Opinion
No. 1D21-456
03-16-2022
Michael T. LABRAKE, Appellant, v. Francis M. LABRAKE, Appellee.
Kim A. Skievaski, Kim Anthony Skievaski, P.A., Pensacola, for Appellant. Francis M. Labrake, pro se, Appellee.
Kim A. Skievaski, Kim Anthony Skievaski, P.A., Pensacola, for Appellant.
Francis M. Labrake, pro se, Appellee.
Per Curiam.
Michael T. Labrake appeals an order denying his motion to dissolve an injunction against domestic violence issued more than fifteen years ago. Because Mr. Labrake showed that the circumstances underlying the injunction no longer exist and that continuing the injunction would no longer serve a valid purpose, we reverse the denial of his motion and remand with directions to dissolve the injunction.
I. Facts
On December 23, 2003, the circuit court issued a Final Judgment of Injunction for Protection Against Domestic Violence against Mr. Labrake. The parties were married on July 4, 2003 but divorced the next year. In the Petition for Injunction, Appellee alleged several incidents where Mr. Labrake pushed her during arguments and bent her fingers back. On the first incident, Appellee claimed that Mr. Labrake removed the car keys from her purse after a verbal altercation. In the second incident, Mr. Labrake allegedly took Appellee's check book and removed her ATM card from her back jean pocket. Appellee stated that she grabbed onto Mr. Labrake's shirt but ultimately released him. Yet, Mr. Labrake shoved Appellee. Lastly, Appellee claimed that Mr. Labrake came to their home to discuss their marriage but then began to verbally abuse her. She then alleged that in the process of retrieving his wedding ring, Mr. Labrake pushed her three separate times and bent her fingers back.
On December 22, 2020, over fifteen years after the injunction was issued, Mr. Labrake requested to have the injunction dismissed, arguing that there had been a substantial change in circumstances and that the parties have had no contact with each other since entry of the final injunction.
Appellee objected to dismissal of the injunction, and a hearing was conducted on Mr. Labrake's motion. At the hearing, Appellee testified that Mr. Labrake violated the injunction on three separate occasions in approximately 2004 or 2005. However, Appellee acknowledged that she had not received any correspondence from Mr. Labrake since entry of the injunction. She stated that she had just returned to the Gulf Coast after having lived in Texas since 2005, where she had moved when she remarried. Appellee divorced after fifteen years of marriage and was moving back to the area. She claimed that as a result of the Mr. Labrake's alleged assault, she had three surgeries and continues to suffer from PTSD. She acknowledged Mr. Labrake was acquitted of the charges related to the incident. However, she testified that she remains fearful of him.
Mr. Labrake testified that he has not had any contact with Appellee since the injunction was entered. He did not recall the incidents where Appellee claimed he had violated the injunction. Mr. Labrake stated that he did not wish to have any contact with Appellee. He claimed that when he originally sought to have the injunction dismissed, he did not know where Appellee was located so she could be served. He then retained counsel.
The trial court denied Mr. Labrake's request to dissolve the injunction, noting that the parties had contact after the injunction was issued. This timely appeal follows.
II. Analysis
A trial court's order denying a motion to dismiss a domestic violence injunction is reviewed under the abuse of discretion standard. See Hobbs v. Hobbs , 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020) ("Trial courts have ‘broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, appellate courts will not disturb the trial court's decision.’ " (quoting Noe v. Noe , 217 So. 3d 196, 199 (Fla. 1st DCA 2017) )). "But whether the evidence is legally sufficient to justify dissolving an injunction is a question of law reviewed de novo." Id. (citing Pickett v. Copeland , 236 So. 3d 1142, 1144 (Fla. 1st DCA 2018) ).
After an injunction has been entered, "either party to the injunction may move to modify or dissolve the injunction at any time." Id. at 1094 (citing § 741.30(6)(c), Fla. Stat. (2018) ). A party moving to dissolve the injunction must show changed circumstances. Id. (citing Alkhoury v. Alkhoury , 54 So. 3d 641, 642 (Fla. 1st DCA 2011) ). To establish a change in circumstances, "the movant must ‘demonstrate that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose.’ " Id. (quoting Alkhoury , 54 So. 3d at 642 ). A trial court considers, when determining whether the injunction continues to serve a valid purpose, whether the victim "reasonably maintain[s] a continuing fear of becoming a victim of domestic violence." Id. (quoting Alkhoury , 54 So. 3d at 642 ).
In Hobbs , the parties were going through a divorce when Mr. Hobbs entered the former marital home and found Ms. Hobbs in bed with another man. Id. at 1093 Mr. Hobbs pushed Ms. Hobbs, who then pushed him back and punched him in the face. Id. Mr. Hobbs then left the home. Id. Ms. Hobbs petitioned for an injunction for protection against domestic violence. Id. She described the incident in her home and alleged that Mr. Hobbs had stalked her. Ms. Hobbs then moved away from the area. Eighteen years later, Mr. Hobbs moved to dissolve the injunction. Id. At the hearing on the motion, Ms. Hobbs testified that Mr. Hobbs never contacted her after the injunction was entered and had never violated the injunction, claiming he had not done so because she had moved away. Id. Ms. Hobbs returned to the area in 2018, claiming that after doing so, third parties told her that Mr. Hobbs was still crazy about her and talked about her. Id.
Mr. Hobbs for his part, testified that he knew nothing about Ms. Hobbs’ relocation or whereabouts following the injunction. Id. He also stated that he did not wish to have contact with Ms. Hobbs. Id. at 1094.
This Court reversed the denial of Mr. Hobbs’ motion to dissolve the injunction, noting that Ms. Hobbs offered no evidence of any violence or threat of violence from Mr. Hobbs after entry of the injunction. Id. at 1095. This Court concluded that Ms. Hobbs’ presumption that the only reason Mr. Hobbs had not violated the injunction was due to her relocation was speculative and not legally sufficient to justify continuation of the injunction. Id. Additionally, the third-party reports were similarly legally insufficient to support a finding that Ms. Hobbs’ fear of violence was objectively reasonable as no threat of violence was conveyed by any of the alleged comments. Id . This Court acknowledged that Ms. Hobbs had a subjective fear of Mr. Hobbs but found the facts insufficient to establish an objective fear, which is required for continuation of an injunction. Id. at 1096.
The facts presented in Hobbs are strikingly similar to those presented in the instant appeal. Here, the injunction was entered in 2003, and Mr. Labrake moved to have the injunction dissolved seventeen years later. Although Appellee alleged Mr. Labrake violated the injunction in 2004 or 2005, she admitted that Appellee had not violated the injunction in the almost fifteen years since. Appellee made no allegations of violence or threats of violence on Mr. Labrake's part since entry of the injunction. Like Ms. Hobbs, Appellee has recently returned to the area after previously relocating. However, unlike Ms. Hobbs, Appellee did not claim that the only reason Mr. Labrake had not violated the injunction was due to her relocation. Additionally, there was no evidence that Mr. Labrake had spoken about Appellee with anyone since her relocation or subsequent return. Further, Mr. Labrake testified that he did not know Appellee's whereabout following the injunction and stated that he did not wish to have any contact with Appellee going forward.
The facts here fail to establish Appellee maintains an objective fear of becoming a victim of domestic violence. Accordingly, Mr. Labrake showed the requisite change in circumstances, and the trial court erred in denying Appellant's motion to dissolve the injunction. See Trice v. Trice , 267 So. 3d 496 (Fla. 2d DCA 2019) (reversing denial of motion to dissolve injunction where the appellant had been acquitted of the criminal charges arising out of the events that supported entry of the injunction, the parties marriage had been dissolved, the parties were not living in the same area, the parties had not seen each other in the six years since the injunction was entered, and the appellant never attempted to contact the appellee in that time); Bush v. Henney , 175 So. 3d 930 (Fla. 4th DCA 2015) (reversing the denial of a motion to dissolve an injunction against domestic violence where, in the fourteen years following entry of the injunction, the injunction had not been violated). Therefore, we reverse the order denying the motion and remand with instructions to dissolve the injunction.
REVERSED and REMANDED .
Roberts, Winokur, and M.K. Thomas, JJ., concur.