Third District Court of Appeal
State of Florida
Opinion filed June 7, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1693
Lower Tribunal No. 16-13656
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Iraelio Alcolea Leal,
Appellant,
vs.
Orielyn Diaz Rodriguez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Cristobal D. Padron & Assoc., P.A. and Cristobal D. Padron, for appellant.
Orielyn Diaz Rodriguez, in proper person.
Before ROTHENBERG, LOGUE and LUCK, JJ.
LUCK, J.
Husband Iraelio Alcolea Leal and wife Orielyn Diaz Rodriguez have been
married for five years and have a child together, but by June 2016 the marriage had
fallen apart. Diaz petitioned for a domestic violence injunction based on an
incident on June 3. The trial court, after an evidentiary hearing, granted the
petition and entered the “final judgment of injunction for protection against
domestic violence with minor child(ren).” Leal appeals the final injunction
because, he contends, it was not supported by competent substantial evidence. We
disagree, and affirm.
The trial court may grant an injunction where “the petitioner 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.” § 741.30(6)(a), Fla.
Stat. (2016). “Domestic violence” is “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.” Id. § 741.28(2). Domestic violence, in sum, “requires some showing of
violence or a threat of violence.” Young v Smith, 901 So. 2d 372, 373 (Fla. 2d
DCA 2005). General harassment, general relationship problems, and uncivil
behavior are not enough. Id.; Randolph v. Rich, 58 So. 3d 290, 292 (Fla. 1st DCA
2011).
“In determining whether a petitioner has reasonable cause to believe he or
she is in imminent danger of becoming a victim of domestic violence, the court
shall consider and evaluate,” among other factors, “[t]he history between the
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petitioner and the respondent, including threats, harassment, stalking, physical
abuse”; “[w]hether the respondent has attempted to harm the petitioner or family
members or individuals closely associated with the petitioner”; “whether the
respondent has physically restrained the petitioner from leaving the home”; and
“whether the respondent has destroyed personal property” belonging to the
petitioner. Id. § 741.30(6)(b)(1)-(10). That is, the trial court must consider “the
current allegations, the parties’ behavior within the relationship, and the history of
the relationship as a whole.” Gill v. Gill, 50 So. 3d 772, 774 (Fla. 2d DCA 2010).
Here, Diaz (the wife) and Leal (the husband) had been having problems for
the last two years.1 When they were still living together, Leal would not let Diaz
work, have friends, or have a relationship with her family. Leal would control
Diaz’s time and money. When Leal finally let Diaz work, he would accuse her of
being somewhere else if she were five minutes late. When Leal would get upset
with Diaz, he would “turn violent” and try to take her immigration paperwork.
Diaz testified that the last time Leal hit her was in 2015. When Diaz finally ended
the relationship for good in August 2015, Leal threatened to leave her without her
car, license plate, and money.
1 The facts are taken from Diaz’s testimony at the injunction hearing. The only
two witnesses were Diaz and Leal, and the trial court credited Diaz’s testimony
and discredited Leal’s. Leal does not challenge the trial court’s credibility finding
on appeal.
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After the separation, Diaz and Leal would speak by telephone about their
son but Leal would make offensive comments. Diaz then stopped talking to Leal
by telephone and would only communicate via text message but Leal still would
make the same comments.
The relationship came to a boil on June 3, 2016. On that day, Diaz met Leal
in the parking lot of her apartment building to exchange their son. She held a
backpack with their son’s aerosol machine. Leal came toward her using offensive
expressions and ordering their son to take the backpack. Diaz asked Leal to take
the backpack instead as it was very heavy. Leal continued to use offensive
language so Diaz put the bag down and turned to leave. Leal ran up to Diaz and
said “f**kin’A, I’m going to destroy your life, you don’t know who I am, my name
is Iraelio Alcolea Leal with a capital I. Your mother and your father are going to
cry. And you are safe because you are the mother of my son, if not I will destroy
your life.”
From this evidence, we conclude, as the trial court did, that Diaz established
reasonable cause to believe she was in imminent danger of becoming a victim of
domestic violence. Leal angrily came at Diaz on June 3, 2016, used profanity,
asked her if she knew who he was, and told her that he would destroy her life and
make her parents cry. The fact that Leal would make Diaz’s parents cry indicated
that this was more than an uncivil fight or relationship squabble about the
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separation or child-sharing arrangement. Rather, Leal’s make-your-parents-cry
statement was a threat that what he would do to destroy Diaz would be so bad as to
make her parents upset to the point of tears. Together, the physical act of
approaching Diaz from his car, cursing at her, telling her he was going to “destroy”
her life and make her parents cry, demonstrate a threat by Leal to be violent
towards Diaz.
Diaz’s belief, moreover, that Leal threatened her with violence was
objectively reasonable. See Randolph, 58 So. 3d at 292 (“[T]he law requires that
the party seeking the injunction must present sufficient evidence to establish the
objective reasonableness of his or her fear the danger of violence is ‘imminent.’”).
Considering the factors in section 741.30(6)(b), as the court must, Leal had turned
violent against Diaz before, and as recently as 2015. Leal controlled Diaz’s
relationships with family and friends. Leal restricted Diaz from leaving their
home. Leal tried to take away Diaz’s immigration paperwork, and threated to take
away her car, license and money. And Leal’s confrontation with Diaz was in front
of their child, in the parking lot of Diaz’s apartment building. Given these facts,
Leal’s assurance that “you are safe” because Diaz was the mother of his son did
not make Diaz’s belief any less reasonable. That they shared a child had not
stopped Leal from confronting Diaz in the parking lot, sending offensive text
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messages, being violent with her in the past, and controlling her friends, family,
money, and work.
This case is most similar to Giallanza v. Giallanza, 787 So. 2d 162 (Fla. 2d
DCA 2001), where the court found the evidence sufficient to support the initial
injunction. Id. at 164 (“[W]e agree that the Wife’s allegations in her initial petition
were sufficient to warrant the trial court’s entry of the initial injunction in July
1995.”). There, in a 1995 petition for domestic violence injunction, the wife
alleged that her husband slammed her into a door jamb in 1985, wrapped his hands
around her neck in 1987, and “had recently been very angry and verbally abusive
to her due to the parties’ impending divorce.” Id. at 163.
Here, too, we have evidence of prior violence and angry and abusive
conduct. The prior violence, however, was much more recent (one year rather than
eight) and the angry and abusive conduct was more specific and severe. Together
with Leal’s controlling behavior and attempts to take Diaz’s immigration
documents, we conclude that there was competent substantial evidence supporting
the trial court’s finding that Diaz had reasonable cause to believe she was in
imminent danger of becoming a victim of domestic violence.
Affirmed.
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