Trice v. Trice

• Decision Date: 20 March 2019
• Docket Number: Case No. 2D17-3673
• Citation: 267 So.3d 496
• Parties: Kevin Christopher TRICE, Appellant, v. Victoria Lynn TRICE, Appellee.
• Court: Florida District Court of Appeals

267 So.3d 496

Kevin Christopher TRICE, Appellant,

v.Victoria Lynn TRICE, Appellee.

Case No. 2D17-3673

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2019

Maria Pavlidis of McCarty Gonzalez Pavlidis & Whidden LLC, Tampa, for Appellant.

Damien McKinney of McKinney Law Firm, P.A., Tampa, for Appellee.

SALARIO, Judge.

Kevin Trice appeals from an order denying his motion to dissolve a permanent domestic violence injunction in favor of Victoria Trice. He argues that the trial court erred in denying his motion because the evidence proved that the circumstances underlying the injunction had changed such that it no longer served a valid purpose. We agree and reverse.¹

Mr. and Ms. Trice were married in 2007. In 2011, they were living together in Riverview, Florida. Both worked in the military. On June 11, 2011, Ms. Trice filed a petition to dissolve the parties' marriage. Seven days later, Ms. Trice filed a petition for an injunction for protection against domestic violence pursuant to section 741.30, Florida Statutes (2010). She alleged that on June 11, Mr. Trice pulled out a gun, trapped her in the garage, and threatened to shoot her in front of their nine-month-old daughter. Mr. Trice was arrested and charged with armed false imprisonment, aggravated assault, and domestic battery. The trial court entered a temporary injunction and set a hearing for June 27, 2011.

At the hearing on the injunction, Ms. Trice briefly testified about the incident in the garage. Mr. Trice declined to cross-examine her or offer testimony of his own, citing his pending criminal case. The trial court entered a final judgment granting a permanent injunction against domestic violence the same day. The final judgment stated that its injunctive provisions would not expire. On April 26, 2012, Mr. Trice was acquitted in the criminal case after a jury trial. On August 1, 2013, the trial court entered a final judgment dissolving the parties' marriage.

On June 27, 2016, Mr. Trice filed a motion to dissolve the injunction pursuant to section 741.30(6)(c), Florida Statutes (2015). At an evidentiary hearing before a successor judge on August 28, 2017, Mr. Trice testified that, after the injunction was entered, he left the military and moved to Kansas to pursue a career in law enforcement. He returned to school and obtained a criminal justice degree. Despite his education and ten years of experience as a military policeman, he was unable to find a job in law enforcement because the permanent domestic violence injunction prevented him from getting licensed and legally handling firearms. He also testified that he has had no contact with Ms. Trice or his daughter since the injunction was entered.

Ms. Trice testified that at least at that time, she lived in Okinawa, Japan and that she would return to the United States when her military assignment there was over, which the testimony indicates might have occurred as soon as November 2017. However, there was no way to know where her next assignment might be. (Our record does not say whether Ms. Trice has now returned to the United States, or, if she has, where she lives.) Ms. Trice also testified that, after the injunction was entered, she hid from Mr. Trice until her reassignment. She limited her social media use and cut off contact from acquaintances she feared could help Mr. Trice find her.

Ms. Trice also stated that Mr. Trice ran afoul of the injunction in September 2011. She testified that she encountered him in a parking lot on the military base standing near their then-jointly-owned vehicle. She said that they did not exchange words and she immediately fled. For his part, Mr. Trice said that he was merely looking in the vehicle for his military uniform, had no intention of contacting Ms. Trice, and that once he saw her, he immediately turned around and left without speaking to her. The parties agreed that there has been no contact since this incident.

After the hearing, the trial court summarized the testimony and concluded that "there hasn't been a change in circumstances that relate[s] to this issue, such that the ... dissolution of the injunction is warranted." It entered an order denying the motion, from which this appeal follows. Our review is for abuse of discretion. See Reed v. Giles, 974 So.2d 624, 625 (Fla. 4th DCA 2008) (reviewing order denying motion to dissolve domestic violence injunction for abuse of discretion); cf. Miley v. Dunn, No. 2D17-4775, 264 So.3d 219, 221–22, 2018 WL 6712214, at *3 (Fla. 2d DCA Dec. 21, 2018) (applying the same standard to an order on a motion to modify a sexual violence injunction).

Section 741.30 allows a court to issue an injunction against domestic violence "when it appears to the court that the petitioner is either the victim of domestic violence ... or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." § 741.30(6)(a) ; see also Leaphart v. James, 185 So.3d 683, 685 (Fla. 2d DCA 2016). Once entered, a domestic violence injunction "shall remain in effect until modified or dissolved." § 741.30(6)(c). Either party to a domestic violence injunction proceeding can move to modify or dissolve the injunction "at any time." Id.; see also Fla. Fam. L. R. P. 12.610(c)(6).

Although section 741.30(6)(c) does not state what a party who seeks to dissolve a domestic violence injunction must prove in order to obtain that relief, our court and others have held that the movant must show "that there has been a change in circumstances since the injunction was entered" such "that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose." Spaulding v. Shane, 150 So.3d 852, 853 (Fla. 2d DCA 2014) (quoting Alkhoury v. Alkhoury, 54 So.3d 641, 642 (Fla. 1st DCA 2011) ); see also Bork v. Pare, 252 So.3d 394, 395 (Fla. 2d DCA 2018) ; Hamane v. Elofir, 226 So.3d 330, 330 (Fla. 5th DCA 2017). This approach lines up with the law's treatment of motions to dissolve ordinary injunctions issued pursuant to a court's equitable powers, which recognizes that because permanent injunctions are open-ended and everlasting, they must be subject to dissolution when the circumstances that justified such an injunction are no longer operative. See Alkhoury, 54 So.3d at 642 (evaluating motion to dissolve domestic violence injunction with reference to principles applicable to ordinary injunctions and noting that "permanent injunctions ... remain indefinitely in effect"); Hale v. Miracle Enters. Corp., 517 So.2d 102, 103 (Fla. 3d DCA 1987) (stating that "permanent injunctions are open ended and remain indefinitely in effect" and that their terms "must be confined to that required by their existing circumstances").

Here, when the domestic violence injunction was originally issued in 2011, it was justified by Ms. Trice's testimony that days after she filed for divorce and while both were employed in the military in Tampa, Mr. Trice confronted her and their infant daughter in their garage of their marital home and threatened to shoot her. Those events led to criminal charges against Mr. Trice. Ms. Trice's testimony was uncontroverted, with Mr. Trice declining to testify on the stated basis of concern for the criminal proceedings then pending against him. On that record, an injunction against domestic violence was undoubtedly proper—the record established without dispute that Ms. Trice had been a victim of domestic violence. See § 741.30(6)(a), Fla. Stat. (2010).

The evidence at the 2017 hearing on the motion to dissolve presented a significant change from the circumstances that existed six years earlier. At the time of the hearing on the motion to dissolve, it was undisputed that (1) Mr. Trice had been acquitted of the criminal charges arising out of the events that supported the entry of the permanent injunction; (2) the parties' marriage had been dissolved; (3) Mr. Trice was living in Kansas, not Florida; (4) Ms. Trice was living in Japan, not Florida; (5) Mr. Trice was no longer employed in the military, while Ms. Trice remained employed there; (6) the parties had not seen each other in six years; and (7) Mr. Trice had made no attempt to contact Ms. Trice for six years. Although Ms. Trice expects to return to the United States, nothing in the record suggests that she will return to anywhere close to where Mr. Trice lives. And it is undisputed that the injunction is preventing Mr. Trice from finding employment in law enforcement or security in his home state of Kansas. The record establishes that any future contact between the parties is exceedingly unlikely and that the continuing existence of the injunction is precluding Mr. Trice from obtaining employment.

Under these facts, the trial court's conclusion that these circumstances were not "such that dissolution of the injunction is warranted" could only have rested on a theoretical possibility that Mr. Trice—after six years with no attempt at contact with Ms. Trice, living far away from Ms. Trice, and no longer sharing marriage or employment with Ms. Trice—might someday seek Ms. Trice out and harm her. To the extent the trial court impliedly found that this possibility of Mr. Trice contacting and harming Ms. Trice was something more than theoretical, it abused its discretion because there is no competent substantial evidence in the record to support such a finding. Cf. State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 532-33 (Fla. 2d DCA 2017) ("The abuse of discretion standard ..., although deferential, requires that the decision to exercise discretion ... be supported by competent substantial evidence." (citing Sourcetrack, LLC v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) ) ).

To the extent the trial court concluded that the theoretical possibility of future contact between the parties was by itself sufficient to conclude that the circumstances underlying the injunction remained the same, that...