SAMMIE HOROWITZ, APPELLANT,
v.
MAUREEN P. HOROWITZ, APPELLEE
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Sammie Horowitz appeals a final judgment granting an injunction for protection against domestic violence issued to his estranged wife, Maureen P. Horowitz. The court reverses, finding insufficient competent, substantial evidence that Mrs. Horowitz was either a victim of domestic violence or in imminent danger of becoming one.
The court reversed, holding that Mrs. Horowitz failed to establish either basis for the injunction. The Facebook posts did not constitute cyberstalking because they were not directed at a specific person and did not cause substantial emotional distress. Additionally, the physical abuse incidents were too remote in time, and the other alleged behaviors were too vague to establish reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence.
[1] Cyberstalking, defined as a course of conduct to communicate words, images, or language by or through electronic mail or electronic communication directed at a specific p…
[2] A Facebook post made to one's own page, without tagging or directly addressing a specific person, does not constitute cyberstalking as it is not directed at a specific pe…
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Join FLexlaw to unlock all legal intelligence“Because there was not competent, substantial evidence establishing that Mrs. Horowitz was a victim of domestic violence or that she was in imminent danger of becoming a victim of domestic violence, we reverse.”
States the core holding of the case—the evidentiary insufficiency requiring reversal of the injunction.
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Join FLexlaw to unlock all legal intelligenceMrs. Horowitz sought an injunction alleging cyberstalking based on two Facebook posts by Mr. Horowitz: one containing lyrics to 'Secret Lovers' and an…
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Sammie Horowitz challenges a final judgment of injunction for protection against domestic violence issued for the protection of his estranged wife, Maureen P. Horowitz. Because there was not com*531petent, substantial evidence establishing that Mrs. Horowitz was a victim of domestic violence or that she was in imminent danger of becoming a victim of domestic violence, we reverse.
In her petition for an injunction, Mrs. Horowitz alleged both that she was the victim of domestic violence, namely cyber-stalking, and that Mr. Horowitz had engaged in behavior that led her to believe she was in imminent danger of becoming a victim of domestic violence. As this court explained in Branson v. Rodriguez-Linares, 148 So.3d 1070, 1071 (Fla. 2d DCA 2014), either basis, when proved by competent, substantial evidence, would support issuance of the injunction. After an evi-dentiary hearing, the trial court found that Mrs. Horowitz had presented sufficient evidence to support the allegations in her petition and granted the injunction. However, the trial court did not specify whether it was granting the petition because Mrs. Horowitz established that she actually was a victim of domestic violence or because she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. Thus, we address both bases.
Cyberstalking is a form of domestic violence against which a person may obtain an injunction. Id.
“Cyberstalk” means to engage in a course of conduct to communicate, or. to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
§ 784.048(l)(d), Fla. Stat. (2018). Mrs. Horowitz alleged that she was the victim of cyberstalking based on two posts on Mr. Horowitz’s Facebook page. The first post contained the lyrics to Atlantic Starr’s 1985 single “Secret Lovers.” The second of Mr. Horowitz’s posts contained the text of a private message conversation that Mrs. Horowitz had with a third party via her own Facebook account. Mrs. Horowitz testified that these posts showed Mr. Horowitz either “hacked” her computer or was somehow spying on her because she had recently been listening to “Secret Lovers” on her personal computer in the privacy of her own home and because her private message conversation would have only been observable by accessing her personal Facebook account. She also testified that unbeknownst to her, there was a key-logger program, which would track her computer use, installed on her personal computer and that Mr. Horowitz told her he had someone watching her. She did not present any evidence that Mr. Horowitz actually installed the keylogger.
Mr. Horowitz’s Facebook posts do not meet the statutory definition of cyberstalk-ing for two reasons. First, the posts were not “directed at a specific person.” § 784.048(l)(d). The testimony showed that Mr. Horowitz posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to Mr. Horowitz’s page and that Mrs. Horowitz was not “tagged” or mentioned, nor were the posts directed to her in any obvious way. Unlike email communication, which this court considered to be cyberstalking in Rodriguez-Linares, 143 So.3d at 1071, posts to one’s own Facebook page are not directed at a specific person but are instead posted for all of the user’s Facebook “friends” to see, depending on the user’s privacy settings. The testimony adduced at the hearing showed that Mrs. Horowitz was able to view the posts by visiting Mr. Horowitz’s Facebook page because the two were still “friends” on the social networking website. *532Although Mrs. Horowitz’s assertions that Mr. Horowitz somehow “hacked” into her Facebook account are disconcerting, that behavior alone does not amount to cyber-stalking as it is not an electronic communication. See Young v. Young, 96 So.3d 478, 478 (Fla. 1st DCA 2012) (“Ms. Young’s acts in the case at bar, which consisted of changing her husband’s password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalking, because they were not electronic communications by her of ‘words, images, or language ... directed at’ Mr. Young.”). Even considering the posts in the context of Mr. Horowitz’s statements that he had someone watching Mrs. Horowitz, they do not qualify as cyberstalking. See Arnold v. Santana, 122 So.3d 512, 513 (Fla. 1st DCA 2013) (reversing injunction where “Appellant sent [Ap-pellee] text messages in which he warned her to change her passwords because he was tracking everything she was doing, and informed her that he was also following her”).
Second, Mrs. Horowitz failed to show that the posts caused her “substantial emotional distress.” § 784.048(l)(d). She testified that the posts were “a matter of concern” to her and that they “prevented [her] from having any privacy within [her] own home.” The record is devoid of any other mention of Mrs. Horowitz’s reaction to the posts. Because her testimony as to her reaction to the posts was “conclusory and vague” it was insufficient to show that she had been a victim of domestic violence. See Alderman v. Thomas, 141 So.3d 668, 670-71 (Fla. 2d DCA 2014) (reversing injunction where petitioner testified “that she feels ‘insecure and unsafe with’ [respondent] and that he scares her”).
Having concluded that Mrs. Horowitz failed to show that she was the victim of domestic violence, we now turn to the issue of whether she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. We conclude that she did not.
In attempting to show that she was in danger of becoming a victim of domestic violence, Mrs. Horowitz testified as to three instances of past physical abuse on the part of the Mr. Horowitz, the most recent of which occurred no less than fifteen years prior to the filing of the petition. She further testified that “a few times over the years” he held his hand in the shape of a gun, pointed it at her, and stated “til death do us part.” She added that Mr. Horowitz would “routinely” stand in the doorways of rooms she was in and block her from leaving, which she found to be intimidating. Mrs. Horowitz could not provide a specific time or place that Mr. Horowitz engaged in these behaviors. Near the end of her direct examination, the following exchange occurred:
[Counsel]: Are you afraid of this man?
[Mrs. Horowitz]: Yes.
[Counsel]: Are you afraid he’ll hurt you physically?
[Mrs. Horowitz]: Eventually, yes.
The physical incidents identified by Mrs. Horowitz are too remote to be considered reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. See Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (“[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.”); Jones v. Jones, 32 So.3d 772, 773 (Fla. 2d DCA 2010) (reversing injunction where petitioner presented evidence of a pushing incident occurring three years prior and a statement from the respondent that he *533was not threatening wife “yet”). Likewise, the allegations regarding Mr. Horowitz’s “finger-gun” gesture, his habit of “routinely” blocking Mrs. Horowitz’s path, and her statement that she was afraid he would eventually hurt her, although troubling, are too vague to provide competent, substantial evidence supporting the injunction. See Alderman, 141 So.3d at 671-72.
Reversed.
WALLACE and LUCAS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Scott v. Frederic A. Blum, 191 So. 3d 502 (Fla. 2d DCA 2016)…made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.” David, 189 So. 3d at 875 (citing Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091-92 (Fla. 3d DCA 2014)). In Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015), this court stated: Mr. Horowitz’s Facebook posts do not meet the statutory definition of cyber-stalking for two reasons. First, the posts were not “directed at a specific person.” § 784.048(l)(d). The testimony showed that…
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Mitchell v. Mitchell, 198 So. 3d 1096 (Fla. 4th DCA 2016)…lence,” mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions, and general conditional future 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.…
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Craft v. Fuller, 298 So. 3d 99 (Fla. 2d DCA 2020)…ded that they were, this ruling is contrary to the law. This court and others have held that postings on one's own social media page do not constitute actions "directed at a specific person" as a matter of law. For example, in Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015), this court held that postings on the defendant's own Facebook page were not "directed at" his ex- wife. Mr. Horowitz's Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts w…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gill v. Gill, 50 So. 3d 772 (Fla. 2d DCA 2010)
- Jones v. Jones, 32 So. 3d 772 (Fla. 2d DCA 2010)
- Young v. Young, 96 So. 3d 478 (Fla. 1st DCA 2012)
- Eddison Arnold v. Coralis Santana, 122 So. 3d 512 (Fla. 1st DCA 2013)
- Alderman v. Faylene A. Thomas, 141 So. 3d 668 (Fla. 2d DCA 2014)
- Branson v. Koren Rodriguez-Linares, 143 So. 3d 1070 (Fla. 2d DCA 2014)