Hussey v. Lara

272 So. 3d 498

• Court: District Court of Appeal of Florida
• Decided: April 10, 2019
• Docket: 18-0259
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 10, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-259 Lower Tribunal No. 17-21552 ________________

Donovan Paul Hussey, Appellant,

vs.

Tatiana L. Lara, o/b/o J.H., Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Michaelle Gonzalez-Paulson, Judge.

Greg Rosenfeld (West Palm Beach), for appellant.

No Appearance for appellee.

Before SALTER, SCALES and MILLER, JJ.

SALTER, J.

Donovan Paul Hussey appeals a final judgment of injunction for protection

against sexual violence under section 784.046, Florida Statutes (2017). Mr. Hussey is the brother-in-law of the appellee, Tatiana L. Lara. Mr. Hussey is the paternal

uncle, and Ms. Lara is the mother, of the alleged victim, J.H., age nine at the time of

an alleged incident. Ms. Lara, who is not an attorney, represented herself in the

proceedings below and has not filed a brief or other response to Mr. Hussey’s brief

in the appeal.

Ms. Lara did not witness the alleged acts, which were claimed to have

occurred in Palm Beach County while the child was staying with her father’s sister

(Mr. Hussey’s wife) and Mr. Hussey in the aftermath of Hurricane Irma. Ms. Lara

and J.H. lived in Miami-Dade County.

At the hearing on Ms. Lara’s petition, Ms. Lara was the only witness. The

child did not testify and there was no attempt to introduce any out-of-court statement

from her under section 90.803(23), Florida Statutes (2017), as an alleged child

victim. The trial court sustained hearsay objections to any testimony by Ms. Lara

about what J.H. allegedly told her. Mr. Hussey’s attorney advised the Court that

Ms. Lara had made a criminal report regarding the alleged incident to the police and

State Attorney’s Office in Palm Beach County, and he invoked his client’s Fifth

Amendment right not to testify.

At the conclusion of the hearing, the trial court entered a permanent

restraining order, indefinite in duration, finding Ms. Lara credible in her effort to

protect her child. This appeal followed.

2 Analysis

We are constrained to reverse the final order because there was insufficient

admissible evidence to support it. To support granting an injunction under section

784.046, Florida Statutes, a petitioner must prove the statutory elements by

competent, substantial evidence. Schutt v. Alfred, 130 So. 3d 772, 774 (Fla. 3d DCA

2014). The “evidentiary requirements present in section 784.046(4)(a)1. [state] that

the petitioner must be an eyewitness, provide direct physical evidence, or provide

an eyewitness affidavit to the sexual battery, to obtain an injunction for protection.”

Caldwell v. Caldwell, 257 So. 3d 1184, 1186 (Fla. 5th DCA 2018). In this case, Ms.

Lara did not present any such evidence.

In reaching this result, and taking care to express no opinion regarding the

allegations or merits of Ms. Lara’s claims on behalf of her daughter, we comment

briefly on the issue of access to counsel in cases like this one, heard daily in domestic

violence divisions of the circuit court, and in the appeals from the rulings in those

cases. The issues could hardly be more significant—the allegations, proceedings,

and results substantially affect the long-term physical and emotional health of the

parties and their families.

There are willing legal service groups and pro bono attorney volunteers

willing to assist parties on either side of the trial court petitions or in any resulting

appeals. Yet we continue to see unrepresented parties in such cases, and our Court

3 is not alone in that respect. See Mitchell v. Brogden, 249 So. 3d 781, 783 n. 2 (Fla.

1st DCA 2018) (Makar, J., dissenting) (noting the pitfalls encountered by self-

represented, non-attorney litigants in protective injunction cases). We urge non-

profit legal services providers, the Florida Commission on Access to Civil Justice,

The Florida Bar, and our colleagues in the judiciary to do what they can to assure

that pro se parties in these cases have been made aware of the opportunities for legal

assistance even if they are unable to afford private counsel.

Reversed; final judgment of injunction vacated.