Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2974 _____________________________ MICHAEL WHITFIELD, Appellant, v. HALEY BREANN MEEKS & OBO K.M.M., Appellees. _____________________________ On appeal from the Circuit Court for Okaloosa County. Terrance R. Ketchel, Judge. July 15, 2021 PER CURIAM. Appellant, Michael Whitfield, appeals the trial court’s amended final judgment of injunction against dating violence entered against him in favor of Appellees, Haley Breann Meeks and her minor son, and raises two issues. Appellant first argues that the evidence presented at the final hearing was legally insufficient to support a finding that Ms. Meeks had a reasonable fear that she was in imminent danger of another act of dating violence. Appellant also claims that the trial court violated his rights to a full hearing and due process by not allowing him to call his witnesses. We agree with both arguments and, therefore, reverse. BACKGROUND In September 2019, Appellee Meeks filed a petition for injunction for protection against dating violence on behalf of herself and her minor son, and the trial court entered a temporary injunction against Appellant. The final hearing on the petition was held in September 2020. At the beginning of the final hearing, Appellant’s counsel indicated that she had four witnesses present in addition to her client, to which the trial court responded, “We’re not going to - - we’ve got . . . five hearings that are scheduled right at this same time, so I didn’t realize there was that many witnesses. I’m not sure I need all those witnesses, but we’ll see what . . . happens.” Appellee Meeks, who appeared pro se, testified that she had dated Appellant for approximately a year and there were three incidents of violence between the parties. The first incident occurred sometime before May 2019 and entailed Appellant putting his hands around her neck. The second incident took place in May 2019 and involved Appellant ripping off her necklace, taking her phone and throwing it outside, and throwing her against the truck and choking her. The third incident happened in September 2019, on the day the petition was filed. During that incident, Appellant went to Appellee’s workplace after she blocked his phone calls and “was threatening.” When her boss made him leave, he slammed his truck’s door against the side of Appellee’s car, causing a large dent in it and tearing off the mirror. Appellee did not tell anyone about what Appellant had done to her, she did not take any photographs, and she did not file a report until the September incident. Appellee denied that Appellant refused to leave his wife for her and that she became angry as a result. Appellee admitted that in September 2019, shortly before filing the petition, she visited Appellant at his house with her son and she invited Appellant and his family to the child’s birthday party. Appellant admitted to getting angry and arguing with Appellee Meeks, but he denied the allegations of violence. He testified that a couple of days before the September incident, he ended his relationship with Appellee and told her he was going to work things out with his wife, which made Appellee angry. 2 Appellant denied ripping off Appellee’s necklace, throwing her against the truck, choking her, otherwise putting his hands on her or hurting her, or threatening her. With regard to the September incident, Appellant testified that he tried to make Appellee talk to him because she had told him that she was pregnant and he would never see his child, and he did not slam her car with his vehicle’s door. Appellant had not had any contact with Appellee since the September incident. When Appellant asked to call his next witness, the trial court wanted “to understand why.” Counsel named the four witnesses and explained what each of them would testify about. Three of the witnesses would have provided testimony relating to the third incident; specifically, that the vehicle Appellant was driving on the day of the incident was not damaged and could not have caused the damage to Appellee Meeks’s car. The fourth witness, Appellant’s mother, would have testified regarding the dynamics between the parties right before the filing of the petition, such as Appellee Meeks contacting and visiting Appellant, as well as her demeanor. The trial court told Appellee that Appellant’s proposed evidence was inconsistent with her claim regarding the September incident. The court then stated that it was not allowing Appellant to call his witnesses because “the Court finds that the issue, the evidence relating to the issue at [Appellee’s workplace] and what occurred with the vehicle is contradictory. The Court is not entering an injunction based upon that. However, the Court is entering an injunction based on the other issues.” In announcing that it was entering a five-year injunction, the trial court noted that one of the parties was “lying through their teeth” and found that “there is a basis for an injunction. I believe there was . . . violence.” The court subsequently entered an amended final judgment of injunction for protection against domestic violence. This appeal followed. ANALYSIS A final judgment of injunction is reviewed for a clear abuse of discretion, but whether the evidence is legally sufficient to support the issuance of the injunction is reviewed de novo. Sumners v. Thompson, 271 So. 3d 1232, 1233 (Fla. 1st DCA 2019). Section 3 784.046(2)(b), Florida Statutes (2019), authorizes the issuance of an injunction against dating violence for the protection of “[a]ny person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence.” To obtain an injunction against dating violence, the petitioner must prove with competent, substantial evidence that she has reasonable cause to believe that she is in imminent danger of another, future act of dating violence. Nuila v. Stolp, 188 So. 3d 105, 106 (Fla. 5th DCA 2016); see also Schultz v. Moore, 282 So. 3d 152, 153 (Fla. 5th DCA 2019). “In determining whether reasonable cause exists, ‘the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.’” Brungart v. Pullen, 296 So. 3d 973, 976 (Fla. 2d DCA 2020) (citation omitted). Here, the trial court found that dating violence had occurred and entered a final injunction based upon the pre-May 2019 and May 2019 incidents. The trial court expressly stated that it was not entering the injunction based on the September 2019 incident, finding the evidence was contradictory in that regard. The more recent of the two acts of violence underlying the injunction occurred approximately four months before the filing of the petition and sixteen months before the final hearing and the entry of the final judgment of injunction in September 2020. The record provides no indication that there has been any violence or threat of violence * since May 2019, and Appellant’s unrefuted testimony reflected that there has been no contact between the parties since September 2019. See Cook v. McMillan, 300 So. 3d 189, 191–92 (Fla. 4th DCA 2020) (concluding that the evidence was insufficient to support a finding that the appellee was in reasonable fear of imminent danger of a future act of dating violence where the appellant’s communication did not include threats of violence, and explaining that she could not rely on the past incident of violence * “‘Violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(1)(a), Fla. Stat. 4 to establish a fear of imminent future violence, and there was no evidence that he threatened or approached her); see also Schultz, 282 So. 3d at 153 (concluding that the evidence was legally insufficient to support a finding that the appellee had a reasonable fear of imminent danger of another act of dating violence where there was no evidence that the appellant threatened her with physical injury or violence after the last incident of dating violence, which occurred about two weeks before the final hearing); Nuila, 188 So. 3d at 107 (finding there was not sufficient evidence of reasonable cause to believe the appellee was in imminent danger of another act of dating violence where she testified that she suspected the appellant was responsible for the vandalism at her home the month before the violence, but she had no proof and the trial court did not consider that allegation, and although she testified that she was afraid the appellant might try to hurt her again, there was no evidence that he ever threatened her with physical injury or violence and there was no contact between them after the one incident of violence). Additionally, despite claiming in her petition that she feared for her and her son’s safety, in mid-September 2019, following the incidents that underly the injunction, and only a couple of weeks before filing the petition, Appellee Meeks went to Appellant’s home with her son and she invited him to the child’s birthday party. See Magloire v. Obrenovic, 308 So. 3d 258, 260–63 (Fla. 2d DCA 2020) (reversing the final judgment of injunction because the incidents of threats and abuse that occurred over a year prior to the filing of the petition were too remote to be considered reasonable cause to believe the appellee was in imminent danger of future violence and there was no evidence that the appellant recently threatened or even tried to contact her, and noting that despite claiming that she feared for her and her child’s safety, the appellee continued to contact the appellant and his family after the incidents of violence); see also Curl v. Roberts o/b/o E. C., 279 So. 3d 765, 767 (Fla. 1st DCA 2019) (“Incidents remote in time by as little as a year are insufficient to support entry of a new injunction, absent allegations of current violence or imminent danger that satisfy the statute.”). Based on the specific facts of this case, we conclude that the evidence was legally insufficient for a finding that Appellee Meeks had a reasonable fear of imminent danger of becoming the victim of another act of dating violence. 5 Moreover, even if sufficient evidence had been presented, we would be constrained to reverse because the trial court deprived Appellant of a full hearing and due process by refusing to hear testimony from his witnesses. Section 784.046, which creates a cause of action for an injunction for protection against dating violence, requires a “full hearing” prior to the issuance of a permanent injunction. § 784.046(2), (6)(a), (6)(c), Fla. Stat. (2019); see also, e.g., Parise v. Selph, 175 So. 3d 389, 389–90 (Fla. 1st DCA 2015). A full hearing includes the direct and cross examination of witnesses and the presentation of any other evidence. Putzig v. Bresk, 183 So. 3d 1046, 1047 (Fla. 4th DCA 2015) (reversing the final injunction because the trial court abused its discretion by denying the appellant the opportunity to call witnesses, present evidence, or cross-examine the appellee). Furthermore, due process requires that at the injunction hearing, “the parties have a reasonable opportunity to prove or disprove the allegations made in the complaint, including ‘allowing relevant testimony of pertinent, noncumulative witnesses who are present and cross-examination of the parties.’” Parise, 175 So. 3d at 390 (reversing the final injunction upon concluding that the appellant “was not afforded the due process associated with a full hearing” because the trial court deprived him of a full opportunity to present evidence in opposition to the petition by denying his request to call a witness) (citation omitted); see also Porter v. Hoeft, 951 So. 2d 51, 52 (Fla. 2d DCA 2007) (reversing the final injunction because it was not supported by competent, substantial evidence and adding that “even if sufficient evidence had been introduced, we would still find it necessary to reverse because the circuit court erred in refusing to hear testimony from Porter’s witnesses”). We have stated that “time constraints are not an excuse for a trial court’s failure to conduct a full hearing.” Furry v. Rickles, 68 So. 3d 389, 390 (Fla. 1st DCA 2011) (reversing because the appellant “was denied a reasonable opportunity to present his case”); see also Ohrn v. Wright, 963 So. 2d 298 (Fla. 5th DCA 2007) (concluding that the trial court violated due process by not permitting the appellant to call a witness who could have supported her version of the incidents, and stating that “[w]hile we are sympathetic to the time constraints faced by busy trial courts, we cannot ignore the dictates of the Florida Statutes or the requirements of 6 fundamental due process concerning the procedures to be utilized in making critical decisions of this nature”). In this case, the trial court did not find Appellant’s proffered witness testimony irrelevant, cumulative, or otherwise inadmissible. To the contrary, the court acknowledged that the proffered testimony about the vehicle damage contradicted Appellee Meeks’s claim as to the third incident. The witnesses’ testimony would have been relevant to determining the parties’ credibility. Appellant denied the allegations of physical violence and vehicle damage, and Appellee Meeks presented no evidence besides her own testimony. The trial court even recognized in entering the final injunction that one of the parties was “lying through their teeth.” The testimony of Appellant’s mother about the dynamics between the parties right before the filing of the petition would have been especially relevant not only as it pertained to whether violence occurred as claimed by Appellee Meeks, but also as to whether she was in reasonable fear of imminent danger of another act of dating violence. Therefore, we must reverse the amended final injunction for the additional reason that the trial court’s decision not to allow Appellant to present his witnesses deprived him of the statutorily required full hearing and violated his right to due process. CONCLUSION For the foregoing reasons, we reverse the amended final injunction and remand for further proceedings consistent with this opinion. REVERSED and REMANDED. LEWIS, OSTERHAUS, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 7 Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant. No appearance for Appellees. 8