Here, the Former Wife's evidence was legally insufficient to meet the statutory requirements for issuance of an injunction against domestic violence. The Former Wife did not testify that she was the victim of any act of domestic violence. The only allegation of any actual violence is that of the pushing incident in February 2008. However, an 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.
CASE LAW -
GILL v. GILL
Daniel David GILL, Appellant, v. Krystal Ann GILL, Appellee.
No. 2D09-2746.
-- December 29, 2010
Joseph C. Bodiford of Bodiford Law, P.A., Tampa, for Appellant.No appearance for Appellee.
Daniel David Gill (the Former Husband) appeals the final judgment of injunction against domestic violence entered against him and in favor of Krystal Ann Gill (the Former Wife). Because the evidence presented at the evidentiary hearing failed to show that the Former Wife was either the victim of domestic violence or that she had an objectively reasonable fear that she was in imminent danger of becoming the victim of domestic violence, we reverse the final judgment and vacate the injunction.
The Former Wife filed her petition for injunction for protection against domestic violence in April 2009. In that petition, she alleged that the Former Husband had pushed her during an argument in February 2008. She also alleged that she and the Former Husband engaged in a yelling match outside her house during a custody exchange in April 2009. In the petition, the Former Wife alleged that during the yelling match, the Former Husband “drove his car into me.” The Former Wife did not allege any acts of violence or threatened violence between the parties at any time between February 2008 and April 2009, the parties were currently living separately, and the Former Wife currently had a domestic violence injunction entered against her and in favor of the Former Husband.
In addition to the allegations concerning herself, the Former Wife also alleged in her petition that the Former Husband had beaten and punched the parties' minor child, B.G., in October 2008, November 2008, and April 2009. However, the Former Wife did not seek an injunction for protection against domestic violence in favor of B .G. Based on the allegations in the petition, the trial court issued a preliminary ex parte injunction against domestic violence and ordered an evidentiary hearing on the Former Wife's petition.
At the evidentiary hearing, the Former Wife testified that she arrived home from work on April 15, 2009, to find the Former Husband sitting in his car in her driveway waiting for B.G. to come out of the house. Because she could not park in her driveway, the Former Wife drove to a neighbor's house, parked there, and walked back to the house. While the Former Wife had alleged in her petition that the Former Husband “drove his car at me” when she returned to the house, she did not testify to this act at the evidentiary hearing. Instead, the Former Wife testified only that a yelling match ensued between her and the Former Husband upon her return to the house and that the Former Husband threatened that she would be going to jail for violating the domestic violence injunction against her by approaching his car. The Former Wife also admitted that the Former Husband remained in his car during the entire incident. The Former Husband essentially corroborated the Former Wife's testimony about what had happened between them during this incident.
The court also heard testimony from B.G. about the allegations of violence against her. B.G. testified that several days before the incident between her parents, the Former Husband had come to pick her up after school and had punched her and slapped her when she was not waiting for him where she was supposed to be. She testified that the Former Husband injured her lip during this altercation and that she had bruises on her arm the next day. The Former Wife offered photos that allegedly showed the injuries to B.G., but everyone at the hearing agreed that the photos were too blurry to be useful.
The Former Husband then indicated that he wanted to call as a witness a friend of his who saw B.G. later on the day of the alleged punching and slapping incident. The Former Husband indicated that this witness would testify that B.G. was fine that night and had no injuries. The witness was called into the courtroom, but, without articulating any reason, the trial court refused to allow the Former Husband to elicit any testimony from this witness. Ultimately, the trial court granted the permanent injunction without ever considering testimony from the Former Husband's witness. The Former Husband now appeals the final judgment of injunction, contending that it is not supported by competent, substantial evidence.
Section 741.30(1)(a), Florida Statutes (2009), provides for the issuance of an injunction in favor of any family or household member, as defined in section 741.28(3), who is a victim of domestic violence or who “has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Section 741.28(2) defines “domestic violence” 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.” When considering whether a petitioner has reasonable cause to fear becoming the victim of imminent 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.” Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999)); see also § 741.30(6)(b).
Here, the Former Wife's evidence was legally insufficient to meet the statutory requirements for issuance of an injunction against domestic violence. The Former Wife did not testify that she was the victim of any act of domestic violence. The only allegation of any actual violence is that of the pushing incident in February 2008. However, an 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. Compare Jones v. Jones, 32 So.3d 772, 773-74 (Fla. 2d DCA 2010) (finding that a pushing incident that occurred three years before the injunction was filed was not sufficient to support the issuance of an injunction against domestic violence), with Giallanza, 787 So.2d at 163 (finding that allegations of actual violence eight to ten years before the petition was filed were sufficient to support the issuance of the injunction when coupled with allegations that the husband had “recently been very angry and verbally abusive ․ due to the parties' impending divorce”).
Further, the Former Wife did not present sufficient evidence to establish that she had an objectively reasonable basis to believe she was in imminent danger of becoming the victim of any act of domestic violence. The only evidence presented at the hearing was that the Former Wife engaged in a yelling match with the Former Husband through a closed car window in the driveway of her house. She testified that when she found the Former Husband seated inside his car in her driveway, she drove away, parked at a neighbor's house, and then walked back to the house. She admitted that the Former Husband never got out of his car. Moreover, the only threat the Former Husband allegedly made was that the Former Wife would be going to jail because she had violated the domestic violence injunction already in place against her by approaching the Former Husband's car. Such generalized threats to engage in unpleasant, but not violent, behavior are not sufficient to support the issuance of a domestic violence injunction. See, e.g., Jones, 32 So.3d at 774 (holding that injunction was improperly issued when there was no evidence of actual violence or threats of violence); Oettmeier v. Oettmeier, 960 So.2d 902, 903, 905 (Fla. 2d DCA 2007) (holding that injunction was not properly issued based on threats to make the petitioner's life miserable); Kopelovich v. Kopelovich, 793 So.2d 31, 33 (Fla. 2d DCA 2001) (holding that threats to harm the wife in court and destroy her financially were not sufficient to establish an objectively reasonable fear of domestic violence). Accordingly, since the Former Wife failed to prove that she was either the victim of domestic violence or that she had an objectively reasonable basis to believe that she was in imminent danger of becoming the victim of domestic violence, the trial court erred by granting the petition and issuing the permanent injunction.
Further, under the specific facts of this case, the Former Wife's allegations concerning the Former Husband's violent acts toward B.G. cannot support the issuance of the injunction. Notably, the Former Wife did not seek an injunction on behalf of B.G. Thus, while the evidence might arguably have been sufficient to support the issuance of an injunction against the Former Husband for the protection of B.G., see Moore v. Pattin, 983 So.2d 663, 664-65 (Fla. 4th DCA 2008) (finding evidence that the father disciplined his daughter by hitting her with a belt and a shoe was sufficient to support the issuance of an injunction for protection against domestic violence in favor of the daughter), such an injunction was neither requested nor issued.
Since no injunction in favor of B.G. was requested, the Former Husband's alleged violence toward B.G. is relevant only to determining whether his actions gave the Former Wife an objectively reasonable fear that the Former Husband would turn his anger and violent actions toward her. However, the testimony at the hearing concerning the Former Husband's actions was that he was rough with B .G. because she was misbehaving and not complying with her parents' instructions concerning where she was to be after school. There was no evidence to support even an inference that the Former Husband's somewhat misguided means of discipline would be turned on the Former Wife. Under these circumstances, the Former Husband's actions toward B.G. cannot support the issuance of the injunction in favor of the Former Wife.
Finally, we note that it appears that the trial court entered this injunction out of frustration with the parties' bickering back and forth in court. Recognizing that the Former Wife already had an injunction against domestic violence in place against her, the court stated, “I'm going to enter Ms. Gill's injunction, so the two (2) of you stay away from each other.” However, notwithstanding the trial court's good intentions, the injunction in this case appears to be nothing more than the improper belated issuance of a mutual injunction. See § 741.30(1)(i) (providing that “[t]he court is prohibited from issuing mutual orders of protection” unless each party meets the statutory requirements for issuance of an injunction); see also Martin v. Hickey, 733 So.2d 600 (Fla. 3d DCA 1999) (“While we have some sympathy for the trial judge's apparent belief that it could do no harm to enter what, in effect, were mutual restraining orders, the one presently under review is not, as required, independently supported by the pertinent evidentiary requirements.”). A mutual injunction cannot issue when the evidence offered at the hearing is legally insufficient to meet the statutory requirements, as was the case here.
In the absence of sufficient evidence to meet the statutory requirements or statutory authority for the issuance of a mutual injunction, the trial court was not permitted to enter a permanent injunction against domestic violence against the Former Husband under these facts. Accordingly, we reverse the judgment and vacate the injunction.
Reversed and remanded with instructions to vacate the injunction.
VILLANTI, Judge.
KHOUZAM and MORRIS, JJ., Concur.
We only support organizations who show an understanding that children need both parents, and that either parent is equally capable of the choice to perpetrate hate or declare peace.
Prostitution Marriage
ReplyDeleteIn 2000 I met what I truly believed to be my soul mate. A woman from the Philippines, a devote Christian, with a firm belief in family values. She was my ideal. Although there is so much to tell I will keep it brief and to the main points. In 2002 we married there, in Davao City. After several visits and getting to know each other well. In 2004 she came to this country, we settled in to our new home there was love and laughter cuddles and conversation, and in 2005 we had a son John Michael, he was my greatest wish come true, and the biggest thrill in my life, I could not envisage a single day without him, and every day I could not wait to get home to be with him. From the first month we started sending money to the Philippines to support her family and invest in a future for ourselves, (A Palm Tree Plantation) this was the agreed deal that we will eventually go back there as a family to live. And that is a very good future for us. But all this went sour not long after she gained her UK citizenship, in 2009, she became demanding, threatening and even aggressive, and by using our son to manipulate me into sending increasing amounts of money to the Philippines, the arguments escalated to a point where I could no longer cope with the distress, it effected my job my life and my purpose. In 2008 she took a bank loan for £7,500, which made our own finances suffer, this went to the Philippines, (she says for our future). In February of 2011 she left the marital home and moved in with a black guy. Since then I have not seen my son due to her false allegations of unreasonable behaviour. I have recently gone through a PSYCHOLOGICAL THERAPY COURSE FOR MENTAL CRUELTY. I no longer see my son, and this hurts too much every day is the same I wake up crying I go to sleep crying. I know she never intended to stay married. Now all I do is grieve. I am 56 years old now. And although when we first met my age did not matter. But now she refers to me as THE GULLIBLE OLD GIT. The real purpose of this is for her to keep my investment in the land in the Philippines. And of course the benefit of her family. And by using false allegations of domestic violence. The main victim in all of this is a young boy who has been separated from his father, and all for the sake of a visa, and financial gain.
Fraud is a crime……………. Marriage is not an immigration deal………………A child should never be used as a weapon.
John Brookes. Walsall, West Midlands. UK
It's human nature to seek out a partner in life, and to possibly marry and have children. Unfortunately the matrimonial establishment, as we are all aware, is being methodically torn down by a demoralized society. Sadly the divorce rate is still on the rise and the foundation of marriage is being devalued and is crumbling. As adults we learn to adapt and move on when divorce attacks our lives but for children this is another story. They are the real victims of divorce and unfortunately they will suffer dearly from our selfishness and in most cases follow the same path of destruction if not worse.
DeleteAs a nation we have been granted certain civil rights by our constitution. Through the years it has been amended to better the lives of many Americans. The two most notable changes have come to Women in the 1920s and with African Americans in the 1960s. These rights were long overdue for both segments of our nation but thankfully we realized our mistakes and corrected them. This was not an easy journey for either of these crusades but through dedication and perseverance the bells of liberty rang loudly and victory was achieved.
Unfortunately we have reached yet another fork in the road and with that comes another challenge to the American people. "We've worked hard for women's rights, but we have to watch out that the pendulum doesn't swing the other way" says Ruthie J. of the Reach FM. Ironically the pendulum has already swung far to one side and this time the male gender is being demonized by erroneous and fraudulent information. Males are being portrayed as callus, uncaring, and without emotion. We are being taught that men represent 95% of abuse in this nation against women. These and many other false statistics are being recklessly strewn throughout society and none of it is true. Yes, women are being abused by men that is a fact. striking a woman is abhorrent to the highest degree and should be dealt with appropriately but men are abused at an equal rate and they are being ignored. According to a study by the Center for Disease Control men represent 38% of domestic violence related injuries. Compound that with the fact that only 0.9% of men report abuse verses 8.5% of women and I think we have a pretty equal degree of violence between partners.
The cornerstone of this "abuse" is VAWA the Violence Against Women Act. It was passed into law by Bill Clinton in 1994 and has been extended by every subsequent President. This law funnels Billions of dollars into discriminatory education and propaganda that violates men's civil rights. Many times DVIs or Domestic Violence Injunctions are used as a tool in divorce, child custody or just vengeance against a partner, most often against males. This is because the system of acquiring a DVI is simple and requires no evidence, witnesses or prior police reports. Just the word of an alleged victim making a claim of abuse. The repercussions of these orders are devastating and many times result in a violation, arrest and complete destruction of one's life. Even in cases when they are dismissed, a serious blemish remains on the falsely accused forever; how does that look to potential employers who almost always perform background checks prior to employment? This must be stopped and a better system of protecting all victims of domestic violence should be put in place.
I hope to help bring awareness to gender discrimination and help provide support for men who are abused. There are programs to help women of abuse but nothing for men. My website will provide more information on the facts, my personal experiences and the stories of those who have been victims of this heinous tactic of relationship vengeance. Men and women should truly have equal rights and currently the scales are unjustly tilted. Let's work together to end domestic violence and not vilify one gender as inherently abusive. "United we stand, divided we fall" A powerful statement that we must never forget.
Thank you,
Tom Lemons
Founder, www.falsedvireports.com
The Violence Against Women Act Ignores Half the Problem ~ By Anna Rittgers
DeleteThe 2011 Violence Against Women Reauthorization Act (VAWA),provides funding for programs to address domestic violence and will expand the act’s provisions to include services for gays and lesbians. Theoretically, male victims of violence are eligible for help, too. But did you know that? I thought not.
The problem with reauthorizing VAWA is that doing so would perpetuate the notion that domestic violence is something that happens only to women. While it is true that VAWA has evolved over time and now ensures that male victims of partner violence can avail themselves of VAWA benefits and services, the very name of the act implies otherwise. It is quite likely that a male victim would not know he can seek help, given the name of the act.
The image of the abuser is almost always a guy. But this simply isn’t the case. One of the pioneers of the study of family violence was sociologist Richard J. Gelles. Gelles wrote a seminal 1999 article for the old Women’s Quarterly, then a publication of the Independent Women’s Forum, on the “hidden victims” of violence.[i] Gelles admitted that 25 years earlier he had overlooked something important when, in the course of doing research, he meet a couple he called Faith and Alan. Faith had been beaten by boyfriends, her ex-husband, and her husband. Faith’s troubles became the focus of Gelles’s article. Gelles barely noted Faith’s violence towards men, which included breaking Alan’s bones and stabbing a man while he read the newspaper. Faith’s violence merited a mere footnote.
We know more about intimate violence directed at men than we did when Gelles wrote his article. But for cultural reasons, it is very difficult for male victims of domestic violence to seek help. Men are seen to be physically stronger than women, and so he should be able to just “take it.” Furthermore, domestic violence awareness campaigns are horribly one-sided, and almost always portray males as the aggressor and females as victim. Police are often hardwired to view men as the perpetrator. If a man calls 911 for help when he’s being attacked by his spouse or partner, he is often subject to arrest, even if he is the only one with physical injuries.
For seventeen years, there has been unequal treatment before the law. Female aggressors are keenly aware of this unequal justice, and a 2010 study on men who sustain abuse at the hands of their female partners discovered that 67.2% reported their female aggressors made false allegations of spousal abuse. [ii] Of those with children, 48.9% of the men reported that their partners made false allegations of child abuse.[iii] In other words, VAWA’s myopic view of who perpetrates domestic violence gives female abusers an additional avenue to torment their spouses.
The name of the Act itself makes it clear that the law’s focus is to address violence against women in particular, not the general problem of domestic violence. The specialized training that judges and law enforcement officers receive ignores the reality that women are as likely as men to be perpetrators of violence. This creates a justice system that treats male aggressors more harshly than female aggressors of the same crime.
“Relationship Estrangement and Interference is a form of Domestic Violence using Psychological abuse.”
ReplyDelete~ Joan Kloth-Zanard of PAS Intervention.
www.pas-intervention.com
PAS Intervention stands for Parental Alienation Support and Intervention. It is an International Non-profit organization to End Child Abuse and Parental Alienation.
HOW DID CHILDREN OF DIVORCE GET STUCK WITH THE VISITATION PLAN THAT AFFORDS THEM ACCESS TO THEIR NON-RESIDENTIAL PARENT ONLY ONE NIGHT DURING THE WEEK AND EVERY OTHER WEEK-END?
ReplyDeleteWhat is the research that supports such a schedule? Where is the data that confirms that such a plan is in the best interest of the child?
Well, reader, you can spend your time from now until eternity researching the literature and YOU WILL NOT DISCOVER ANY SUPPORTING DATA for the typical visitation arrangement with the non-residential parent! The reality is that this arrangement is based solely on custom. And just like the short story, "The Lottery," in which the prizewinner is stoned to death, the message is that deeds and judgments are frequently arrived at based on nothing more than habit, fantasy, prejudice, and yes, on "junk science."
This family therapist upholds the importance of both parents playing an active and substantial role in their children's lives----especially in situations when the parents are apart. In order to support the goal for each parent to provide a meaningfully and considerable involvement in the lives of their children, I affirm that the resolution to custody requires an arrangement for joint legal custody and physical custody that maximizes the time with the non-residential----with the optimal arrangement being 50-50, whenever practical. It is my professional opinion that the customary visitation arrangement for non-residential parents to visit every other weekend and one night during the week is not sufficient to maintain a consequential relationship with their children. Although I have heard matrimonial attorneys, children's attorneys, and judges assert that the child needs the consistency of the same residence, I deem this assumption to be nonsense. I cannot be convinced that the consistency with one's bed trumps consistency with a parent!
Should the reader question how such an arrangement can be judiciously implemented which maximizes the child's time---even in a 50-50 arrangement----with the non-residential parent, I direct the reader to the book, Mom's House, Dads House, by the Isolina Ricci, PhD.
Indeed, the research that we do have supports the serious consequences to children when the father, who is generally the non-residential parent, does not play a meaningful role in lives of his children. The book, Fatherneed, (2000) by Dr. Kyle Pruitt, summarizes the research at Yale University about the importance of fathers to their children. And another post on this page summarizes an extensive list of other research.
Children of divorce or separation of their parents previously had each parent 100% of the time and obviously cannot have the same arrangement subsequent to their parents' separation. But it makes no sense to this family therapist that the result of parental separation is that the child is accorded only 20% time with one parent and 80% with the other. What rational person could possibly justify this?
"Normal parents can put the needs of their children first. They know that demeaning and demonizing their partner harms the children, and however they may feel, they do not want to harm their children. The problem of brainwashing children arises when one or other parent or both put their needs first and use the children as weapons against each other. These are the adults who have personality disorders that go unrecognized in court. There both parents are given an equal hearing the problem occurs when one parent lies and cheats under oath, manipulates the judiciary and everyone in the case while the normal parent looks on in horror. Women will always be given the benefit of the doubt over men especially by men which is why so many men loose their children. The training of so called experts in the universities and in workshops has been in the hands of radical feminists for the last forty years as a result there is no level playing field between parents any longer. All I can say that I have seen children deprived of a loving parent reconnect after years of demonizing that parent. For other parents they have to live with the injustice for the rest of their lives their child or children are to damaged to ever know the truth." ~ Erin Pizzey
ReplyDeletePRO SE RIGHTS:
ReplyDeleteSims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."
Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.
Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.
Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."
Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."
Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.
Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."
Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."
NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."
Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."
Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).
Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."
Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."
Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."