Helweg v. Bugby ex rel. S.J.H.
| Decision Date | 04 November 2020 |
| Docket Number | No. 1D19-4095,No. 1D19-4093, No. 1D19-4098,1D19-4093 |
| Citation | 306 So.3d 1243 |
| Parties | Carl HELWEG, Appellant, v. Jody Lynn BUGBY, O/B/O S.J.H., a minor child, Appellee. Carl Helweg, Appellant, v. Jody Lynn Bugby, o/b/o L.E.H., a minor child, Appellee. Carl Helweg, Appellant, v. Jody Lynn Bugby, Appellee. |
| Court | Florida District Court of Appeals |
Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.
No appearance for Appellee.
Appellant, Carl Helweg, appeals three final judgments granting indefinite injunctions for protection against domestic violence entered against him on behalf of his ex-wife, Jody Lynn Bugby, and his two minor children, S.J.H. and L.E.H. We reverse in part and affirm in part.
Mr. Helweg and Ms. Bugby terminated their marriage in early 2019 through dissolution proceedings. The final dissolution judgment incorporated an agreed parenting plan that gave Mr. Helweg approximately 40% of the overnight time-sharing with S.J.H. and L.E.H., the two minor children born of the marriage. The allegations of domestic violence arose from incidents that occurred during the minor children's time sharing with Mr. Helweg. Ms. Bugby filed three petitions for injunction for protection against domestic violence against Mr. Helweg—one on her own behalf and one on behalf of each minor child.
In the petition filed on her own behalf, Ms. Bugby alleged that Mr. Helweg had ongoing and increasing anger management issues including frequent tempers and outbursts. She asserted that Mr. Helweg demonstrated unreasonable behavior regarding educational decisions for their children and refused any mediation. Ms. Bugby's petition did not allege any harm or threat of harm directed to her but requested that Mr. Helweg be prohibited from time sharing with the minor children.
In the petitions filed on behalf of S.J.H. and L.E.H., Ms. Bugby asserted that, despite their agreement to not use corporal punishment, Mr. Helweg grabbed S.J.H.’s wrist and L.E.H.’s arm after the children failed to follow his instructions. She also alleged he yelled at the children during these incidents. The petitions expressed concerns for the children's emotional, psychological, and physical safety. The petitions requested that Mr. Helweg be prohibited from time sharing with either child.
The trial court granted no contact temporary injunctions on behalf of S.J.H. and L.E.H. but denied Ms. Bugby's request for a temporary injunction. Four hearings were held on the merits of the petitions.
During the second hearing, Ms. Bugby's counsel questioned her about why she filed a petition on her own behalf when she was not alleging any physical abuse directed at her. Ms. Bugby explained: Ms. Bugby further stated that she expressly told the clerk "I don't feel physically threatened by Carl Helweg." Ms. Bugby ultimately relied on the recommendation of the clerk and filed the petition for herself in addition to the petitions for the children. Ms. Bugby clarified she was not asking the trial court for a no contact injunction between her and Mr. Helweg, and that she was only concerned for the children's safety when they were alone in his care.
At the third hearing, the trial court noted it had spoken with the minor children in camera, outside the presence of the parties and their counsel. The trial court found that the minor children, at times, feared Mr. Helweg when he lost his temper and concluded that Mr. Helweg had an "anger control problem." After a lengthy discussion, the trial court granted another continuance to allow the parties to attempt a negotiated resolution. Ms. Bugby agreed to let Mr. Helweg have supervised visitation until the next hearing date. That attempted resolution was unsuccessful.
During the final hearing, three witnesses testified. First, Ms. Bugby called Lisa Wright, a victim advocate who interviewed S.J.H. and L.E.H. Over Mr. Helweg's objection, Ms. Wright testified about what the minor children told her during the interviews. Ms. Wright said the children told her Mr. Helweg gave them "Indian burns"—which Ms. Wright explained was a grabbing and twisting of the arm that feels like a burn—on more than one occasion. Ms. Wright also testified that the children told her they were scared of Mr. Helweg and afraid to go to his house.
Ms. Bugby testified, again over Mr. Helweg's objection, regarding a diagnosis and treatment plan she received from a therapist who examined the children shortly after the incidents described in the injunction petitions. The documents were admitted into evidence, over objection, and included statements that the children had reported being assaulted by a caregiver.1 Mr. Helweg then testified and denied all allegations of violence.
After the hearing, the trial court entered three final judgments granting the injunctions in each case. This appeal followed.
The first issue Mr. Helweg raises on appeal is that the trial court's entry of an indefinite injunction on behalf of Ms. Bugby was not supported by the evidence. We agree.
Whether the evidence is legally sufficient to justify imposing a domestic violence injunction is a question of law reviewed de novo. Wills v. Jones , 213 So. 3d 982, 984 (Fla. 1st DCA 2016). Here, there was no evidence to support the imposition of an injunction for Ms. Bugby.
The issuance of injunctions for protection against domestic violence is governed by section 741.30, Florida Statutes (2019), and Florida Family Law Rule of Procedure 12.610. Under section 741.30(6)(a), a trial court may grant an injunction when the petitioner is either the victim of domestic violence or the petitioner "has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence."
In Ms. Bugby's petition, she alleged no domestic violence, fear, or apprehension of domestic violence. Rather, Ms. Bugby explained to the trial court that she only filed the petition at the instruction of the county clerk. Ms. Bugby repeatedly conveyed to the trial court that she was not alleging she personally experienced actual or feared domestic violence. Ms. Bugby was clear in her testimony that she did not feel physically threatened by Mr. Helweg and expressly told the court she was not seeking an injunction for herself.
The trial court's entry of an injunction for Ms. Bugby was in error because there was no evidence that Ms. Bugby was the victim of domestic violence or that Ms. Bugby believed she was in imminent danger of becoming a victim. Therefore, the final judgment of injunction for Ms. Bugby must be reversed.
We turn next to Mr. Helweg's claim that the trial court's indefinite elimination of his time-sharing rights was a termination of his parental rights in violation of his right to due process. When the trial court entered the final judgment for Ms. Bugby, the injunction contained a provision temporarily modifying the parties’ parenting plan time-sharing agreement and granted Ms. Bugby "100% of the time-sharing" rights. The injunction was not set for a definitive time period but rather "until...
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...of the child investigation emergency to expedite the investigation. [ See Fla. Fam. L. R. P. 12.451; Helweg v. Bugby o/b/o S.J.H. , 306 So. 3d 1243 (Fla. 1st DCA 2020)(granting children’s petitions for indefinite injunctions for protection against domestic violence that eliminated former hu......