Mitchell v. Mitchell, 4D15–864.
| Decision Date | 24 August 2016 |
| Docket Number | No. 4D15–864.,4D15–864. |
| Parties | Thomas K. MITCHELL, Appellant, v. Ivonne Y. MITCHELL, Appellee. |
| Court | Florida District Court of Appeals |
Jason B. Blank of Haber Blank, LLP, Fort Lauderdale, for appellant.
Michael J. Dunleavy of Law Office of Michael J. Dunleavy, P.A., Pompano Beach, for appellee.
FORST
, J.
The trial court issued a final judgment of injunction for protection against domestic violence. We conclude that the trial court applied the incorrect standard and that the evidence, when properly examined, does not support the injunction. Accordingly, we reverse.
Background
Appellant Thomas Mitchell and Appellee Ivonne Mitchell were divorced but still living together on January 22, 2015. Throughout the afternoon and into the late evening of that day, the parties had a text message conversation that frightened Appellee. Soon thereafter, she filed a petition for injunction for protection against domestic violence.1
Sometime in the next two weeks, Appellant was hospitalized for three days under the Florida Mental Health Act, a/k/a the Baker Act.2 The record on appeal provides no details regarding this hospitalization.
On February 3, 2015, a hearing was held on Appellee's petition. Appellee introduced “a copy of all [her] text messages” into evidence:
Text Messages from January 22, 20153
or opana. May I pl tr asexual have it
18:02 Appellant: Sorry I found them.
Text Messages from January 28, 2015
11:06 Appellant: It looks like i may have a place next week. I still want the furniture please. I also still a lot of stuff there. Please respond
11:11 Appellee: You're not supposed to communicate with me directly. You're allowed to return with a cop to collect your remaining stuff. We can work out the details at the hearing. Read the injunction.
11:16 Appellant: You said to contact you in your letter
11:17 Appellant: You violated not me
11:17 Appellee: Within the tenets of the injunction. We can discuss at the hearing.
11:19 Appellant: So be it. You said to sue you would be reasonable. I guess not
Appellant testified that portions of the text exchange between he and Appellee were omitted from the exhibit filed by the latter. He claimed that “[t]here was a whole conversation that went with that of about ten plus sentences” that related to the sale of two of Appellee's guns, with Appellee responding that Appellant need not buy her replacement guns and “could keep the money for your apartment.” Appellant's testimony that the trial exhibit of the text message exchange was an incomplete version was not rebutted by Appellee, nor addressed by the trial court.
Appellee testified that, during the text message exchange, she was in contact with Appellant's first wife and the daughter of Appellant and the first wife. Appellee testified that this conversation involved a discussion of threats that Appellant had made towards his first wife and the first wife's son. However, neither the first wife nor any of the children testified at the trial.
The trial court determined that Appellant's “behavior” was “scaring” Appellee and, based on that finding, granted a permanent injunction against Appellant. The injunction required no contact between the parties and further required Appellant to surrender any concealed weapon permits, gun licenses, and firearms to law enforcement. This appeal follows.
Analysis
Selph v. Selph, 144 So.3d 676, 677–78 (Fla. 4th DCA 2014)
.
Section 741.30(1)(a), Florida Statutes (2015)
, creates a cause of action for an injunction for protection against domestic violence on behalf of a family or household member who “has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Id. When proceeding under this section, “the danger feared [must] be imminent [and] the rationale for the fear must be objectively reasonable.” Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) (emphasis added).
In showing these elements, “general harassment does not suffice.” Stone v. Stone, 128 So.3d 239, 241 (Fla. 4th DCA 2013)
(quoting Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005) ). Phone calls and text messages have, in some cases, been found by Florida courts to constitute general harassment and therefore held insufficient to ground an injunction. E.g.
id. at 241 ; Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999). Similarly, “verbal violence,” mental instability, a bad temper,...
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