Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT SUSIE FITZPATRICK, Appellant, v. JOSHUA FITZPATRICK o/b/o V.F., a minor, and V.F., a minor, Appellee. No. 4D2025-2881 [November 12, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jessica Marra, Judge; L.T. Case No. 062022DR003820AXDVCE. Carrie A. Turner of Turner Family Law, Davie, for appellant. Joshua Lucas Fitzpatrick, Weston, pro se. GERBER, C.J. After the circuit court dismissed the husband’s domestic violence injunction petition against the wife, the wife filed a motion seeking attorney’s fees as a sanction under both sections 57.105(1) and 57.105(8), Florida Statutes (2021), against the husband. The circuit court found that the wife could not pursue attorney’s fees as a sanction under section 57.105(1) against the husband. The circuit court reasoned that because this proceeding involved a domestic violence injunction, the circuit court was legally limited to considering the wife’s motion for attorney’s fees under only section 57.105(8)—which applies to “proceedings for an injunction for protection pursuant to s. 741.30, s. 784.046, or s. 784.0485”—and not section 57.105(1), which applies to a “civil proceeding or action.” The circuit court then found that the wife did not satisfy section 57.105(8)’s higher evidentiary burden—requiring her to have shown “by clear and convincing evidence that the [husband] knowingly made a false statement or allegation in the petition.” § 57.105(8), Fla. Stat. (2021) (emphases added). As a result, the circuit court denied the wife’s motion. We agree with the circuit court that it was legally limited to considering the wife’s motion for attorney’s fees as a sanction against the husband under only section 57.105(8), and could not consider the wife’s motion under section 57.105(1). We also agree with the circuit court’s finding that the wife did not satisfy section 57.105(8)’s higher evidentiary burden. Thus, we affirm the circuit court’s order denying the wife’s motion for attorney’s fees as a sanction against the husband under section 57.105(8). Procedural History To preserve the privacy of the parties’ two children who allegedly witnessed, and were the subject of, the petition at issue, we will not discuss the parties’ factual allegations or the circuit court’s factual findings. Rather, our discussion will focus on the legal proceedings only. In June 2022, the husband filed a pro se, ex parte petition for injunction for protection against domestic violence against the wife. A predecessor circuit court issued a temporary injunction under section 741.30, Florida Statutes (2021). Between June 2022 and March 2023, four predecessor circuit courts entered seven orders extending the temporary injunction. In March 2023, after an evidentiary hearing, the fourth predecessor circuit court entered an order dismissing the temporary injunction for protection against domestic violence. The dismissal order pertinently stated: “The evidence presented is insufficient … to allow the Court to issue an injunction for protection against domestic … violence[.]” The wife then filed her motion for attorney’s fees as a sanction against the husband under both sections 57.105(1) and 57.105(8). The wife’s motion pertinently alleged: Pursuant to … [section] 57.105(8), “Attorney fees may not be awarded under this section in proceedings for an injunction for protection pursuant to s. 741.30, s. 784.046, or s. 784.0485, unless the court finds by clear and convincing evidence that the petitioner knowingly made a false statement or allegation in the petition ... with regard to a material matter as defined in s. 837.011(3).” [Section] 837.011(3), defines a material matter as “any subject, regardless of its admissibility under the rules of 2 evidence, which could affect the cour[se] or outcome of the proceeding.” The [husband] knowingly made … false statements or allegations … in the … [p]etition … to induce [the circuit court] to enter an [i]njunction against [the wife] on behalf of their young [c]hildren[.] …. Additionally [pursuant to section 57.105(1)], [the husband] knows or should know that the evidence he has provided in this [a]ction clearly demonstrates that [his] claims are not supported by the material facts necessary to establish a claim for a domestic violence injunction … and are not supported by the application of existing law to the material facts. (paragraph numbers omitted). A successor circuit court (which later issued the order on appeal) set an evidentiary hearing on the wife’s attorney’s fees motion. Both parties appeared at the evidentiary hearing with counsel. During the hearing, the circuit court stated that, because this proceeding involved a domestic violence injunction, only section 57.105(8) applied to the wife’s motion: [T]he way that I read [section] 57.105 is that what applies to these [domestic violence injunction] cases solely is [section 57.105(8)]. It appears to me that the legislature specifically put in an additional subsection and they actually say “attorney’s fees may not be awarded under this section in proceedings for an injunction for protection … unless the court finds [by clear and convincing evidence that the petitioner knowingly made a false statement or allegation in the petition or that the respondent knowingly made a false statement or allegation in an asserted defense, with regard to a material matter as defined in s. 837.011(3).]” And again, I think the burden is higher, if anything, than what [section 57.105(1)] normally requires. But I don’t believe that the remainder of [section 57.105] actually applies. I really think the only thing that’s applicable here is [section 57.105(8)]. 3 The wife’s counsel responded that both sections 57.105(1) and 57.105(8) applied. The wife’s counsel, citing our decision in Cadavid v. Saporta, 344 So. 3d 478 (Fla. 4th DCA 2022), argued: “[Cadavid] … cites … [section 57.105(1)] that talks about when the person initially filed or at any time leading up to the hearing. … And the reason why I … mention … it is that [the husband here] … had the opportunity to withdraw the petition and didn’t do it[.]” The wife’s counsel also cited Lopez v. Hall, 233 So. 3d 451 (Fla. 2018), arguing that Lopez “says that [section 57.105] applies to civil cases,” and, according to the wife’s counsel, “[a] domestic violence case is a civil case[.]” During closing arguments, the husband’s counsel responded: [Cadavid] supports [the husband’s] position that there has to be clear and convincing evidence that he knowingly made a false statement, … and Your Honor already said [knowingly] is the key word. I think Cadavid goes to that. The circuit court asked the husband’s counsel: “[W]hen it comes to [section] 57.105 … am I looking to [section 57.105(8)] alone? Or, am I looking to [section 57.105(1)] and [section 57.105(8)]?” The husband’s counsel responded: I would say it’s [section 57.105(8)]. [The petitioner] has to knowingly make a false statement. … I am confident that Your Honor is going to find that … there was not clear and convincing evidence that [the husband] knowingly made a false statement or allegation in the petition. … The wife’s counsel replied: “Section [57.105(8)] is very clear. It says [“]under this section.[”] And if the legislature wanted something different, it would have said [section 57.105(1)] doesn’t apply and it’s only in cases where people knowingly lie. … [Section 57.105(8)] ties in [sections 57.105(1)(a) and (b)].” After the evidentiary hearing, the circuit court entered a written order denying the wife’s attorney’s fees motion, reasoning: The legislature enacted … [section] 57.105 … to deter meritless filings. … Particularly, pursuant to [section] 57.105(8), which applies to domestic violence actions, “Attorney fees may not be 4 awarded under this section in proceedings for an injunction for protection pursuant to s. 741.30, s. 784.046, or s. 784.0485, unless the court finds by clear and convincing evidence that the petitioner knowingly made a false statement or allegation in the petition ….” In reviewing [section] 57.105(8), the Court finds that this is a stand-alone section that applies to domestic violence actions and that the other sections set forth in [section] 57.105 do not apply. In making this finding, the Court relies upon the unambiguous language in [section 57.105]. Principles of statutory interpretation require courts to give effect to this deliberate choice of words. A plain reading of [section 57.105], consistent with these interpretive principles, confirms that only [section 57.105(8)] applies in the context of domestic violence actions under … [section] 741.30. [Section 57.105] repeatedly distinguishes between the term “section,” which refers to [section 57.105] as a whole … and the term “subsection,” which refers to its individual numbered parts (1 through 8). This linguistic distinction is significant in meaning and how [section 57.105] is to be applied. The legislature in fact specifically amended [section] 57.105 to add [section 57.105(8)] in order to apply [section 57.105] to domestic violence actions and in doing so created a distinct and higher burden than that which applies to the remainder of [section 57.105]. To apply [section 57.105(1)] to domestic violence actions, as [the wife] suggests, would make the language in [section 57.105(8)] superfluous or redundant, a result that is inconsistent with proper statutory interpretation. Thus, [the wife’s] reliance on [section 57.105(1)] is misplaced as is [her] reliance on … Lopez …. Lopez does not specifically apply to [section] 741.30 (Domestic Violence) and, further, was the very case that prompted the legislature to amend … [section] 57.105 … to include domestic violence. Consequently, applying [section 57.105(8)] to the evidence presented, this Court finds that [the wife] has failed to meet her burden by clear and convincing evidence that the [husband] knowingly made a false statement or allegation in his petition for injunction. 5 “[C]lear and convincing evidence requires that ... [t]he evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Cadavid v. Saporta, 344 So. 3d 478 (Fla. 4th DCA 2022). This “heavy burden” does not compare to the “preponderance” standard necessary to obtain an injunction itself. Id. at 483. Thus the dismissal of [the husband’s] injunction for insufficient evidence, alone, does not support a finding for [section] 57.105 fees. And even where it is alleged that [the husband] made false allegations within [his] petition, as is alleged in the instant case, [the wife] must prove that those allegations were knowingly false and the proof of fabrication must be “overwhelming.” Id. [(citation omitted)]. In applying [section] 57.105(8), to the evidence before the Court …, the Court finds that there was not overwhelming proof that the [husband] knowingly made false statements in his petition. The Court considered each statement and reviewed all of the evidence related to same. A review of the video evidence shows that a majority of the statements, with respect to what was taking place during the altercation, involve a level of subjectivity … rather than overwhelming proof of a knowingly false statement. The evidence shows … it is possible that the statements at issue were made through the lens of the [husband] and how he perceived the incident to have taken place, rather than being knowingly false. … [The husband] testified that this [p]etition was written at 1:00 AM without him having the time or ability to re-watch any of his videos of the incident. He testified that he was operating off of memory when drafting this [p]etition and this testimony was not challenged. Having watched the videos of this incident, this Court does not necessarily consider [the husband] innocent in this matter and finds that the [p]etition for injunction was properly dismissed. However, this does not change the fact that [the wife] has failed to meet the heavy burden required by [section] 57.105(8) [to] obtain[] attorney’s fees. (paragraph numbers omitted). 6 This Appeal This appeal followed. The wife summarizes her argument as follows: [T]he [circuit] court erred in finding that [section] 57.105(8) was a stand-alone provision and that the remaining sections of [section 57.105] did not apply. The [circuit] court erred in not awarding attorney’s fees under [section] 57.105(1) …, after [the husband had] failed to correct the false statements in his [injunction petition] over the nine-month proceeding. The inconsistencies in the [husband’s petition,] and the video evidence of the incident[,] was brought to [the husband’s] attention, … and despite the drastic differences, [the husband] failed to correct the false statements in his [p]etition, instead doubling down and relying upon them at each of the six hearings held through[out] the proceedings. Because the wife argues the circuit court erred as a matter of law in applying only section 57.105(8), and not also applying section 57.105(1), in deciding the wife’s attorney’s fees motion, our review is de novo. See AT&T Mobility, LLC v. Rigney, 388 So. 3d 72, 81 (Fla. 3d DCA 2023) (“Although normally a lower court’s order denying a section 57.105(1)(a) motion is reviewed for an abuse of discretion, an appellate court’s standard of review is de novo when the lower court’s denial of section 57.105(1)(a) motion is based on an issue of law.”) (citations omitted). Applying de novo review, we conclude the wife’s argument lacks merit. We agree with the circuit court’s well-reasoned basis for denying the wife’s attorney’s fees motion as a matter of law, including the circuit court’s reliance on Cadavid. In Cadavid, a former girlfriend filed a pro se, ex parte petition for injunction for protection against domestic violence against her former boyfriend. 344 So. 3d at 480. The circuit court issued a temporary injunction under section 741.30, Florida Statutes (2020). Id. The circuit court later dismissed the temporary injunction, finding the former boyfriend’s testimony to be credible and the former girlfriend’s testimony to be less credible. Id. The former boyfriend later filed a motion for sanctions against the former girlfriend under section 57.105. Id. After an evidentiary hearing, the circuit court orally announced it was granting the motion. Id. at 480– 81. The circuit court recited its factual basis for finding why the former girlfriend did not have an objectively reasonable fear of imminent danger 7 of becoming the victim of domestic violence, and then stated: “Accordingly, this [c]ourt finds that [the former girlfriend] knowingly made false statements or allegations in the petition with regard to material matters as defined in § 837.011(3), as required under § 57.105(8), Florida Statutes.” Id. at 481 (emphases added). However, despite the circuit court referencing section 57.105(8) in its oral pronouncement, the circuit court’s written order assessing attorney’s fees sanctions against the former girlfriend and her counsel did so as a sanction pursuant to section 57.105(1), not section 57.105(8). Id. On appeal, the former girlfriend and her counsel challenged the circuit court’s award of attorney’s fees as a sanction under section 57.105(1). Id. The former girlfriend and her counsel argued that the circuit court had abused its discretion in assessing the sanction, because no clear and convincing evidence existed that the former girlfriend had made a false statement or allegation in the petition, as section 57.105(8) required. Id. We agreed with the former girlfriend’s argument, reasoning: In Lopez v. Hall, 233 So. 3d 451, 452 (Fla. 2018), the supreme court held that it is permissible to award fees under section 57.105 in actions for injunctions for protection against repeat, dating, or sexual violence. Following the issuance of Lopez, the legislature amended section 57.105, effective October 1, 2019, to add [section 57.105(8)]. …. … [T]he legislature, through the plain language of [section 57.105(8)], has expressly limited the circumstances in which attorney’s fees can be awarded in cases involving an injunction for protection against domestic violence, requiring a higher standard and level of proof. Rather than just satisfying a preponderance of the evidence standard, the more stringent clear and convincing evidence standard must be met. Id. at 482 (internal citations omitted). Cadavid’s reasoning applies here. Section 57.105(8)’s plain language has expressly limited the circumstances in which attorney’s fees can be awarded in cases involving a domestic violence injunction, like this case, requiring a higher standard and level of proof. The wife here, rather than 8 just satisfying a preponderance of the evidence standard, had to meet the more stringent clear and convincing evidence standard. She did not do so. Thus, the circuit court correctly denied the wife’s motion seeking attorney’s fees as a sanction against the husband under section 57.105(8). Conclusion In sum, we hold that in a domestic violence injunction proceeding, a circuit court is legally limited to considering a motion for attorney’s fees as a sanction under only section 57.105(8)’s higher evidentiary burden, and cannot consider the motion under section 57.105(1)’s lower evidentiary burden. Competent substantial evidence supports the circuit court’s finding that the wife did not meet section 57.105(8)’s higher evidentiary burden to prevail on her motion for attorney’s fees as a sanction against the husband. Thus, we affirm the circuit court’s order denying the wife’s motion for attorney’s fees as a sanction against the husband. Affirmed. SHAW and LOTT, JJ., concur. * * * Not final until disposition of timely-filed motion for rehearing. 9