Amy Hair v. Cammy Hair ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AMY HAIR,
Appellant,
v.
CAMMY HAIR,
Appellee.
No. 4D13-2063
[March 18, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Timothy P. McCarthy, Judge; L.T. Case No.
502013DR003796XX.
Michael L. Cohen, West Palm Beach, for appellant.
No brief filed for appellee.
PER CURIAM.
We reverse the final judgment of injunction for protection against
domestic violence.
Section 741.30(1)(a), Florida Statutes (2012), provides that a family or
household member may file a petition for protection against domestic
violence if that person is “either the victim of domestic violence as defined
in s. 741.28 or has reasonable cause to believe he or she is in imminent
danger of becoming the victim of any act of domestic violence.” See
Malchan v. Howard, 29 So. 3d 453, 454 (Fla. 4th DCA 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. (2012).
To determine whether the victim’s fear of imminent domestic violence
is reasonable, “‘the trial court must consider the current allegations, the
parties’ behavior within the relationship, and the history of the
relationship as a whole.’” Malchan, 29 So. 3d at 454 (quoting Giallanza v.
Giallanza, 787 So. 2d 162, 164 (Fla. 2d DCA 2001)).
In order to obtain an injunction against domestic violence, the
petitioner must be the object of “malicious harassment that consists at the
very least of some threat of imminent violence, which excludes mere uncivil
behavior that causes distress or annoyance.” Young v. Young, 96 So. 3d
478, 479 (Fla. 1st DCA 2012). “An isolated incident of domestic violence
that occurred years before the filing of the petition for injunction is
insufficient.” Arnold v. Santana, 122 So. 3d 512, 514 (Fla. 1st DCA 2013).
In this case, the petitioner failed to present sufficient evidence that she
was a victim of domestic violence or was in imminent danger of becoming
a victim of domestic violence. That a daughter does not wish to see or
interact with her mother is not a basis for the issuance of a domestic
violence restraining order. See Stone v. Stone, 128 So. 3d 239, 241 (Fla.
4th DCA 2013). Nor did appellant’s violation of an order entered as part
of a domestic relations case support the entry of the restraining order in
this case.
We therefore reverse and remand with instructions to vacate the final
judgment of injunction for protection.
GROSS, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
-2-