Opinion
Nos. 4D2022-2792 4D2022-2794
10-18-2023
Jordanna Serena SHEERMOHAMED, Appellant, v. Edmund Nicholas TOZZI, Appellee.
Susan R. Brown of Susan R. Brown, P.A., Plantation, for appellant.
Consolidated appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case Nos. FMCEl0-006585 and DVCE16-6230.
Susan R. Brown of Susan R. Brown, P.A., Plantation, for appellant.
No appearance for appellee.
Gerber, J.
The mother appeals from the circuit court’s final orders which: (1) granted the father’s third motion to dissolve an injunction protecting the child from domestic violence by the father; (2) granted the father’s motion to restart supervised time- sharing; and (3) denied the mother’s motion to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing. The mother argues, among other things, that the circuit court, in finding the father had shown a substantial change in circumstances to justify dissolving the injunction and restarting the father’s supervised timesharing, had abused its discretion in relying upon the testimony of a psychiatrist whom the father had selected but not fully informed about the father’s post-injunction history. We agree with the mother’s argument and reverse the circuit court’s orders.
We present this opinion in four sections:
1. The procedural history leading to the parties’ motions;
2. The evidentiary hearing on the parties’ motiqns;
3. The circuit court’s ruling on the parties’ motions; and
4. Our review,
1. Procedural History
In 2010, when the child was three years old, the mother filed a paternity action against the father, and filed a separate petition for protection from domestic violence by the father. The circuit court, based on the parties’ mediated settlement agreement, entered a permanent injunction against domestic violence by the father, and later entered a paternity judgment permitting the father to have supervised visits with the child during weekend daytime hours.
In 2016, when the child was nine years old, the mother filed a petition to protect the child from domestic violence by the father. The mother alleged, among other things, that the father had another domestic violence petition filed against him by his then-girlfriend for threatening her safety and life via text messages. The mother also alleged the father had not completed court-ordered therapy, had refused to pay for an agreed independent observer to supervise the father’s visits with the child, and instead had arranged his visits to be supervised by his then-girlfriend who later filed her own domestic violence petition. The mother requested the circuit court to terminate the father’s supervised visits and contact with the child.
After a hearing in 2016, the circuit court entered an injunction protecting the child from domestic violence by the father. The injunction terminated the father’s supervised visits and contact with the child. The injunction also pertinently provided, "[e]ither party may ask the Court to change or end this injunction at any time."
Less than two weeks after the circuit court had entered the injunction protecting the child, the father filed a motion to dissolve the injunction. The father alleged, among other things, no evidence existed that he had harmed the child. The circuit court denied the father’s motion.
One year later, in 2017, the father filed a second motion to dissolve the injunction protecting the child. The father again alleged, among other things, no evidence existed that he had harmed the child. The circuit court denied the father’s second motion.
Five years later, in 2022, when the child was fifteen years old, the father filed a third motion to dissolve the injunction protecting the child. The father alleged, among other things, that the mother’s 2016 petition had not alleged any specific incidents involving the child to have justified the injunction; in the six years since the 2016 injunction had been entered, the father had not violated the injunction; and in 2022, the father had obtained a psychia- trist’s opinion that he was not a risk to the child.
Contemporaneous with the father’s filing of his third motion to dissolve the injunction protecting the child, the father filed a motion to restart his supervised timesharing, arguing that resumed timesharing would be in the child’s best interests.
The mother filed a response arguing the circuit court should deny the father’s motions because, among other things, the father: (1) had not completed his court-ordered therapy; (2) had violated the injunction by setting up websites asking the child to contact him; (8) in 2017, had been arrested for battery upon his then-girlfriend, who had been entrusted to supervise the father’s visits with the child; and (4) in 2019, had pled no contest to, and was placed on four years’ probation for, aggravated stalking including making a threat to kill the same former girlfriend and others through 238 voicemails on the then-girlfriend’s phone.
The mother also filed a motion requesting the circuit court to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing. In support, the mother cited Florida Rule of Family Law Procedure 12.360(a) ("(1) A party may request any other party to submit to … examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. Examinations may include, but are not limited to, examinations involving … mental condition …. (2) An examination under this rule is authorized only when the party submitting the request has good cause for the examination.").
The mother’s motion argued that a neutral psychological examination was necessary because the psychiatrist to whom the father’s motions had referred was not neutral. According to the mother, the same psychiatrist had examined the father when the mother had filed her 2010 domestic violence petition, and that psychiatrist had opined the father was "fine." Thus, the mother argued, considering the father’s history of violence and threats before and after the psychiatrist’s 2010 examination, "any opinion of [that psychiatrist] is not credible."
The mother’s motion lastly argued that if a neutral examiner and the court deemed that the father’s supervised visitation could be resumed, such supervised visitation should occur in a therapeutic setting and via Zoom or a similar platform.
2. The Evidentiary Hearing
The circuit court held an evidentiary hearing on the parties’ motions. At the hearing’s outset, the parties’ counsel agreed the father’s burden of proof on his motions was to show a substantial change of circumstances justifying dissolution of the injunction and the restarting of supervised timesharing. The parties also agreed the mother had the burden of proof on her motion to require the father to undergo a neutral psychological examination.
The father’s first witness was the psychiatrist to whom the father’s motion had referred. The psychiatrist had examined the father upon the mother’s 2010 domestic violence petition and had re-examined the father upon the father’s 2022 motion to dissolve the domestic violence injunction. The psychiatrist testified the re-examination consisted solely of a ninety-minute interview. The psychiatrist found the father did not exhibit any behavior evidencing any type of major mental disorder or any signs or symptoms of any tendency to harm himself or others. The psychiatrist opined that the father loved the child and was not a threat to the child. On cross-examination, the psychiatrist admitted the father had not disclosed that in 2017, the father had been arrested for battery upon his then-girlfriend, who had been entrusted to supervise the father’s visits with the child. The psychiatrist also admitted the father had not disclosed that in 2019, the father had pled no contest to, and was placed on four years’ probation for, aggravated stalking including making a threat to kill the same then-girlfriend. The psychiatrist further admitted, regarding the 2019 case, the father had not disclosed he had left 238 voicemails on the then-girlfriend’s phone threatening violence, including threats to kill her and others around her, without fear of going to prison. The psychiatrist testified the father had disclosed only haying texted a threat to kill the then-girlfriend, who later had obtained a restraining order against the father. The psychiatrist conceded that knowing the full extent of the father’s actions would have been necessary and helpful to fully evaluate the father in 2022 for mental health issues and whether he was dangerous to others. The psychiatrist opined the father’s stress over ten years of trying to be with the child likely played a major role in the father’s episodes of getting upset and making wild threats. The psychiatrist further conceded the fact that the father had engaged in those episodes in 2017 and 2019 demonstrated the father’s mental state had not changed since the psychiatrist’s initial examination in 2010.
On redirect examination, the psychiatrist reiterated his opinion that the father posed no threat to the child.
The father testified next. On direct examination, the father testified he has never hurt, threatened, or endangered the child, and has never been charged with abusing the child. The father testified he was seeking only to resume supervised timesharing with the child.
On cross-examination, the father admitted that in 2019, he had left 238 voicemails on his then-girlfriend’s phone threatening violence, including threats to kill her and others around her, The father testified he regretted having made those threats. According to the father, "I made a horrible mistake, okay. And I was charged with it, I paid for it. I’m … still paying for it. Three years of probation, I still have a year left. I haven’t gotten in any new trouble. But I admit to my mistake and I just want to be able to move on with my life and learn from it." The father testified he had been emotional, frustrated, and never intended to act on those threats, even though he had made those threats two years after his then-girlfriend had ended their relationship. He also testified he no longer blamed anyone, nor had hard feelings or anger towards anyone. The father testified his circumstances had improved, in that he was back living in his hometown, was working, felt good, was in a healthy relationship, was going to church, was going to a gym, was healthy, and was paying his bills. The father testified he just wanted to see the child. The father admitted he had completed only two of the twenty-six therapy sessions which the circuit court had ordered him to complete, but was seeing a friend for an informal weekly therapy session. The father also admitted that even though the 2016 injunction had prevented him from contacting the child, he had set up websites asking the child to call him at his phone number or email him.
On redirect examination, the father testified that since the circuit court’s entry of the injunction protecting the child, he had not made any threats to the mother, and had not committed any violent acts since 2019.
The mother testified last. She testified she opposed the father’s motion to dissolve the injunction protecting the child, and remained concerned that the father would seek revenge by hurting the child physically, emotionally, and mentally. The mother testified that when she and the father were together, the father, multiple times, had threatened to kill the child and everyone around the mother. The mother testified that the father, in addition to setting up the websites asking the child to contact him, also had, on separate occasions, violated the injunctions protecting her and the child by coming to her property and placing cards and a telephone with a note asking the child to contact him. The mother testified that the child had become aware of the websites, which emotionally damaged and embarrassed the child.
On cross-examination, the mother admitted that, despite the father’s attempts to contact the child in violation of the injunction protecting the child, she had never filed a motion to enforce the injunction. The mother also conceded that if a neutral psychological examination determined the father would be able to participate in supervised timesharing via Zoom without saying things which would be harmful to the child emotionally or mentally, then supervised timesharing via Zoom would be reasonable.
In closing arguments, the father’s counsel reiterated that since the circuit court’s entry of the injunction protecting the child, the father had not committed any violence toward the child. The father’s counsel repeated the father’s request to resume supervised visits with the child, "be it [in] person or by Zoom."
The mother’s counsel argued that the father’s only claim of changed circumstances since the circuit court’s entry of the injunction protecting the child was that he was now in a healthy relationship, even though he had not called that person to testify. More importantly, the mother’s counsel argued that the father’s circumstances had changed for the worse, as he had been arrested in 2017 and 2019, including pleading no contest to the charge of aggravated stalking including a threat to kill. The mother’s counsel also took issue with the psychiatrist’s testimony blaming the father’s frustration towards his lack of contact with the child as the basis for the father’s violent behavior towards his ex-girlfriend. The mother’s counsel further argued the circuit court should require the father to undergo a neutral psychological examination before the court determined whether to dissolve the injunction and restart supervised timesharing.
3. The Circuit Court’s Ruling
Immediately after the parties’ counsel completed their arguments, the circuit court orally ruled, in pertinent part:
Here’s what I’m going to do. I find that there has been a substantial change in circumstance in justifying the dissolution of the domestic violence injunction [protecting the child], in that there’s been no evidence of any danger or harm to the child subsequent to the issuance of the injunction, including [based on] the testimony of [the psychiatrist].
There’s no evidence that the underlying scenario still exists, or that the continuation of the injunction will serve any valid purpose. Accordingly[,] I will dissolve the injunction.
I will order the web sites be taken down if they still exist.
I will grant the father’s motion for supervised timesharing with the time-sharing schedule in place prior to the injunction, which is Saturday and Sunday, but no overnights.
Whether that’s in person or by Zoom, I will leave that up to you.
I will … also deny the [mother’s] motion for [neutral] psychological [examination] of the father.
….
[W]hatever you all agree with regard to supervision is fine by me.
….
I will [also order] a couple sessions of [reunification therapy] just to get things going.
The circuit court later entered written orders on the parties’ motions. The circuit court’s written orders, in substance, conformed to the circuit court’s oral ruling.
4. Our Review
This appeal followed. The mother argues, among other things, that the circuit court, in finding the father had shown a substantial change in circumstances to justify dissolving the injunction and restarting the father’s supervised timesharing, had abused its discretion in relying upon the testimony of the psychiatrist whom the father had selected, but had not informed about: (1) the father’s 2017 arrest for battery upon the father’s then-girlfriend, who had been entrusted to supervise the father’s visits with the child; and (2) the father’s 2019 no contest plea to, and resulting placement on four years’ probation for, aggravated stalking including making a threat to kill his then ex-girlfriend and others among 238 voicemails on the ex-girlfriend’s phone. The mother further argues that rather than granting the father’s motions, the circuit court instead should have granted the mother’s motion to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing.
Applying a mixed standard of review, we agree with the mother’s arguments. See Bak v. Bak , 332 So. 3d 1122, 1124 (Fla. 4th DCA 2022) ("The standard of review of a court’s ruling on a motion to dissolve an injunction is abuse of discretion if the order is based on factual matters, and de novo if based on legal matters."); Gordon v. Smith, 615 So. 2d 843, 844 (Fla. 4th DCA 1993), ("[T]he granting or denying of an order for a psychological [examination] is a discretionary act.") (citation omitted).
[1, 2] "[F]or a movant to be entitled to obtain relief on a motion to modify or dissolve a domestic violence injunction, the movant must prove a change in circumstances." Reyes v. Reyes, 104 So. 3d 1206, 1207 (Fla. 5th DCA 2012). "Also, and by analogy, a party seeking an extension of a domestic violence injunction must present evidence from which a trial court can determine that a continuing fear exists and that such fear is reasonable, based on all the circumstances." Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011) (citation and internal quotation marks omitted). Further, on one party’s request to subject another party to an examination, "the party submitting the request has the burden of showing good cause." Fla. R. Fam. L. P. 12.360(a)(2).
[3, 4] Here, the father failed to present competent, substantial evidence sufficient to successfully carry the burden of changed circumstances. Other than the father’s self-serving testimony that he "never intended to act on" his numerous threats to kill or perpetrate violence, the father relied on only the uninformed testimony of the psychiatrist who performed the 2010 psychological examination. The psychiatrist, without any knowledge of the full scope of the father’s post-injunction history, and instead relying on only a ninety-minute interview, was not a competent witness upon whom the circuit court could have relied in granting the father’s motions. We remind trial courts hearing cases involving children of what we stated in Gordon:
When [an] expert has been hired and called to testify by one of the adversaries to a contested proceeding, there is nothing unreasonable or improper with the fact finder declining to accept the testimony of such an expert.… When the subject of the expert’s testimony relates to … minor children, there is an even more important reason for the trial judge to feel uncomfortable with hearing only the expert testimony of a party with an ax to grind.
615 So. 2d at 844 (internal citation omitted),
[5] In contrast to the father, the mother provided competent, substantial evidence to demonstrate she reasonably maintained a continuing fear that the child could become a victim of domestic violence if the father was permitted to restart supervised timesharing. The mother presented undisputed evidence that the father, post-injunction, had been arrested for battery against his then-girlfriend, who had been entrusted to superase the father’s visits with the child, and two years later made 238 violent threats to his then ex-girlfriend. The mother further presented undisputed evidence that the father had failed to complete his court-ordered therapy, and had violated the injunctions protecting her and the child by setting up websites asking the child to contact him and coming to her property and placing cards and a telephone with a note asking the child to contact him.
[6] We further agree with the mother’s argument that the circuit court, rather than relying upon the psychiatrist called by the father, instead should have granted the mother’s motion to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing. The mother’s evidence satisfied rule 12.360(a)’s "in controversy" and "good cause" requirements. See Childs v. Cruz-Childs, 353 So. 3d 119, 121 (Fla. 2d DCA 2022) ("Because the record and the court’s factual findings support the conclusion that [rule 12.360(a)’s] ‘in controversy’ and ‘good cause’ requirements have been met, we conclude that the trial court did not depart from the essential requirements of the law when it ordered the Former Husband to submit to a psychological [examination],").
[7] In sum, we agree with the First District’s conclusion in Alkhoury, which applies equally here:
In the specific context of a domestic violence injunction, we believe the "changed circumstances" rule can best be carried out by a requirement that a party, against whom a domestic violence injunction has been entered, must, if such party seeks to dissolve the injunction, demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose. Because the [father] presented no such evidence, we find that the trial court should not have dissolved the injunction.
Conclusion
Based on the foregoing, we conclude the circuit court, abused its discretion in: (1) granting the father’s third motion to dissolve the injunction protecting the child from domestic violence by the father; (2) granting the father’s motion to restari supervised timesharing; and (3) denying the mother’s motion to require the father to undergo a neutral psychological examination before the circuit court determined whether to dissolve the injunction and restart supervised timesharing. We therefore reverse those orders. We remand for the circuit court to reinstate the injunction protecting the child from domestic violence by the father, and thereby terminate the father’s supervised visits and contact with the child. We further direct the circuit court that if the father files a fourth motion to dissolve the injunction and restart supervised timesharing, the circuit court must order the father to undergo a neutral psychological examination pursuant to rule 12.360 before determining whether to dissolve the injunction and restart supervised timesharing. In ordering such examination, we remind the circuit court that its order "must specify the time, manner, conditions, and scope of the examination" as required by rule 12.360(a)(1)(B). King v. Escobar, 352 So. 3d 26, 27 (Fla. 4th DCA 2022).
Reversed and remanded with directions.
Ciklin and Artau, JJ., concur.