JONATHAN TATE v. VANESSA TATE ( 2018 )


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  •               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    JONATHAN TATE,                     )
    )
    Appellant,              )
    )
    v.                                 )                Case No. 2D17-4703
    )
    VANESSA TATE,                      )
    )
    Appellee.               )
    ___________________________________)
    Opinion filed December 14, 2018.
    Appeal from the Circuit Court for Pasco
    County; Alicia Polk, Judge.
    Keeley R. Karatinos of Mander Law Group,
    Dade City, for Appellant.
    Vanessa Tate, pro se.
    SILBERMAN, Judge.
    Jonathan Tate seeks review of a final judgment of injunction for protection
    against domestic violence. Vanessa Tate, Jonathan's sister, obtained an injunction
    based on evidence that he broke into her unoccupied home and stole her cats. We
    reverse because the court's finding that Vanessa had an objectively reasonable fear of
    becoming the victim of domestic violence is not supported by competent substantial
    evidence.
    Under section 741.30(1)(a), Florida Statutes (2016), an injunction for
    protection against domestic violence may be available to someone "who is either the
    victim of domestic violence . . . or has reasonable cause to believe he or she is in
    imminent danger of becoming the victim of any act of domestic violence." 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).
    "Where 'fear alone is the "reasonable cause" alleged to support the
    injunction, then not only must the danger feared be imminent but the rationale for the
    fear must be objectively reasonable as well.' " Zapiola v. Kordecki, 
    210 So. 3d 249
    , 250
    (Fla. 2d DCA 2017) (quoting Oettmeier v. Oettmeier, 
    960 So. 2d 902
    , 904 (Fla. 2d DCA
    2007)). This court reviews the issuance of an injunction on this basis for competent
    substantial evidence. 
    Id.
    In this case, the trial court found that Vanessa had an objectively
    reasonable fear of becoming the victim of domestic violence based on evidence that
    Jonathan broke into her unoccupied home and stole her cats. The court reasoned as
    follows:
    [H]e knew he wasn't supposed to be [in Vanessa's house].
    He was creeping around; he used a flashlight; he didn't turn
    on the lights. He wiped the doorknob before he closed it.
    He used his shirt to open the door. He clearly knew he
    wasn't supposed to be there. He went into someone's home
    without her permission, that's what she's testified to.
    ....
    -2-
    He went inside her home without her permission;
    invaded her privacy and her space without her permission. I
    think that would install [sic] fear in anyone. I think that's—a
    reasonable person would be in fear of that person that broke
    into their home.
    This evidence was insufficient to establish that Vanessa had an objectively
    reasonable fear of becoming the victim of domestic violence. Vanessa did not testify to
    any acts of violence toward her or threats of violence by Jonathan. Indeed, Vanessa
    did not even establish any danger to her cats.1 Instead, she presented evidence that
    she and Jonathan rescued the cats together after he had moved his possessions into
    her home. After Jonathan moved out, he stealthily entered the home and stole the cats
    so he could keep them as pets in his own home. However, he did not use any force in
    his entry or commit any acts of violence while in the home. He simply took the cats and
    refused to give them back.
    Under these circumstances, the court erred in entering the injunction for
    protection against domestic violence. See Phillips v. Phillips, 
    151 So. 3d 58
    , 59 (Fla. 2d
    DCA 2014) (reversing an injunction for protection against domestic violence because
    the estranged wife acknowledged "that there had been no violence or threats of
    violence from" the husband); Giallanza v. Giallanza, 
    787 So. 2d 162
    , 164 (Fla. 2d DCA
    2001) (reversing the extension of an injunction because it was not based on any acts or
    threats of violence towards the wife but was based on evidence "that she is upset by the
    Husband's dealings with their children and that she believes that the Husband is using
    the children to harass her").
    1Under  the statute, such evidence would be insufficient in itself to
    establish a basis for a domestic violence injunction.
    -3-
    We are not persuaded that the result should be changed based on
    Vanessa's testimony that Jonathan has had violent outbursts in the past that make her
    fear for her well-being and safety. These "violent outbursts" were not directed at
    Vanessa and included actions like egging old roommates' cars and putting nails under
    their tires. There was no evidence that Jonathan had engaged in actual acts or threats
    of violence against their persons. Accordingly, we reverse the final judgment of
    injunction for protection against domestic violence.
    Reversed.
    LUCAS and SALARIO, JJ., Concur.
    -4-
    

Document Info

Docket Number: 17-4703

Filed Date: 12/14/2018

Precedential Status: Precedential

Modified Date: 12/14/2018