Posted by Nydia Streets of Streets Law in Florida Domestic Violence
If a Florida domestic violence petition is based on false allegations, can the accused who is defending the petition seek attorney’s fees? The answer depends on whether or not there is clear and convincing evidence that a party knowingly made false allegations in a petition. This was an issue in the case Cadavid, et, al. v. Saporta, 4D21-1717 (Fla. 4th DCA August 3, 2022).
A couple had a relationship for many years. The former girlfriend filed a petition for injunction against domestic violence against the former boyfriend, alleging that he threatened to kill her and her son, that he did not allow relatives of the former boyfriend in their home, and that the former boyfriend drove by the former girlfriend’s new home where she was living with her son. A temporary injunction was entered, and the former girlfriend’s lawyer filed a motion to enforce the injunction alleging the former boyfriend violated it by driving by the girlfriend’s house and inquiring with third parties about her. The former boyfriend responded by serving a motion for sanctions under Fla. Stat. 57.105, and the former girlfriend withdrew her motion within the 21-day safe harbor period. The motion for sanctions was filed anyway, and after a hearing on the petition at which the court found the former boyfriend to be more credible than the former girlfriend, the court entered an order awarding attorney’s fees to the former boyfriend from the former girlfriend and her lawyer. The former girlfriend and her lawyer appealed.
The appellate court noted “[T]he legislature, through the plain language of the statute, has expressly limited the circumstances in which attorney’s fees can be awarded in cases involving an injunction for protection against domestic violence, requiring a higher standard and level of proof. See § 57.105(8), Fla. Stat. (2020); [. . .] Rather than just satisfying a preponderance of the evidence standard, [. . .] the more stringent clear and convincing evidence standard must be met. This court has defined ‘clear and convincing evidence’ as follows: ‘[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’”
The court held “In the instant case, the award of attorney’s fees was not permitted under the plain language of the statute because the record did not contain ‘clear and convincing evidence’ that the former girlfriend knowingly made a false statement or allegation in her petition with regard to a material matter. Significantly, the trial court did not identify any specific statement or allegation in the petition that it found by clear and convincing evidence to be false. Instead, the trial court determined only that the former girlfriend was not paralyzed by fear. While this finding may support the denial of an injunction for protection under a preponderance of the evidence standard, it is insufficient to meet the heavy burden of supporting an award of attorney’s fees under a clear and convincing evidence standard. Thus, the former girlfriend’s mere failure to prove her case by a preponderance of the evidence does not satisfy the level of proof necessary to support an award of fees under section 57.105(8).”
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