Posted by Nydia Streets of Streets Law in Florida Domestic Violence

The nuances of the standard for obtaining a Florida domestic violence injunction are important to understand. Even in cases in which there is an allegation of disturbing physical violence, an injunction may not be entered if other factors are not present. In the case Cook v. McMillan, 4D19-3825 (Fla. 4th DCA July 8, 2020), an appeal of a dating violence injunction was taken.

The alleged victim relayed to the court an incident in which she went to the accused’s home to discuss the status of their relationship. The alleged victim recounted having a glass of wine and questioning the accused about why he was receiving so many text messages. The accused declined to answer so the alleged victim stated she grabbed her belongings and began to leave the home. She then stated the accused followed her out of the home and grabbed her arm to prevent her from leaving. A struggle was alleged to ensue during which the alleged victim claimed she was pushed onto her back, after which the accused straddled her and began to choke her.

The alleged victim further stated she received emails from the accused after this incident, but she did not include in her petition the content of these emails. The accused defended by denying the allegations. Evidence indicated the emails he sent to her recounted his version of the night in question. He stated the alleged victim was belligerently drunk, that she embarrassed him in front of his neighbors and that he wanted nothing to do with her any longer. The accused also filed a motion to dismiss because the petition did not include the content of the emails. The motion to dismiss was denied and an injunction was entered against the accused spanning two years. The accused appealed.

On appeal, the court considered two issues - whether the trial court record supported the conclusion that the alleged victim was in imminent danger of becoming a victim of a future act of dating violence and whether it was proper to deny the accused’s motion to dismiss. On both issues, the appellate court ruled in favor of the accused. The court held: “In fact, [the alleged victim] testified that the communications did not include threats of violence. And in her brief on appeal, she concedes that, ‘standing alone,’ the communications might not be enough to support the injunction. But, she argues, when coupled with the incident at [the accused’s] house, they do. [The alleged victim] cannot use the incident at [the accused’s] house as the basis for establishing she has a fear of imminent future violence.” The court further held that the trial court erred in denying the motion to dismiss when it stated it was going to give the alleged victim an opportunity to produce the content of the emails at the hearing. The court held “This ruling explicitly indicates the court went beyond the four corners of the petition to satisfy the statute. [internal citations omitted] That was error because the petition neither included the communications nor alleged that the communications caused McMillan to be in fear of imminent danger.”

If you need assistance with a civil domestic violence case, contact a Miami domestic violence lawyer. A consultation can help you understand how the law may apply to your case.