ALAN J. WEISBERG, APPELLANT,
v.
TODD H. ALBERT, APPELLEE
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Weisberg appeals a domestic violence injunction entered against him by his former son-in-law Albert. The court reversed, holding that Albert failed to prove he was a victim of domestic violence or in imminent danger thereof based on a single threatening statement without overt acts.
The trial court abused its discretion in entering the injunction because Albert failed to establish that he was either a victim of domestic violence or had reasonable cause to believe he was in imminent danger of becoming a victim of domestic violence.
[1] A court may issue an injunction for protection against domestic violence only if the petitioner is a victim of domestic violence or has reasonable cause to believe they a…
[2] Domestic violence encompasses specific criminal offenses resulting in physical injury or death of one family or household member by another.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court may issue an injunction when the petitioner has established that he or she 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.'”
Establishes the legal standard required for obtaining a domestic violence injunction
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Join FLexlaw to unlock all legal intelligenceAt a school awards ceremony, Weisberg confronted Albert after Albert had argued loudly with Weisberg's daughter (Albert's former wife). Weisberg threa…
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Alan J. Weisberg appeals from a Final Judgment of Injunction for Protection Against Domestic Violence Without Minor Children. The injunction was sought against him by his former son-in-law, Todd H. Albert. We reverse because Mr. Albert neither proved that he was the victim *664of domestic violence nor that he had reasonable cause to believe he was in imminent danger of becoming a victim of domestic violence.1
The standard of review for an order imposing a permanent injunction is abuse of discretion. Malchan v. Howard, 29 So.3d 458, 454 (Fla. 4th DCA 2010) (citing Reiss v. Reiss, 17 So.3d 849, 850 (Fla. 3d DCA 2009)).
A trial court may issue an injunction when the petitioner has established that he or she 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.’ ” Id. (citing Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting section 741.30(l)(a), Fla. Stat. (2007))). “Domestic violence” is defined as “any assault,2 aggravated assault, battery ... or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2012). “In determining whether the [petitioner’s] fear is reasonable, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Malchan, 29 So.3d at 454 (quoting Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001)).
Here, Mr. Albert failed to present sufficient evidence that he was in imminent danger of becoming a victim of domestic violence. His basis for requesting the injunction was one isolated incident wherein Mr. Weisberg confronted him at his child’s school awards ceremony. After Mr. Albert had argued loudly with his former wife (Mr. Weisberg’s daughter), Mr. Weis-berg threatened, “If you ever try that again, you will be dead.” During this brief encounter, Mr. Weisberg neither physically touched Mr. Albert nor committed any other overt act indicative of an ability to carry out the threat or to justify a reasonable belief that violence was imminent. See Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction. Even a representation that the offender owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.”) (citations omitted); Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004) (holding that one man’s threat to “f ’ up and kill another man was insufficient to support an injunction where there is no overt act indicating an ability to carry out the threat). Moreover, both men testified and the trial court noted that they had enjoyed a “good relationship” up until that isolated incident.
Based on the foregoing, we conclude that the trial court abused its discretion in entering an injunction against Mr. Weis-berg, because Mr. Albert failed to establish that he was either the victim of domestic violence or that he had reasonable cause to believe he was in imminent danger of becoming a victim of domestic vio*665lence. We therefore reverse and remand for the trial court to vacate the injunction.
Reversed and Remanded.
GROSS, TAYLOR and FORST, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Pickett v. Copeland, 236 So. 3d 1142 (Fla. 1st DCA 2018)…nst stalking. A trial [*1144] court has broad discretion to grant an injunction, and we review an order imposing a permanent injunction for a clear abuse of that discretion. Noe v. Noe , 217 So. 3d 196, 199 (Fla. 1st DCA 2017) ; Weisberg v. Albert , 123 So. 3d 663, 664 (Fla. 4th DCA 2013). But the question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo. Wills v. Jones , 213 So. 3d 982, 984 (Fla. 1st DCA 2016). Section 784.0485(1), F…
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Selph v. Decirena Selph, 144 So. 3d 676 (Fla. 4th DCA 2014)…not supported by competent, substantial evidence. Accordingly, we reverse and remand the case to the trial court with instructions to vacate the injunction. An order imposing an injunction is reviewed for an abuse of discretion. Weisberg v. Albert, 123 So. 3d 663, 664 (Fla. 4th DCA 2013); Malchan v. Howard, 29 So. 3d 453, 454 (Fla. 4th DCA 2010). A trial court abuses its discretion by entering [*678] a domestic violence injunction when the ruling is not supported by competent, substantial evidence. See, e.g.…
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Mitchell v. Mitchell, 198 So. 3d 1096 (Fla. 4th DCA 2016)…ture threats without overt action implying imminence have been found to be insufficient. See Horowitz v. Horowitz, 160 So. 3d 530, 532 (Fla. 2d DCA 2015); Kunkel v. Stanford ex. rel. C.S., 137 So. 3d 608, 609 (Fla. 4th DCA 2014); Weisberg v. Albert, 123 So. 3d 663, 663 (Fla. 4th DCA 2013); Malchan v. Howard, 29 So. 3d 453, 454 (Fla. 4th DCA 2010); Oettmeier, 960 So. 2d at 903. Put generally, “uncivil behavior” and actions that “paint[] ... a typical, albeit unfortunate, picture of a domestic relationship gone…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boyd v. State, 787 So. 2d 162 (Fla. 2d DCA 2001)
- Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006)
- Ramon Berenguer, M.D. v. Pub. Health Tr. OF Dade Cnty., 886 So. 2d 321 (Fla. 3d DCA 2004)
- Ambrefe v. Ambrefe, 993 So. 2d 98 (Fla. 2d DCA 2008)
- Malchan v. Leis Howard, 29 So. 3d 453 (Fla. 4th DCA 2010)
- Reiss v. Reiss, 17 So. 3d 849 (Fla. 3d DCA 2009)