On appeal from The Circuit Court for Santa Rosa County ">

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Date: 04-11-2022

Case Style:

Michael T. Labrake vs Francis M. Labrake

Case Number: 21-0456

Judge: PER CURIAM ROBERTS, WINOKUR, and M.K. THOMAS 5 1 1 1

Court:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

On appeal from The Circuit Court for Santa Rosa County

Plaintiff's Attorney:


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Defendant's Attorney: Francis M. Labrake, pro se

Description:

Tallahassee, Florida - Divorce lawyer represented Appellant with appealing an order denying his motion to dissolve an injunction against a domestic violence charge.



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
2
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
3
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
4
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
5
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).

Outcome: Therefore, we
reverse the order denying the motion and remand with
instructions to dissolve the injunction.

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