Susie Fitzpatrick v. Joshua Fitzpatrick O/B/O V.F., a Minor and V.F., a Minor
CourtDistrict Court of Appeal of Florida
Date FiledNovember 12, 2026
Docket4D2025-2881
StatusPublished
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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
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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)].
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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
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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.
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“[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).
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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
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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
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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.
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