Family Law Appellate Update for week ending 8/26/16

FelixBaseman
FelixBaseman

Mitchell v. Mitchell (Fourth DCA, August 24, 2016)

The trial court granted the former wife’s petition for domestic violence injunction (DVI) against the former husband based on a series of text messages that the former husband sent that appeared to be harassing and seemingly threatened that he would harm himself if the former wife did not take him back.  The Fourth DCA reversed.

In granting the petition, the trial court stated that the “only question” under the law is whether the former husband’s actions made the former wife fearful.  The District Court explained that this is the wrong legal standard.  The law requires that the petitioner demonstrate a “reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.”  The “danger feared must be imminent and the rationale for the fear must be objectively reasonable.”

The Court went on to explain that “general harassment” does not suffice, nor does “verbal violence, mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions, and general conditional future threats without overt action.”  Even a representation that the respondent “owns a gun and is not afraid of using it is insufficient to support an injunction absent an overt act indicating an ability to carry out the threat or justifying a belief that violence is imminent.”

The Court noted that the former husband testified without contradiction that he had no history of domestic violence and that he had never laid his hands on the former wife in the past.

Given all of the above, the Court concluded that the evidence failed to show an objectively reasonable fear that the former wife was in imminent danger of becoming the victim of domestic violence.  Accordingly, the District Court reversed the injunction.

Rogers v. Wiggins (Second DCA, August 24, 2016)

The trial court denied a mother’s petition to relocate with her minor child and awarded the father a portion of his attorney’s fees based on its conclusion that the mother’s actions were “selfish” and not in the best interests of the child.  The Second District reversed.

The District Court began by noting the Supreme Court’s seminal case on attorney’s fees, Rosen v. Rosen.  The Court explained that Rosen permits a trial court to deny an award of attorney’s fees (in divorce and paternity cases) when the needy party has engaged in excessive or bad faith litigation.  However, Rosen does not contemplate an award of fees in such situations without the trial court also finding that the payor has the ability to pay.  In this case, the record showed that the mother did not have the ability to pay; therefore, the award of fees to the father was inappropriate.

As an alternative argument, the father suggested that the trial court had the authority to award fees against the mother under its inherent authority to sanction a litigant for inequitable conduct.  The Court disagreed, explaining that this doctrine permitted an award of fees only in cases where the sanctioned party engaged in bad faith and vexatious litigation.  In contrast, in this case the mother had merely pursued relief that the trial court ultimately determined to not be in the child’s best interest.  Such pursuit did not justify sanctioning the mother through an award of fees to the father.