Third District Court of Appeal
State of Florida
Opinion filed December 1, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1419
Lower Tribunal No. 20-5218
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Aaron McGuire,
Appellant,
vs.
Magiori C. Boscan,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Elisabeth
M. Espinosa, Judge.
Sale & Weintraub, P.A., and Jayne C. Weintraub; Nelson Mullins
Broad and Cassel, and Kimberly J. Freedman and Christopher C. Cavallo,
for appellant.
Fields Howell, LLP, and Daniel R. Ferrante, for appellee.
Before LOGUE, HENDON, and LOBREE, JJ.
HENDON, J.
Aaron McGuire (“Mr. McGuire”) appeals from (1) a final judgment of
injunction for protection against domestic violence without minor children
entered against him on behalf of his former live-in girlfriend, Magiori C.
Boscan (“Ms. Boscan”), pursuant to section 741.30, Florida Statutes
(2019), and (2) an order denying his motion for rehearing. For the reasons
that follow, we reverse the final judgment of injunction for protection against
domestic violence and remand with instructions to vacate the injunction
entered against Mr. McGuire.
On March 13, 2020, Ms. Boscan filed a petition for temporary
injunction for protection against domestic violence without minor children
against her former live-in boyfriend, Mr. McGuire (“Petition”). In the
Petition, Ms. Boscan alleged incidents of domestic violence that allegedly
occurred in May 2017, September 2017 1, February 2020, and March 2020.
The trial court entered a temporary injunction, setting the case for a final
hearing.
On April 29, 2020, the trial court conducted a final hearing, with both
parties acting pro se. Ms. Boscan testified that the parties began to date in
October 2016 after they met in the Brickell area, and they lived together
1
The Petition actually states that this alleged incident occurred in
September 2018, but during the final hearing, Ms. Boscan clarified that the
incident occurred in September 2017, not 2018.
2
from January 2017 until the alleged incident in May 2017. However, they
continued to have a relationship until November 2017.
Both parties testified as to the alleged May 2017 and September
2017 incidents, with the parties presenting conflicting versions of what
occurred. Although Ms. Boscan’s Petition did not contain any specific
allegations from the date of the alleged September 2017 incident to the
alleged February 2020 incident, the trial court questioned the parties as to
matters that occurred between those dates. Ms. Boscan, without any
objection by Mr. McGuire, introduced into evidence two communications
from Mr. McGuire—an April 2018 email from Mr. McGuire to Ms. Boscan,
and an October 2019 WhatsApp message from Mr. McGuire to Ms.
Boscan’s sister. Both the email and the WhatsApp message were friendly
and did not contain any threats whatsoever. Mr. McGuire testified that the
WhatsApp message to Ms. Boscan’s sister was accidentally sent to her as
it was intended for someone else. Further, although Ms. Boscan and her
sister did not respond to the communications, Mr. McGuire did not send
further communications.
The parties also testified as to the alleged February and March 2020
incidents. As to the alleged February 2020 incident, Ms. Boscan testified
that she exited her car near Biscayne Bay to meet her cousin. At that time,
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Mr. McGuire was jogging and passed by her, making eye contact. Ms.
Boscan went back into her car and locked the doors because she did not
want to see him. Ms. Boscan testified that she believes that it was a
coincidence that they were both there at the same time because “his face
was a look of surprise.” Mr. McGuire kept on jogging and did not speak to
Ms. Boscan.
As to the alleged March 2020 incident at a Whole Foods store in
downtown Miami, Ms. Boscan testified that she walked from a store in
downtown Miami to the Whole Foods store in downtown Miami. She
entered the Whole Foods and got the product she needed. When she
turned, Mr. McGuire was about fifteen steps away. Ms. Boscan distanced
herself from him and waited for him to leave. In response to the trial court’s
question as to whether she thought the encounter was coincidental, Ms.
Boscan testified that Mr. McGuire “must have seen” her walking in the
street, and he “probably” saw her go into Whole Foods and followed her. In
contrast, Mr. McGuire’s testimony reflects that he was shopping in Whole
Foods when he saw her; this particular Whole Foods is within walking
distance from his home and work; and when he saw her, he went in
another direction without attempting to speak to her.
Finally, without objection from Mr. McGuire, the trial court asked Ms.
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Boscan if she had seen Mr. McGuire after she filed the Petition on March
13, 2020. Ms. Boscan testified that on that same day, she was at a
restaurant having dinner with a friend, and Mr. McGuire arrived with a
group of friends. Mr. McGuire did not attempt to speak to Ms. Boscan.
At the conclusion of the hearing, the trial court ruled that it was
entering a permanent injunction for protection against domestic violence
against Mr. McGuire. The final judgment reflects that the trial court found
that Ms. Boscan is a victim of domestic violence and/or has reasonable
cause to believe she is in imminent danger of becoming a victim of
domestic violence by Mr. McGuire.
Through counsel, Mr. McGuire filed a motion for rehearing, and Ms.
Boscan, who was also now represented by counsel, filed an objection to
the motion for rehearing. Following a hearing, the trial court reserved ruling
and requested the parties’ counsels to submit proposed orders. Thereafter,
in September 2020, the trial court entered an order denying Mr. McGuire’s
motion for rehearing. This appeal followed.
Mr. McGuire contends that the trial court abused its discretion by
entering the permanent injunction for protection against domestic violence
because the ruling is not supported by competent, substantial evidence.
For the reasons that follow, we agree.
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“An order granting an injunction in the domestic violence context is
reviewed for abuse of discretion. A trial court abuses its discretion by
entering a domestic violence injunction when the ruling is not supported by
competent, substantial evidence.” Chiscul v. Hernandez,
311 So. 3d 55,
57-58 (Fla. 4th DCA 2021) (internal quotation marks and citations omitted);
see also Alobaid v. Khan,
306 So. 3d 159, 163 (Fla. 3d DCA 2020) (“We
review the court’s issuance of the final injunction for abuse of discretion
and to determine whether it is supported by competent, substantial
evidence.”).
In the instant case, the trial court entered the injunction pursuant to
section 741.30(6)(a), Florida Statutes (2019), which allows a trial court to
enter an injunction for protection against domestic violence if “the petitioner
is either the victim of domestic violence as defined by s. 741.28 or has
reasonable cause to believe he or she is in imminent danger of becoming a
victim 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.” “In determining whether a petitioner has reasonable cause to
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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.’” Chiscul, 311 So. 3d at 58 (quoting Zarudny v.
Zarudny,
241 So. 3d 258, 262 (Fla. 3d DCA 2018) (citations omitted)); see
also § 741.30(6)(b), Fla. Stat. (2019). Further, the “requisite fear of
imminent danger . . . must be an objectively reasonable fear.” Quinones-
Dones v. Mascola,
290 So. 3d 1029, 1030 (Fla. 5th DCA 2020) (quoting
Robinson v. Robinson,
257 So. 3d 1187, 1188 (Fla. 5th DCA 2018)); see
also Lopez v. Regalado,
257 So. 3d 550, 557 (Fla. 3d DCA 2018) (affirming
entry of domestic violence injunction where petitioner established that she
had an “objectively reasonable cause to believe that she was in imminent
danger” of becoming the victim of domestic violence); Zarudny, 241 So. 3d
at 262 (noting that the belief of imminent danger must be “objectively
reasonable”). Further, the petitioner has the burden of proving entitlement
to an injunction for protection against domestic violence. See Achurra v.
Achurra,
80 So. 3d 1080, 1082 (Fla. 1st DCA 2012).
As stated above, in entering the domestic violence injunction, the trial
court found that Ms. Boscan is a victim of domestic violence and/or has
reasonable cause to believe that she is in imminent danger of becoming a
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victim of domestic violence by Mr. McGuire. Ms. Boscan testified as to four
alleged incidents of domestic violence. Two of the alleged incidents
occurred in 2017 and the other two alleged incidents occurred more than
two years later in February and March 2020.
As to the alleged 2017 incidents, the parties presented conflicting
testimony as to what occurred. Nonetheless, when viewing the evidence in
the light most favorable to Ms. Boscan, as matter of law, she was the victim
of domestic violence in May 2017 and September 2017. However, based
on the remoteness of the alleged 2017 incidents, those two incidents,
standing alone, cannot support the entry of the domestic violence
injunction. In Curl v. Roberts,
279 So. 3d 765 (Fla. 1st DCA 2019), the
First District Court of Appeal held that “[t]he remoteness of Appellant’s
alleged prior abuse of Appellee also renders the injunction improper.
Incidents remote in time by as little as a year are insufficient to support
entry of a new injunction, absent allegations of current violence or imminent
danger that satisfy the statute.” Curl, 279 So. 3d at 767 (emphasis added);
see also Magloire v. Obrenovic,
308 So. 3d 258, 261 (Fla. 2d DCA 2020)
(“[The petitioner’s] testimony established that she was the victim of violence
in early 2018, including while she was pregnant. However, those incidents
predated the filing of the petition by well over a year and were thus too
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remote in time to support the entry of the injunction in the absence of more
recent evidence of domestic violence or evidence of that [the petitioner] has
reasonable cause to believe that she and her child are in imminent
danger.”); Gill v. Gill,
50 So. 3d 772, 774 (Fla. 2d DCA 2010) (“[A]n 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.”); Giallanza v. Giallanza,
787 So.
2d 162 (Fla. 2d DCA 2001). Thus, in the light most favorable to Ms.
Boscan, we must determine whether the evidence presented at the final
hearing relating to the alleged February 2020 and March 2020 incidents
reflect that she was a victim of domestic violence or that these incidents
reasonably caused her to believe that she was in imminent danger of
becoming a victim of domestic violence.
When viewing the alleged February and March 2020 incidents in the
light most favorable to Ms. Boscan, as a matter of law, she was not a victim
of domestic violence and could not have reasonably believed that she was
in imminent danger of becoming a victim of domestic violence. As to the
alleged February 2020 incident where Mr. McGuire was jogging near
Biscayne Bay in downtown Miami, Ms. Boscan testified that she believed it
was a coincidence that they were both there at the same time and that “his
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face was a look of surprise.” Mr. McGuire did not attempt to speak to her
and kept on jogging. Next, as to the March 2020 incident at Whole Foods
in downtown Miami, Ms. Boscan testified that she did not believe that the
encounter was accidental. However, Ms. Boscan’s testimony was based
on pure speculation where she testified that Mr. McGuire “must have seen”
her walking in the street, and he “probably” saw her go into Whole Foods
and followed her. There was no evidence that Mr. McGuire followed Ms.
Boscan into Whole Foods. Further, this particular Whole Foods is Mr.
McGuire’s local Whole Foods as he works and lives in downtown Miami.
Further, Mr. McGuire did not attempt to talk to Ms. Boscan or follow her
within the market. As such, when viewing the evidence in the light most
favorable to Ms. Boscan, the evidence reflects that Mr. McGuire and Ms.
Boscan coincidentally were at the same public places in February and
March 2020. Further, following their chance encounters, Mr. McGuire did
nothing that would reasonably cause Ms. Boscan to believe that she was in
imminent danger of becoming a victim of domestic violence. Thus, we
conclude that the trial court abused its discretion by entering the final
judgment of injunction for protection against domestic violence because
entry of the domestic violence injunction is not supported by competent,
substantial evidence. Accordingly, we reverse the final judgment and
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remand with instructions to vacate the domestic violence injunction entered
against Mr. McGuire. 2
Reversed and remanded with instructions.
2
Mr. McGuire also argues that the trial court violated his due process rights
at the final hearing by, among other things, allowing Ms. Boscan to testify
as to matters not alleged in her Petition, including the email Mr. McGuire
sent to Ms. Boscan, the WhatsApp message to Ms. Boscan’s sister, and
Mr. McGuire arriving at the same dining establishment on the day Ms.
Boscan filed her Petition. Based on our reversal of the final judgment of
injunction for protection against domestic violence on the merits, we do not
need to address Mr. McGuire’s due process arguments. Nonetheless, we
note that even when considering this additional testimony, our conclusion
remains the same.
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