at 774 (concluding that the petitioner's evidence was legally insufficient to meet the statutory requirements for issuance of an injunction against domestic violence where the alleged violence occurred fourteen months before the petition was filed); Curl v. Roberts ex rel. E.C., 279 So. 3d 765, 767 (Fla. 1st DCA 2019) ("Incidents remote in time by as little as a year are insufficient to support entry of a new injunction, absent allegations of current violence or imminent danger that satisfy the statute. ... The allegations of physical violence between these parties, which it is undisputed ended two or three years ago, do not satisfy the statutory requirement of a current or imminent threat.").
Having determined that the 2018 incidents of domestic violence were too remote in time—without more—to support the entry of the injunction, we must next consider the reasonableness of Ms. Obrenovic's fear of imminent harm. "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.’ " Phillips v. Phillips, 151 So. 3d 58, 59 (Fla. 2d DCA 2014) (quoting Giallanza v. Giallanza, 787 So. 2d 162, 164 (Fla. 2d DCA 2001) ).
The evidence established that Ms. Obrenovic and Mr. Magloire were in a relationship for a few months in late 2017 and early 2018, that Ms. Obrenovic became pregnant during that relationship, and that Mr. Magloire threatened and abused Ms. Obrenovic on several occasions during their relationship. But again, these incidents alone are "too remote to be considered reasonable cause to believe that [Ms. Obrenovic] was in imminent danger of becoming a victim of domestic violence" in the future. See Zapiola, 210 So. 3d at 250 (quoting Horowitz v. Horowitz, 160 So. 3d 530, 532 (Fla. 2d DCA 2015) ). There have been no incidents of violence or threats of violence since early 2018. Cf. Phillips, 151 So. 3d at 59 ("Mrs. Phillips acknowledged in her testimony at the injunction hearing that there had been no violence or threats of violence from Mr. Phillips since the parties' separation four months before she filed the domestic violence petition. Because Mrs. Phillips failed to establish that she was the victim of domestic violence or that she had a reasonable fear of becoming the victim of domestic violence, we reverse."). Aside from Mr. Magloire's past threats, Ms. Obrenovic testified that her fear of imminent violence was based on the parties' continued involvement in a paternity dispute and Mr. Magloire's insistence that he is not the father of Ms. Obrenovic's child. But Ms. Obrenovic did not testify that Mr. Magloire had done or threatened to do anything with regard to the paternity action that would give her reasonable cause to believe that she or her child were in imminent danger. Cf. Giallanza, 787 So. 2d at 163 (stating that the allegations of actual violence eight to ten years before the petition was filed were sufficient to support the issuance of the injunction when coupled with the assertion that the Wife "was in fear of further domestic violence because the Husband had recently been very angry and verbally abusive to her due to the parties' impending divorce"). The trial court also found the evidence that Mr. Magloire and his wife sought injunctions against Ms. Obrenovic supported the entry of the injunction in this case. However, merely being involved in court proceedings, even if contentious, is not sufficient to establish a reasonable fear of imminent harm. Cf. Olin v. Roberts, 42 So. 3d 841, 842 (Fla. 1st DCA 2010) ("Unfounded reports to authorities or requests for judicial relief, even if repeated or for malicious purposes, do not support the entry of an injunction against domestic or other violence."). No evidence established that Mr. Magloire had recently threatened or even attempted to contact Ms. Obrenovic or her child such that she would have reason to believe that she and her child were in imminent danger of violence. Cf. Zapiola, 210 So. 3d at 250 ("The allegations that Ms. Zapiola might harm Ms. Kordecki while Ms. Kordecki is working as a traffic aide are too vague to provide competent substantial evidence of a reasonably objective fear."). "Where ‘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.’ " Id. (quoting Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA 2007) ). Ms. Obrenovic could not even recall the last time that Mr. Magloire had tried to contact her, and despite claiming that she feared for her safety and that of her child, Ms. Obrenovic continued to try to contact Mr. Magloire and his family members after the incidents of violence in 2018.
Accordingly, we reverse the final judgment of injunction for protection against domestic violence with minor child.
Reversed.
MORRIS and SMITH, JJ., Concur.