RABIH YACOMB YOUSSEF v. ISSRRA OSMAN ZAITOUNI

• Court: District Court of Appeal of Florida
• Decided: February 14, 2018
• Docket: 17-0926
• 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

RABIH YACOMB YOUSSEF, ) ) Appellant, ) ) v. ) Case No. 2D17-926 ) ISSRRA OSMAN ZAITOUNI, ) individually and on behalf of ) R.Y., A.Y., and S.Y., Minors, ) ) Appellees. ) )

Opinion filed February 14, 2018.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Jack Helinger, Judge.

Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellant.

William D. Slicker, St. Petersburg, for Appellees.

ROTHSTEIN-YOUAKIM, Judge.

Rabih Youssef appeals the trial court's denial of his motion to vacate a

temporary injunction against him for protection against domestic violence and to dismiss

the petition for the injunction on the ground that the court lacked personal jurisdiction over him.1 We agree with Youssef that the court lacked personal jurisdiction over him

when it granted the injunction, and we reverse.

Youssef, Issrra Osman Zaitouni, and their three minor children were

residents of Ohio, where they had lived for at least five years before the couple's

separation. On or about January 20, 2017, Zaitouni and the children moved to Florida.

On February 1, 2017, in the Sixth Judicial Circuit Court in Pinellas County, Zaitouni

petitioned for an injunction for protection against domestic violence. Youssef was

served with process in Ohio and specially appeared in Florida through counsel,

asserting that he had been an Ohio resident since "about 2003 or 2004," that he was

not a Florida resident, and, therefore, that the trial court lacked personal jurisdiction over

him. We agree.

Section 741.30(6), Florida Statutes (2016), provides:

(d) A temporary or final judgment on injunction for protection against domestic violence entered pursuant to this section shall, on its face, indicate that: .... 3. The court had jurisdiction over the parties and matter under the laws of Florida . . . .

Florida's long-arm jurisdiction statute, section 48.193, Florida Statutes

(2016), lists the limited circumstances in which a person who is not a resident of this

state may be subjected to the jurisdiction of this state's courts. These circumstances

include, among other things, when that person carries on business in the state, commits

a tortious act within the state, or has an interest in property with the state;

circumstances specifically in connection with alimony, child support, and paternity

1We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B), (a)(3)(C)(i).

-2- proceedings; and when that person engages in substantial and not isolated activity

within the state. See id.

In denying Youssef's motion to vacate the temporary injunction, the trial

court identified three grounds on which it apparently based its exercise of personal

jurisdiction: (1) that Youssef "has family living in Florida"; (2) that Youssef "has 'sent'

[Zaitouni] and the children to Florida on approximately six occasions in the past"; and

(3) that "[d]uring those times [Youssef] has traveled to Florida to visit his family." None

of these facts, however, either alone or in the aggregate, supports personal jurisdiction

over Youssef under section 48.193. The parties do not dispute that Youssef has no

contacts with Florida except that his children and a brother live here. Although he has

vacationed here six times over the course of several years, vacations, without more

(such as the commission of a tort while here), do not give rise to personal jurisdiction.

See Two Worlds United v. Zylstra, 46 So. 3d 1175, 1178 (Fla. 2d DCA 2010) (holding

that coming to Florida a few times a year to visit friends and family neither constitutes

"substantial and not isolated activity" under section 48.193 nor establishes sufficient

minimum contacts to meet due process requirements). And although telephonic,

electronic, or written communications into Florida from an outside state can establish a

basis for personal jurisdiction even absent physical presence if the alleged cause of

action arises from the communications, Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla.

2002), the evidence established only a single telephonic communication from Youssef

into Florida—a text message responding to Zaitouni's text message requesting a copy

of her W-2 statement, in which Youssef asked Zaitouni to call him.

-3- The trial court also invoked its "emergency jurisdiction over the minor

children" as grounds for denying Youssef's motion. Presumably, the court was referring

to temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and

Enforcement Act, §§ 61.501-.542, Fla. Stat. (2016), which permits a court to exercise

jurisdiction over a custody proceeding when "the child is present in this state and the

child has been abandoned or it is necessary in an emergency to protect the child

because the child, or a sibling or parent of the child, is subjected to or threatened with

mistreatment or abuse." § 61.517(1). This section is inapposite; this is not a custody

dispute, and the Act does not establish an independent basis for the trial court to

exercise personal jurisdiction over Youssef.

Finally, at the hearing, the trial court concluded, without elaboration, that

there is a "safety exception" to the long-arm statute "as it relates to domestic violence

injunctions." And, on appeal, Zaitouni invites us to find some basis other than section

48.193 for the court's exercise of personal jurisdiction over Youssef or by holding that

personal jurisdiction over him was unnecessary. We must decline the invitation.

Section 741.30(6)(d)(3) explicitly requires that the trial court have personal jurisdiction

over the parties to the injunction, and section 48.193 defines the parameters by which a

trial court may exercise personal jurisdiction over a party who is not a Florida resident.

Although we understand Zaitouni's concern—and the trial court's protective inclination—

we simply cannot subvert the statutory requirements or the due process interests that

they implicate.

Because the record provides no support for the trial court's exercise of

personal jurisdiction over Youssef under the applicable statutes, we reverse the order

-4- denying Youssef's motion and remand for vacatur of the temporary injunction and

dismissal of the petition.2

Reversed; remanded with directions.

KELLY and LUCAS, JJ., Concur.

2Nothing in this opinion, however, should be construed as a determination of the merits of Zaitouni's petition, and we note that if Zaitouni were to obtain an injunction in a state with jurisdiction over Youssef and the injunctive order otherwise comported with 18 U.S.C. § 2265(b) (Supp. 2016), the injunction would be accorded full faith and credit in Florida and fully enforceable. See id. § 2265(a); § 741.315.

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