JONATHAN TATE v. VANESSA TATE

262 So. 3d 221

• Court: District Court of Appeal of Florida
• Decided: December 14, 2018
• Docket: 17-4703
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JONATHAN TATE, ) ) Appellant, ) ) v. ) Case No. 2D17-4703 ) VANESSA TATE, ) ) Appellee. ) ___________________________________)

Opinion filed December 14, 2018.

Appeal from the Circuit Court for Pasco County; Alicia Polk, Judge.

Keeley R. Karatinos of Mander Law Group, Dade City, for Appellant.

Vanessa Tate, pro se.

SILBERMAN, Judge.

Jonathan Tate seeks review of a final judgment of injunction for protection

against domestic violence. Vanessa Tate, Jonathan's sister, obtained an injunction

based on evidence that he broke into her unoccupied home and stole her cats. We

reverse because the court's finding that Vanessa had an objectively reasonable fear of

becoming the victim of domestic violence is not supported by competent substantial

evidence. Under section 741.30(1)(a), Florida Statutes (2016), an injunction for

protection against domestic violence may be available to someone "who is either the

victim of domestic violence . . . or has reasonable cause to believe he or she is in

imminent danger of becoming the victim of any act of domestic violence." Domestic

violence is defined 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." § 741.28(2).

"Where 'fear alone is the "reasonable cause" alleged to support the

injunction, then not only must the danger feared be imminent but the rationale for the

fear must be objectively reasonable as well.' " Zapiola v. Kordecki, 210 So. 3d 249, 250

(Fla. 2d DCA 2017) (quoting Oettmeier v. Oettmeier, 960 So. 2d 902, 904 (Fla. 2d DCA

2007)). This court reviews the issuance of an injunction on this basis for competent

substantial evidence. Id.

In this case, the trial court found that Vanessa had an objectively

reasonable fear of becoming the victim of domestic violence based on evidence that

Jonathan broke into her unoccupied home and stole her cats. The court reasoned as

follows:

[H]e knew he wasn't supposed to be [in Vanessa's house]. He was creeping around; he used a flashlight; he didn't turn on the lights. He wiped the doorknob before he closed it. He used his shirt to open the door. He clearly knew he wasn't supposed to be there. He went into someone's home without her permission, that's what she's testified to.

....

-2- He went inside her home without her permission; invaded her privacy and her space without her permission. I think that would install [sic] fear in anyone. I think that's—a reasonable person would be in fear of that person that broke into their home.

This evidence was insufficient to establish that Vanessa had an objectively

reasonable fear of becoming the victim of domestic violence. Vanessa did not testify to

any acts of violence toward her or threats of violence by Jonathan. Indeed, Vanessa

did not even establish any danger to her cats.1 Instead, she presented evidence that

she and Jonathan rescued the cats together after he had moved his possessions into

her home. After Jonathan moved out, he stealthily entered the home and stole the cats

so he could keep them as pets in his own home. However, he did not use any force in

his entry or commit any acts of violence while in the home. He simply took the cats and

refused to give them back.

Under these circumstances, the court erred in entering the injunction for

protection against domestic violence. See Phillips v. Phillips, 151 So. 3d 58, 59 (Fla. 2d

DCA 2014) (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); Giallanza v. Giallanza, 787 So. 2d 162, 164 (Fla. 2d DCA

2001) (reversing the extension of an injunction because it was not based on any acts or

threats of violence towards the wife but was based on evidence "that she is upset by the

Husband's dealings with their children and that she believes that the Husband is using

the children to harass her").

1Under the statute, such evidence would be insufficient in itself to establish a basis for a domestic violence injunction.

-3- We are not persuaded that the result should be changed based on

Vanessa's testimony that Jonathan has had violent outbursts in the past that make her

fear for her well-being and safety. These "violent outbursts" were not directed at

Vanessa and included actions like egging old roommates' cars and putting nails under

their tires. There was no evidence that Jonathan had engaged in actual acts or threats

of violence against their persons. Accordingly, we reverse the final judgment of

injunction for protection against domestic violence.

Reversed.

LUCAS and SALARIO, JJ., Concur.

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