ROBERT W. CLEARY, APPELLANT,
v.
MARIA TEREZA DE CASTELO BRANCO FERREIRA CLEARY, A/K/A M. TERESA CLEARY, APPELLEE
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Robert Cleary appealed a domestic violence injunction entered against him, arguing his wife lacked reasonable cause to believe she might become a victim of domestic violence and sought the injunction merely for tactical advantage in a pending divorce. The appellate court affirmed the injunction, holding that the trial court's factual findings could not be reweighed on appeal and that the wife had standing under the applicable statute.
The wife had standing to seek the domestic violence injunction under Florida Statute § 741.30(1)(c) as it existed prior to 1997 amendments, and the appellate court cannot reweigh the trial court's factual decisions regarding her reasonable cause to believe she might become a victim of domestic violence.
[1] A party seeking a domestic violence injunction has standing if they have reasonable cause to believe they may become the victim of domestic violence, under the pre-1997 s…
[2] An appellate court will not reweigh the trial court's factual decisions regarding standing for a domestic violence injunction.
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Join FLexlaw to unlock all legal intelligence“although the evidence supporting the need for this injunction was very modest, under the test used to determine standing to seek such an injunction prior to the 1997 amendments, we conclude that Mr. Cleary's wife had standing and that this court cannot reweigh the trial court's factual decision”
Establishes the court's holding that despite weak evidence, the wife had standing and appellate courts lack authority to reweigh factual findings
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Join FLexlaw to unlock all legal intelligenceRobert Cleary's wife filed a petition for a domestic violence injunction on August 15, 1997, shortly after filing a divorce proceeding. Cleary argued …
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ALTENBERND, Acting Chief Judge.
Robert W. Cleary appeals a domestic violence injunction entered on August 15, 1997. Mr. Cleary argues that, at the time his wife sought this protection, she had no reasonable cause to believe that she may become the victim of any act of domestic violence. He believes the injunction was sought to obtain a tactical advantage in a recently filed divorce proceeding. Although the evidence supporting the need for this injunction was very modest, under the test used to determine standing to seek such an injunction prior to the 1997 amendments,1 we conclude that Mr. Cleary’s wife had standing and that this court cannot reweigh the trial court’s factual decision. See Tsavaris v. NCNB Nat’l Bank of Fla., 497 So. 2d 1338 (Fla. 2d DCA 1986).
Accordingly, we affirm the order.
Section 741.30(1)(c), Florida Statutes (Supp.1996), provides that orders entered in a subsequently filed dissolution proceeding take precedence over conflicting provisions in an injunction concerning matters governed by chapter 61. The dissolution proceeding in this ease was filed a few days prior to the petition for an injunction against domestic violence.
Nevertheless, in those circuits in which the domestic violence injunction is decided by a trial judge other than the judge assigned to the pending dissolution proceeding, we conclude that matters governed by chapter 61 are controlled by the judge in the dissolution proceeding without regard to whether that proceeding is filed before or after the petition for injunction. We doubt the trial court in this case had a need to decide child custody and visitation issues at the conclusion of the brief hearing on the permanent injunction, but we will not reverse those rulings because the trial judge in the dissolution proceeding has authority to make more deliberate decisions.
Affirmed.
BLUE, J., and YOUNG, ROBERT A, Associate Judge, concur. .
Section 741.30(1)(a), Florida Statutes (Supp.1996), states: "Any person described in paragraph (e), who is the victim of any act of domestic violence, or has reasonable cause to believe he or she may become the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence.” But see ch. 97-155, Laws of Fla., effective October 1, 1997 (replacing "has reasonable cause to believe he or she may become the victim of any act of domestic violence” with "has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence”).
The effect of this amendment is debated in two recent articles in The Family Law Commentator. See Fred Dudley, Maggie Moody, Glenn Lang, Injunctions for Protection Against Domestic Violence: Revisions and Visions, The Family Law Commentator, Jan. 1998, at 6; Robert L. Doyel, Did the 1997 Legislature Change the Criteria Issuing Injunctions for Protection Ex Parte?, The Family Law Commentator, Jan. 1998, at 12.
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Gustafson v. Mauck, 743 So. 2d 614 (Fla. 1st DCA 1999)…see Ch. 97-155, § 5 at 2971, Laws of Fla. (1997), codified at § 741.30(l)(a), Fla. Stat. (1997), tightening the previous requirement to prove reasonable fear of violence only at some indeterminate time in the future. See generally Cleary v. Cleary, 711 So. 2d 1302, 1302 n. 1 (Fla. 2d DCA 1998). The statutory standard is an objective one. For the period after the initial injunction expired, Ms. Mauck relies on the telephone calls to prove that Mr. Gus-tafson poses a danger to her. While we do not doubt appell…
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Moore v. Hall, 786 So. 2d 1264 (Fla. 2d DCA 2001)…reasonable fear that she was in “imminent” or “immediate and present” danger of becoming a victim of domestic violence. See Kopelovich v. Kopelovich, 26 Fla. L. Weekly D934, — So. 2d —, 2001 WL 332488 (Fla. Apr. 6, 2001). See also Cleary v. Cleary, 711 So. 2d 1302, 1302 n. 1 (Fla. 2d DCA 1998) (affirming issuance of injunction based upon “modest” evidence, but noting that 1997 amendments to section 741.30 require future petitioners to show reasonable cause to believe petitioner is in “imminent danger”). In tr…
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Zarudny v. Zarudny, 241 So. 3d 258 (Fla. 3d DCA 2018)…ce, the better practice is for the trial court to enter a temporary order under Chapter 741 while directing the parties to litigate custody and visitation matters in family court.” 947 So. 2d 635, 636 (Fla. 3d DCA 2007) (citing Cleary v. Cleary, 711 So. 2d 1302 (Fla. 2d DCA 1998)). ---PAGE 11--- A review of the injunction hearing transcript reveals that the trial court was especially cognizant of the child’s best interest and that the husband’s threatening and abusive behavior occurred “in front of th…
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- Tsavaris v. NCNB Nat'l Bank OF Fla. & Neofytos Theodore Tsangaris, 497 So. 2d 1338 (Fla. 2d DCA 1986)