WAYNE DARNELL ROBINSON

v.

NOEMI ROBINSON

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

WAYNE DARNELL ROBINSON,

Appellant,

v. Case No. 5D18-57

NOEMI ROBINSON,

Appellee.

________________________________/

Opinion filed November², 2018

Appeal from the Circuit Court for Osceola County, Patricia Strowbridge, Judge.

Troy W. Klein, of Troy W. Klein, P.A., West Palm Beach, for Appellant.

No Appearance for Appellee.

PER CURIAM.

Wayne Darnell Robinson (“Husband”) appeals the final judgment of injunction for protection against domestic violence entered against him and in favor of his estranged wife, Noemi Robinson (“Wife”). Because the evidence presented at the final hearing was legally insufficient to support the injunction, we reverse.

To obtain an injunction for protection against domestic violence under section 741.30(6)(a), Florida Statutes (2017), a petitioner must either be the victim of domestic

A domestic violence injunction must be supported by competent substantial evidence. Zapiola v. Kordecki, 210 So. 3d 249, 250 (Fla. 2d DCA 2017) (citing Leaphart v. James, 185 So. 3d 683, 685 (Fla. 2d DCA 2016)). And, “[w]hen evaluating whether competent, substantial evidence supports a trial court’s ruling, ‘[l]egal sufficiency . . . as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.’” Brilhart v. Brilhart ex rel. S.L.B., 116 So. 3d 617, 619 (Fla. 2d DCA 2013) (quoting Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)). “[T]he question of whether the evidence is legally sufficient to justify imposing an injunction is a question of law that we review de novo.” Pickett v. Copeland, 236 So. 3d 1142, 1144 (Fla. 1st DCA 2018) (citing Wills v. Jones, 213 So. 3d 982, 984 (Fla. 1st DCA 2016)).

The final hearing was relatively brief. Neither party was represented by counsel. Other than each party’s respective narrative testimony, no other witnesses or evidence were presented.¹ As previously indicated, stalking can constitute an act of domestic violence under section 741.28(2). Stalking is defined under section 784.048(2), Florida Statutes (2017), as “willfully, maliciously, and repeatedly follow[ing], harass[ing], or cyberstalk[ing] another person.” To prove “harassment” under this statute,² Wife had to show that Husband “engage[d] in a course of conduct directed at [her] which cause[d] substantial emotional distress to [her] and serve[d] no legitimate purpose.” § 784.048(1)(a), Fla. Stat. (2017). In determining whether the harassment has caused substantial emotional distress to support a finding of stalking, courts apply a reasonable person standard, not a subjective standard. Akin v. Jacobs, 230 So. 3d 1292,

2 There was no evidence presented at the hearing that anyone observed Husband physically following Wife and only a brief reference in Wife’s testimony to an unelaborated text sent by Husband to Wife’s brother, which is legally insufficient to constitute “cyberstalking” under section 784.048(1)(d). This subsection defines cyberstalking as “engaging 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.”

Wife’s testimony was that Husband had called her at work when she was not there, had “threatened” to call her “HR Department,” and had called her parents and brother to influence them to contact Wife to encourage her to communicate with Husband about resolving their marital difficulties. There was no testimony that Wife had lost her job or that her job was in jeopardy, nor was there any evidence that Husband had threatened Wife in these communications with any act of violence. There was also no evidence provided as to the frequency or the content of these communications. Simply put, the evidence at the hearing that Wife was the victim of domestic violence based upon being stalked by Husband was legally insufficient.

We next consider whether the evidence presented at the hearing showed that Wife had reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. This requisite fear of imminent danger, however, must be an objectively reasonable fear. Mitchell v. Mitchell, 198 So. 3d 1096, 1100 (Fla. 4th DCA 2016) (quoting Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA 2007)). In making this determination, trial courts “must consider ‘the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.’” Leal v. Rodriguez, 220 So. 3d 543, 545 (Fla. 3d DCA 2017) (quoting Gill v. Gill, 50 So. 3d 772, 774 (Fla. 2d DCA 2010)).

Husband categorically denied having any history of domestic violence. Wife presented no evidence of Husband having a history of threatening or abusive behavior. Additionally, there was scant testimony of the parties’ behavior within their relationship.

Accordingly, we reverse the final judgment of injunction for protection against domestic violence.

REVERSED.

ORFINGER, LAMBERT, and EISNAUGLE, JJ., concur.