REBECCA TAYLOR v. ALBERT PRICE , 273 So. 3d 24 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
REBECCA TAYLOR,
Appellant,
v.
ALBERT PRICE,
Appellee.
No. 4D18-2835
[May 22, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Fabienne E. Fahnestock, Judge; L.T. Case No. DVCE 18-
5667 (58).
Rebecca Taylor, Margate, pro se.
No brief filed for appellee.
ROWE, CYMONIE S., Associate Judge.
In this domestic violence case, the wife appeals the dismissal of her
petition for protection against domestic violence that she filed against her
husband. The issue is whether the trial court erred when dismissing the
petition while accepting the unrebutted evidence from the wife. We find
that the trial court erred because there was no evidence to rebut the wife’s
uncontroverted testimony and no finding that the wife was not credible.
Facts
At the hearing concerning the injunction, only the wife testified. Inter
alia, the wife testified that her husband tried to physically force himself on
her and that the husband scratched her breast during the incident. The
wife testified that the scratch resulted in a significant wound that took
days to heal. The wife told the court that she had a photograph of the
wound, but she would prefer not to have to expose it and hoped the court
would accept her testimony. When the court indicated that the wife had
failed to meet her burden for an injunction, the wife asked the court if it
would like to see the photograph of the wound. The court declined to see
the photograph of the wound stating that the court was taking the wife at
her word. The wife’s testimony was uncontroverted.
When denying the wife’s petition, the court did not make any findings
of fact and instead concluded that there was insufficient evidence
presented to support an injunction pursuant to section 741.30, Florida
Statutes (2018).
Analysis
Section 741.30(1)(a) 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.” Id. Section 741.28(2), Florida
Statutes (2018), 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.” Id.
In Rudel v. Rudel, 111 So. 3d 285, 291 (Fla. 4th DCA 2013), we stated
that:
[W]here the testimony on the pivotal issues of fact is not
contradicted or impeached in any respect, and no conflicting
evidence is introduced, these statements of fact cannot be
wholly disregarded or arbitrarily rejected. Rather, the
testimony should be accepted as proof of the issue for which
it is tendered, even though given by an interested party . . . .
(quoting Ducanson v. Serv. First, Inc., 157 So. 2d 696, 699 (Fla. 3d DCA
1963)).
Because the only evidence presented was that of the wife, which was
uncontroverted, and because the court did not make findings of fact
concerning the credibility of the wife, the court was required to accept the
wife’s testimony and grant the petition for injunction. The trial court’s
order dismissing the petition is reversed and remanded with instructions
to enter an injunction for protection against domestic violence.
TAYLOR and LEVINE, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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