EDWARD LEE FINGERS vs ANGELICIA FINGERS

• Court: District Court of Appeal of Florida
• Decided: January 20, 2023
• Docket: 22-0570
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

EDWARD LEE FINGERS,

Appellant,

v. Case No. 5D22-570 LT Case No. 2022-30006-FMCI

ANGELICIA FINGERS,

Appellee.

________________________________/

Opinion filed January 20, 2023

Appeal from the Circuit Court for Volusia County, Sandra C. Upchurch, Judge.

John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant.

No Appearance for Appellee.

WALLIS, J.

Edward Lee Fingers (Former Husband) appeals the Final Judgment of

Injunction for Protection Against Domestic Violence without Minor Children (the Injunction) entered in favor of his ex-wife, Angelicia Fingers (Former

Wife). Because competent, substantial evidence does not support the

issuance of the Injunction, we reverse. 1

The parties were married in September 1993 and they divorced in

October 2021 in Missouri. On January 3, 2022, Former Wife filed a Petition

for Injunction for Protection Against Domestic Violence (the Petition),

alleging that Former Husband committed or threatened to commit domestic

violence against her. Former Wife specifically alleged that Former Husband

threatened her several times and that she feared for her life. Former Wife

further alleged that she moved from Missouri to Florida in April 2021 because

she was afraid of Former Husband.

At the hearing, Former Wife testified that in October 2020 the parties’

daughter overheard Former Husband telling someone that he had purchased

a gun silencer. Based on that conversation, the daughter told Former Wife

that she feared that Former Husband was going to kill Former Wife.

Additionally, Former Wife testified that in March 2021 Former Husband told

1 We also note that the trial court violated Former Husband's due process rights when it did not give him an opportunity to cross-examine Former Wife at the injunction hearing. See Toler v. Pray, 293 So. 3d 594, 595–96 (Fla. 2d DCA 2020) (holding that the trial court violated appellant's due process rights at the injunction hearing when it did not give the pro se appellant an opportunity to cross-examine appellee).

2 Former Wife that he did not “need a silencer to kill [her], [she] would never

see [him] coming.” However, Former Wife also testified that she has never

seen Former Husband in Florida and Former Husband has never attempted

to directly contact her while she has been living in Florida.

The trial court ultimately entered the Injunction, finding that Former

Wife established that she has reasonable cause to believe that she is in

imminent danger of becoming a victim of domestic violence by Former

Husband. Former Husband challenges that finding on appeal.

“A domestic violence injunction must be supported by competent

substantial evidence and is reviewed for legal sufficiency as opposed to

evidentiary weight.” Quinones-Dones v. Mascola, 290 So. 3d 1029, 1030

(Fla. 5th DCA 2020). Whether the evidence is legally sufficient to support

entry of an injunction is a question of law that is reviewed de novo. Robinson

v. Robinson, 257 So. 3d 1187, 1189 (Fla. 5th DCA 2018).

“In order to obtain an injunction for protection against domestic

violence, the petitioner must be the victim of domestic violence or have

reasonable cause to believe he or she is in imminent danger of becoming a

victim of domestic violence.” Quinones-Dones, 290 So. 3d at 1030. The

petitioner’s fear of imminent danger must be objectively reasonable. Id. To

determine if the fear is reasonable, “the trial court must consider the current

3 allegations, the parties’ behavior within the relationship, and the history of

the relationship as a whole.” Id. (quoting Jones v. Jones, 32 So. 3d 772, 774

(Fla. 2d DCA 2010)). To support a finding of imminent danger, there must

be evidence that the petitioner has reasonable cause to believe that the

danger is imminent. See Magloire v. Obrenovic, 308 So. 3d 258, 261 (Fla.

2d DCA 2020).

Although there is no bright-line rule as to what is considered “too

remote in time to support the entry of a domestic violence injunction,” courts

seem to agree that incidents that occurred one year prior to filing the petition

are insufficient to support the issuance of an injunction if there are no other

allegations of current violence or imminent danger. See Dickson v. Curtis,

338 So. 3d 1001, 1005 (Fla. 3d DCA 2022) (recognizing that there is no

“bright line rule” regarding remoteness in the context of domestic violence

injunctions); Curl v. Roberts o/b/o E.C., 279 So. 3d 765, 767 (Fla. 1st DCA

2019) (“The 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.”).

Without necessarily establishing or creating a bright-line rule, we

conclude that, under the facts of this case, any alleged threats that occurred

4 before January 2021 were too remote in time to support the injunction

resulting from Former Wife's petition filed in early January 2022.

Consequently, the March 2021 incident is the only event that could support

the issuance of the Injunction.

However, we do not find that the evidence surrounding the March 2021

event alone satisfies Former Wife’s burden. Specifically, the uncontested

evidence is that Former Husband never physically harmed Former Wife

either during or after their marriage. Additionally, the evidence establishes

that Former Wife never actually saw Former Husband in Florida after April

2021. Furthermore, the record does not contain any evidence of Former

Husband making current threats or presenting any physical danger to

Former Wife after she moved to Florida. Therefore, there is no competent,

substantial evidence supporting the trial court’s finding that Former Wife had

an objectively reasonable fear that she was in imminent danger of becoming

a victim of domestic violence. See Quinones-Dones, 290 So. 3d at 1030–31

(reversing permanent injunction against domestic violence where petitioner's

fear was not objectively reasonable because incidents of domestic violence

had occurred years before petition was filed, petitioner admitted that

respondent had not acted violently towards her since their relationship ended

years ago, and petitioner did not allege that respondent had recently

5 threatened her); Zapiola v. Kordecki, 210 So. 3d 249, 250 (Fla. 2d DCA

2017) (reversing injunction for protection against domestic violence where

the evidence established that there was one incident of domestic violence

years before the petition was filed and there was no evidence that the

respondent had recently engaged in conduct that was threatening or might

reasonably place the petitioner in fear). Accordingly, we reverse the

Injunction.

REVERSED.

LAMBERT, C.J. and EVANDER, J., concur.