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Phillips v. Phillips

District Court of Appeal of Florida, Second District.
Nov 7, 2014
151 So. 3d 58 (Fla. Dist. Ct. App. 2014)

Summary

finding evidence legally insufficient to support a domestic violence injunction where, despite the allegations in her petition, the wife acknowledged in her testimony that there had been no violence or threats of violence from the husband since their separation four months before filing the injunction

Summary of this case from Chiscul v. Hernandez

Opinion

No. 2D13–1233.

2014-11-7

Matthew Lane PHILLIPS, Appellant, v. Nofar PHILLIPS, Appellee.

Annette Marie Lang and Robert E. Biasotti of Biasotti and Associates, St. Petersburg, for Appellant.No appearance for Appellee.


Reversed and remanded.

Annette Marie Lang and Robert E. Biasotti of Biasotti and Associates, St. Petersburg, for Appellant. No appearance for Appellee.
KELLY, Judge.

Matthew Lane Phillips appeals an injunction for protection against domestic violence entered in favor of his estranged wife, Nofar Phillips. He argues that the trial court abused its discretion by entering the injunction because Mrs. Phillips failed to establish that she had reasonable cause to believe she was in imminent danger of becoming the victim of domestic violence. We agree and reverse.

In order for the trial court to issue an injunction for protection against domestic violence, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in “imminent danger of becoming the victim of any act of domestic violence.” § 741.30(1)(a), Fla. Stat. (2012); see Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007); Moore v. Hall, 786 So.2d 1264, 1266 (Fla. 2d DCA 2001). In determining whether the victim's fear 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.” 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)).

Here, the evidence was legally insufficient to meet the statutory requirements for issuance of a domestic violence injunction. Despite the allegations in her petition, Mrs. Phillips acknowledged in her testimony at the injunction hearing that there had been no violence or threats of violence from Mr. Phillips since the parties' separation four months before she filed the domestic violence petition. Because Mrs. Phillips failed to establish that she was the victim of domestic violence or that she had a reasonable fear of becoming the victim of domestic violence, we reverse. See Oettmeier, 960 So.2d at 905; Moore, 786 So.2d at 1267.

Although the injunction has expired, we reverse and remand with instructions to vacate the injunction because of the unintended collateral consequences that may result from such a judgment. See Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005); Stone v. Stone, 128 So.3d 239, 242 (Fla. 4th DCA 2013).

Reversed and remanded.

VILLANTI and LaROSE, JJ., concur.


Summaries of

Phillips v. Phillips

District Court of Appeal of Florida, Second District.
Nov 7, 2014
151 So. 3d 58 (Fla. Dist. Ct. App. 2014)

finding evidence legally insufficient to support a domestic violence injunction where, despite the allegations in her petition, the wife acknowledged in her testimony that there had been no violence or threats of violence from the husband since their separation four months before filing the injunction

Summary of this case from Chiscul v. Hernandez

reversing issuance of domestic violence injunction where petitioner "acknowledged in her testimony at the injunction hearing that there had been no violence or threats of violence from Mr. Phillips since the parties' separation four months before she filed the domestic violence petition"

Summary of this case from Yaklin v. Yaklin

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

Summary of this case from Tate v. Tate
Case details for

Phillips v. Phillips

Case Details

Full title:Matthew Lane PHILLIPS, Appellant, v. Nofar PHILLIPS, Appellee.

Court:District Court of Appeal of Florida, Second District.

Date published: Nov 7, 2014

Citations

151 So. 3d 58 (Fla. Dist. Ct. App. 2014)

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