Malone v. Malone

368 So.3d 1057

Alexis MALONE, Appellant, v. Jacob MALONE, Appellee.

No. 1D21-2133

District Court of Appeal of Florida, First District.

August 9, 2023

Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee; Christine A. Kelly of Lynchard & Seely, Milton, for Appellant.

Jacob Malone, pro se, Appellee.

Per Curiam.

Appellant challenges a final domestic violence injunction entered against her. She argues the trial court erred in denying her motion to dismiss and the final judgment for injunction for protection against domestic violence must be reversed because Appellee's allegations and evidence were legally insufficient to support the injunction. We agree and reverse.

I.

At the time of the injunction, Appellant and Appellee were married with two minor children. Appellee was a member of the Air Force stationed in Okaloosa County, and Appellant was a military dependent. The marriage was contentious and resulted in allegations of abuse on both sides. Relevant to this appeal is Appellee's petition for domestic violence injunction filed on May 27, 2021. Appellant moved to dismiss the petition, arguing Appellee failed to allege that he was in imminent danger of domestic violence or that he was a victim of domestic violence. Appellant argued that of the four acts of violence alleged in the petition, one did not relate specifically to Appellee and the other three did not meet the definition of domestic violence in section 741.28(2), Florida Statutes (2020).

The trial court held a hearing on the motion to dismiss. The court initially granted the motion, but then reversed itself and took testimony. On June 10, 2021, the court entered a final judgment of domestic violence injunction against Appellant for one year. Appellant's motion to vacate the injunction was denied, and this appeal followed.

II.

Although the one-year injunction period has since expired, this appeal is not moot. Appellate courts routinely consider appeals from expired domestic violence injunctions due to the collateral consequences that can flow therefrom. See Bell v. Battaglia , 332 So. 3d 1094, 1097–98 (Fla. 2d DCA 2022) (collecting cases including Mitchell v. Brogden , 249 So. 3d 781 (Fla. 1st DCA 2018) ). We review the trial court's decision to enter the injunction for an abuse of discretion, but the question of whether the evidence is legally sufficient to justify the injunction is a question of law reviewed de novo . Stevens v. Hudson , 345 So. 3d 977, 979 (Fla. 1st DCA 2022).

To obtain an injunction for protection against domestic violence, Appellee had to show he was either a victim of domestic violence or had reasonable cause to believe that he was in imminent danger of becoming a victim of domestic violence. § 741.30(6)(a), Fla. Stat. (2020). Domestic violence is defined as:

[A]ny assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

§ 741.28(2), Fla. Stat. (2020).

The trial court found, and the parties agree, that the only potential act of domestic violence Appellee alleged was stalking. Stalking is defined to include harassment. § 784.048(2), Fla. Stat. (2020). "Harass" means "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. (2020).

The trial court appears to have determined Appellee met his burden by showing Appellant made false allegations of abuse against him to United States Air Force Office of Special Investigations (OSI), which caused him emotional distress. This was error.

First, Appellee failed to show Appellant's conduct was directed at him. Appellee's allegations were based on supposition and never conclusively showed Appellant reported him to OSI. Appellant claimed she never directly reported Appellee to OSI and the only way OSI could have become aware was after she legitimately sought medical care and reported a potential crime. Even assuming Appellant made unfounded reports to OSI or OSI medical personnel, her conduct was not directed at Appellee to constitute harassment.

Second, Appellee failed to show the alleged reports served no legitimate purpose. Courts have held that so long as there is a reason for conduct other than harassment, it has a legitimate purpose even if it is directed at someone who does not welcome it. See Craft v. Fuller , 298 So. 3d 99, 105 (Fla. 2d DCA 2020) ; Wills v. Jones , 213 So. 3d 982, 985 (Fla. 1st DCA 2016) ("[E]ven ‘unfounded reports to authorities or requests for judicial relief, even if repeated or for malicious purposes, do not support the entry of an injunction against domestic or other violence.’ ") (citing Olin v. Roberts , 42 So. 3d 841, 842 (Fla. 1st DCA 2010) ). See also Hart v. Griffis , 288 So. 3d 770 (Fla. 1st DCA 2020) (recognizing the former wife's conduct was anxiety-inducing and uncivil, but finding no proven harassment where her calls were for the legitimate purpose of reporting her allegations that the children were not lawfully enrolled in a particular school as well as reporting fraud).

III.

While Appellee was clearly frustrated with Appellant's uncivil behavior, he failed to show her actions were harassment and by extension stalking, to justify a domestic violence injunction. The final judgment of injunction is REVERSED.

Roberts and Winokur, JJ., concur; Tanenbaum, J., concurs with opinion.

Tanenbaum, J., concurring.

A case may be considered "moot" when it presents "no actual controversy or when the issues have ceased to exist." Godwin v. State , 593 So. 2d 211, 212 (Fla. 1992). Although courts often dismiss moot cases, such matters should not be dismissed when "collateral legal consequences that affect the rights of a party flow from the issue to be determined." Id . ; cf. DeHoff v. Imeson , 153 Fla. 553, 15 So. 2d 258, 259 (1943) ("Although this court has jurisdiction to determine a controversy, even though by lapse of time the issues presented have become moot, it will not do so unless ... such judgment as this court might enter would affect the rights of the parties as they stand at the time the case is reviewed."). On review here is a final judgment of injunction for protection against domestic violence. While the underlying remedy—the injunction—has expired, the judgment that authorized that remedy has not. I agree with the majority's assessment that the trial court erred in entering an injunction for protection against domestic violence in favor of Jacob Malone and against Alexis Malone, but I write separately to explain why the appeal is not moot.

Section 741.30 creates a cause of action for a domestic violence injunction. See id. (1). The statute authorizes the circuit court to render a "final judgment" if, after "notice and hearing," it determines "that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence." Id. (6)(a), (d), (g). The adjudication of this fact authorizes the circuit court to grant the relief it deems proper, "including an injunction." The late Justice Scalia once explained, on behalf of a court majority, this distinction between a judgment and the ensuing remedy in the following way:

In all civil litigation, the judicial

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