MOHAMED SHAHEED BACCHUS, APPELLANT,
v.
HEBA BACCHUS, APPELLEE
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A husband appeals an order extending a temporary domestic violence injunction for one year. The court reverses, holding that the trial court improperly issued a series of temporary injunctions rather than conducting a full hearing on a permanent injunction, and remands for a proper hearing on whether a permanent injunction should be entered.
The trial court erred by extending the temporary injunction rather than conducting a full hearing on a permanent injunction. The statute does not contemplate a series of temporary injunctions in lieu of a permanent injunction. Additionally, the evidence presented—that the husband attempted to communicate through third parties regarding reconciliation—was insufficient to establish a reasonable fear of continuing domestic violence. The court reverses and remands for a new hearing on a permanent injunction.
[1] A temporary injunction for protection against domestic violence is effective for a fixed period not to exceed 15 days, and a full hearing must be set no later than the ex…
[2] An extension of a prior injunction for domestic violence requires evidence that a continuing fear of domestic violence exists and that the fear is reasonable based on all…
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Join FLexlaw to unlock all legal intelligence“The statute authorizing issuance of such an injunction contemplates that the injunction will last indefinitely, unless modified or dissolved.”
Establishes that permanent injunctions under Florida law are indefinite and not subject to automatic expiration
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Join FLexlaw to unlock all legal intelligenceA temporary ex parte domestic violence injunction was entered against the husband on November 28, 2011. By stipulation, it was extended for four month…
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Mohamed Shaheed Bacchus (Husband) appeals an order dated April 17, 2012, extending a temporary injunction against domestic violence in favor of his estranged wife, Heba Bacchus (Wife). We reverse.
A person may obtain an initial injunction for protection against domestic violence if he or she “is either the victim of domestic violence ... or has reasonable cause to believe that he or she is in imminent danger of becoming the victim of domestic violence ....”§ 741.30(6)(a), Fla. Stat. (2010). The statute authorizing issuance of such an injunction contemplates that the injunction will last indefinitely, *714unless modified or dissolved.1 Cox v. Deacon, 82 So.3d 827, 827 (Fla. 4th DCA 2011). The statute states:
The terms of an injunction restraining the respondent under subparagraph (a)l. or ordering other relief under sub-paragraph (a)7. shall remain in effect until modified or dissolved. Either party may move at any time to modify or dissolve the injunction. No specific allegations are required. Such relief may be granted in addition to other civil or criminal remedies.
§ 741.S0(6)(c), Fla. Stat. (emphasis added).
The statute also contains a provision for extending an ex parte injunction upon “good cause shown.” However, as a general rule, it is not to be entered for a period exceeding fifteen days. The statute provides:
(c) Any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.
§ 741.30(5)(c), Fla. Stat. (emphasis added). The clear purpose of this statute is to preserve the status quo pending a final evidentiary hearing. It does not contemplate entry of a series of temporary injunctions in lieu of a full hearing on a permanent injunction.
In this case, a temporary injunction for protection against domestic violence was initially entered ex parte against Husband and in favor of Wife on November 28, 2011.2 In accordance with the statute, a hearing on whether a permanent injunction should be entered was scheduled for December 13, 2011. See § 741.30(5)(c), Fla. Stat. In lieu of a hearing, Husband and Wife agreed to an extension of the injunction for a period of four months, or until April 13, 2012, at which time the injunction would expire.3 Wife was authorized to request a second extension pri- or to its expiration if there were any further incidents.
Prior to expiration of the temporary injunction, Wife moved for a second extension. After an evidentiary hearing, rather than enter a permanent, indefinite injunction, the trial court extended, for an additional year, the temporary injunction for domestic violence previously entered by stipulation of the parties. The April 17, *7152012 order made no findings to support the extension, apart from the general finding that there was “a reasonable continuing fear of domestic violence.4 Oral findings made at the hearing, however, indicate that the extension was based on Husband’s attempts to communicate with Wife through third parties.
Wife’s burden of proof for obtaining a permanent injunction (or an extension of an injunction under the previous statute) required her to prove that she was either the victim of domestic violence or had reasonable cause to believe that she was in imminent danger of becoming a victim of an act of domestic violence. See § 741.30(6)(a), Fla. Stat.; Sheehan v. Sheehan, 853 So.2d 523, 525 (Fla. 5th DCA 2003); see also Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001). In determining the reasonableness of Wife’s fear, the trial court was not limited to examining the circumstances occurring after the previous injunction was entered. See Patterson v. Simonik, 709 So.2d 189, 190 (Fla. 3d DCA 1998). The trial court could also consider the circumstances that initially led to the imposition of the injunction to determine whether Wife’s continuing fear of future violence was reasonable. Id. at 190; see also § 741.30(6)(b), Fla. Stat.; Sheehan, 853 So.2d at 525 (an extension of a prior injunction for domestic violence required evidence that a continuing fear of domestic violence exists and that fear was reasonable based on all the circumstances); Giallanza, 787 So.2d at 164 (“In attempting to ascertain whether the petitioner’s continuing fear is reasonable, for purposes of issuing injunction against domestic violence, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.”). In this case, however, the trial court erroneously limited Wife’s presentation of evidence to events that occurred after December 13, 2011. As a result, it was virtually impossible for Wife to meet her burden. At best, the evidence presented showed Husband had attempted to contact Wife through his uncle and that Wife was afraid Husband would be angry due to the pending divorce.
Evidence that Husband had communicated -with the Wife through third parties is not enough, standing alone, to show a reasonable fear of continuing violence, particularly when the subject of the communications is reconciliation. See Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999) (holding that telephone calls to petitioner from former boyfriend failed to justify reasonable fear of imminent danger of becoming victim of domestic violence, despite parties’ history, when calls ceased at petitioner’s request). Even harassment of the wife through third parties would be insufficient to warrant the imposition or extension of an injunction. Giallanza, 787 So.2d at 164 (stating that indirect harassment of wife by husband, such as by making unfounded calls to HRS and false reports to sheriffs office, would not support finding of objectively reasonable fear of imminent danger due to domestic violence); see also § 741.28, Fla. Stat. (defining “domestic violence” to mean “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.”).
*716A threat that Husband would kill Wife, rather than permit her to take his children away, would support a finding of a reasonable fear of continuing violence. At the hearing, Wife testified that such a threat was made by Husband to the children and thereafter communicated to her. The children did not testify. Inasmuch as Wife’s testimony contained hearsay not subject to an exception, this evidence could not be considered by the trial court to support extension of the injunction. See, e.g., Pittman v. State, 646 So.2d 167, 171-72 (Fla.1994) (holding witness’s testimony concerning what stepson had told him was inadmissible hearsay); see generally § 90.801(l)(c), Fla. Stat. (2009) (defining hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted”).
Because the current statute does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction and because there was insufficient evidence presented at the hearing to support the issuance of a permanent injunction, we reverse. However, because Wife was never given a full hearing on her request for an injunction and was precluded from presenting evidence that would support issuance of an injunction at the hearing on the extension, we remand for a new hearing on a permanent injunction, at which the court can consider the totality of the circumstances, including any incidents occurring prior to December 13, 2011, in determining whether a permanent injunction should be entered. If, after consideration of the factors set forth in section 741.30(b)(6), Florida Statutes, the court determines that wife is either the victim of domestic violence as defined in section 741.28 or has reasonable cause to believe that she is in imminent danger of becoming the victim of any act of domestic violence, it should enter a permanent injunction in her favor, which will continue until modified or dissolved.5 The temporary ex parte injunction originally entered in this case shall remain in full force and effect pending a full hearing.
REVERSED and REMANDED.
EVANDER, J., concurs.
GRIFFIN, J., concurs in part, dissents in part, with opinion.
concurring in part; dissenting in part.
I agree that a permanent injunction is required, but I am unable to agree with the majority that the trial court’s basis for extending the injunction was legally insufficient. In addition to all the other evidence before the court concerning Husband’s prior conduct and prior statements, Wife testified that, after entry of the earlier injunction, she continued to be contacted by two of Husband’s uncles on numerous occasions. One of these uncles testified that he knew about the injunction, but, nevertheless, contacted Wife seven or eight times to try to get her to reconcile with Husband, and, on one occasion, he attempted to set up a meeting with Wife. The uncle admitted he was in contact with Husband during this time, but denied that Husband had put him up to contacting Wife. The trial court found that the uncle was not credible on this point and that there had been efforts by Husband to communicate with Wife through the uncle. The trial court found that there were circumstances that would justify Wife’s “reasonable continuing fear *717of domestic violence . Viewed in the context of the already-existing injunction and Husband’s previous violent conduct and threats, these efforts by the uncle on behalf of Husband suggest something more than mere offers of reconciliation. These communications demonstrate that Husband violated the injunction, that he was willing to continue to subvert the injunction, and that he was willing to lie under oath about what he had done.
GRIFFIN, J.,
concurring in part; dissenting in part.
I agree that a permanent injunction is required, but I am unable to agree with the majority that the trial court’s basis for extending the injunction was legally insufficient. In addition to all the other evidence before the court concerning Husband’s prior conduct and prior statements, Wife testified that, after entry of the earlier injunction, she continued to be contacted by two of Husband’s uncles on numerous occasions. One of these uncles testified that he knew about the injunction, but, nevertheless, contacted Wife seven or eight times to try to get her to reconcile with Husband, and, on one occasion, he attempted to set up a meeting with Wife. The uncle admitted he was in contact with Husband during this time, but denied that Husband had put him up to contacting Wife.
The trial court found that the uncle was not credible on this point and that there had been efforts by Husband to communicate with Wife through the uncle.
The trial court found that there were circumstances that would justify Wife’s “reasonable continuing fear of domestic violence . Viewed in the context of the already-existing injunction and Husband’s previous violent conduct and threats, these efforts by the uncle on behalf of Husband suggest something more than mere offers of reconciliation. These communications demonstrate that Husband violated the injunction, that he was willing to continue to subvert the injunction, and that he was willing to lie under oath about what he had done.
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Maikel A. Sanchez v. Marin, 138 So. 3d 1165 (Fla. 3d DCA 2014)…12. Marin made no allegations in her petition (and never sought to [*1168] amend her petition to add allegations) that Sanchez set fire to Marin’s property or to property belonging to Olga Alvarez. The case relied upon by Marin, Bacchus v. Bacchus, 108 So. 3d 712 (Fla. 5th DCA 2013), is inapposite. In Bacchus, the wife filed a petition for injunction against domestic violence and a temporary injunction was issued. A final hearing was scheduled fifteen days later, for December 13, 2011. However, on that date…
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Scott v. Frederic A. Blum, 191 So. 3d 502 (Fla. 2d DCA 2016)…hing indicates that Mr. Blum was an intended recipient. Cf. Branson v. Rodriguez-Linares, 143 So. 3d 1070, 1071 (Fla. 2d DCA 2014) (concluding that sending more than 300 emails to the petitioner constituted evidence of stalking); Bacchus v. Bacchus, 108 So. 3d 712, 715 (Fla. 5th DCA 2013) (“Even harassment of the wife through third parties would be insufficient to warrant the imposition or extension of an injunction.”). Mr. Scott did not communicate words, images, or language via email or electronic communic…
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Dietz v. Dietz, 127 So. 3d 1279 (Fla. 1st DCA 2013)…y to remain in full force and effect during any period of continuance.” § 741.30(5)(c), Fla. Stat. (2012). Section 741.30 “does not provide for the issuance of a series of temporary injunctions in lieu of a permanent injunction.” Bacchus v. Bacchus, 108 So. 3d 712, 716 (Fla. 5th DCA 2013). While orders granting continuances are interlocutory and ordinarily non-reviewable, the order continuing the temporary injunction in force is subject to review. See Fla. R.App. P. 9.130(a)(3)B. Extending the temporary inju…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pittman v. State, 646 So. 2d 167 (Fla. 1994)
- Boyd v. State, 787 So. 2d 162 (Fla. 2d DCA 2001)
- Gustafson v. Mauck, 743 So. 2d 614 (Fla. 1st DCA 1999)
- Ginny L. Sheehan v. Sheehan, 853 So. 2d 523 (Fla. 5th DCA 2003)
- Singletary v. Hildra Jones, 709 So. 2d 189 (Fla. 4th DCA 1998)
- Patterson v. Simonik, 709 So. 2d 189 (Fla. 3d DCA 1998)
- COX v. Racquia Deacon, 82 So. 3d 827 (Fla. 4th DCA 2011)