DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JONATHAN CHISCUL,
Appellant,
v.
MICHELLE GOMEZ HERNANDEZ,
Appellee.
No. 4D20-287
[February 10, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan L. Alspector, Judge; L.T. Case No.
DVCE 19-008957 (63).
Joseph A. Costello of Costello Law, LLC, Fort Lauderdale, for appellant.
No appearance for appellee.
DAMOORGIAN, J.
Jonathan Chiscul (“the husband”) appeals the permanent injunction
for protection against domestic violence entered against him on behalf of
his estranged wife, Michelle Gomez Hernandez (“the wife”). We reverse
because the evidence was insufficient to support entry of the injunction.
It is uncontested that the parties had only known each other for a
period of six months. During that time, they married and separated. The
wife filed a petition for injunction against domestic violence almost two
months after their separation. In the petition, she alleged the following:
if the wife refused to have sex, the husband would throw her against the
wall, shake her and yell at her, and threaten to call police and immigration
officials on her; when the wife would leave the house to go to work or to
the store, the husband would get upset, call her vulgar names, and follow
her; and when the wife left him for good, the husband called and texted
her “nonstop” and followed her to a chiropractor’s appointment and
threatened her.
At the hearing on the petition, the wife generally testified that, during
the course of the marriage, she was fearful of the husband because he
threatened to call immigration, “would stand in the doorway” to prevent
her from leaving, accused her of cheating, and was jealous and controlling.
Regarding the allegation of forced sex, the wife testified “he forced me to
have sexual relations with him, I did not have sexual relations . . . but he
manipulate[d] me by saying that I have three partners, that he was going
to send me to immigration.” When asked by the court if the husband threw
her against the wall as alleged in the petition, the wife testified that the
husband did not throw her but that “he would grab me” and “shake me.”
The wife did not testify when this incident occurred.
Regarding recent threats or violence by the husband since the filing of
the petition, the wife testified that the husband called her on two
occasions, but she did not answer the phone and the husband did not
leave a message. When asked by the court for proof that the husband
called her, the wife admitted the husband did not call her and that “it was
a relative of his.” She then stated the husband wrote her “a few days
before” on Instagram or Facebook. The wife failed to provide any details
as to the contents of the message; the husband however, testified that he
wrote the wife to tell her that he was still going forward with the divorce.
The wife also testified that on one occasion, the husband followed her to a
chiropractor’s appointment. Notably, the wife did not allege the husband
was violent or threatened violence during either of those instances.
The husband, in turn, testified the wife threatened him, that she had
mood issues, was allegedly bi-polar, and that her petition was filed in
retaliation for the husband “starting the papers to get the divorce.” The
husband further testified the wife was the aggressor and that he never
touched her. The husband also alleged that he had no contact with the
wife in the two months since she left the marital home. After hearing both
parties’ evidence, the trial court granted a permanent domestic violence
injunction against the husband.
On appeal, the husband argues the trial court erred in entering the
permanent injunction because the wife’s allegations were either
insufficient as a matter of law or too remote in time for purposes of showing
that she was in imminent danger of becoming a victim of domestic
violence. We agree.
An order granting an injunction in the domestic violence context is
reviewed for abuse of discretion. Selph v. Selph, 144 So. 3d 676, 677
(Fla. 4th DCA 2014). “A trial court abuses its discretion by entering a
domestic violence injunction when the ruling is not supported by
competent, substantial evidence.” Id. at 677–78. “When evaluating
whether a trial court’s order granting an injunction is supported by
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competent, substantial evidence, ‘legal sufficiency . . . as opposed to
evidentiary weight, is the appropriate concern of an appellate tribunal.’”
Id. at 678 (quoting Stone v. Stone, 128 So. 3d 239, 240 (Fla. 4th DCA
2013)).
A trial court may issue a domestic violence injunction to protect a
petitioner who demonstrates that he or she has an objectively reasonable
apprehension that he or she is in “imminent danger of becoming the victim
of any act of domestic violence.” Randolph v. Rich, 58 So. 3d 290, 291
(Fla. 1st DCA 2011) (quoting § 741.30(1)(a), Fla. Stat. (2010)). “Domestic
violence” is defined as “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.” § 741.28(2), Fla. Stat. (2019).
In determining whether a petitioner has reasonable cause to believe
that he or she is in imminent danger of becoming a victim of any act of
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.” Zarudny v. Zarudny, 241 So. 3d 258, 262
(Fla. 3d DCA 2018) (citation omitted). “[T]he law requires more than
general relationship problems and uncivil behavior to support the
issuance of an injunction.” Randolph, 58 So. 3d at 292 (emphasizing that
the law requires the party seeking the injunction to “present sufficient
evidence to establish the objective reasonableness of his or her fear that
the danger of violence is ‘imminent’”).
In the present case, the wife’s testimony largely described incidents that
occurred before the parties’ separation. Since their separation, the only
contact between the parties was the wife’s allegation that the husband
followed her to a chiropractor’s appointment once and left her a message
informing her he was going forward with the divorce. These later acts were
simply insufficient, as a matter of law, to establish a fear of imminent
danger.
Turning to the one possible act of violence, as previously pointed out,
of particular importance is when or how frequently this occurred. The
parties were separated several months before the permanent injunction
was issued. Thus, the shaking incident could have occurred between two
to six months prior to the filing of the petition. The wife’s testimony of an
isolated incident, absent additional evidence, was insufficient to warrant
a permanent domestic violence injunction. See Selph, 144 So. 3d at 678–
79 (the wife’s allegation that the husband ordered his dog to attack her
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was insufficient to support entry of a domestic violence injunction because
the incident occurred five months prior, there was no medical or police
reports, and the parties had not been in contact with each other during
the three months before the filing of the petition); Phillips v. Phillips, 151
So. 3d 58, 59 (Fla. 2d DCA 2014) (finding evidence legally insufficient to
support a domestic violence injunction where, despite the allegations in
her petition, the wife acknowledged in her testimony that there had been
no violence or threats of violence from the husband since their separation
four months before filing the injunction).
Based on the record before us, the post-separation incidents do not
constitute acts or threats of violence by the husband. As for the
pre-separation shaking incident, the wife’s testimony failed to establish
when it occurred. Therefore, the court lacked competent, substantial
evidence from which to conclude the wife was “in imminent danger of
becoming the victim of any act of domestic violence.” § 741.30(1)(a),
Fla. Stat. (2019). Accordingly, the permanent domestic violence injunction
is reversed.
Reversed and remanded.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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