Motion to Dismiss – Factually Innocent
RESPONSE TO PETITIONER’S MOTION FOR EXTENSION OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE
COMES NOW, the Respondent, by and through his undersigned counsel, and hereby files this Response to Petitioner’s Motion for Extension of Injunction for Protection against Domestic Violence (“Motion for Extension”), and in support thereof, states as follows:
1. On September 7, this Court entered a Final Judgment of Injunction for Protection against Domestic Violence without Minor Children, to be in full force and effect until September 7.
2. On August 17, Petitioner filed her Motion for Extension.
3. A hearing on the Petitioner’s Motion for Extension is scheduled for September 6.
MEMORANDUM OF LAW
Section 741.30(1), Fla. Stat., creates a cause of action for an injunction for protection against domestic violence. § 741.28(1), Fla. Stat. Section 741.30(1)(a), Fla. Stat., allows a victim of domestic violence or a person who has “reasonable cause to believe he or she may become the victim of any act of domestic violence” to petition for an injunction. Section 741.30(6)(b), Fla. Stat., allows a victim to petition for an extension of the injunction and gives the court discretion to extend the injunction “after considering the circumstances.”
When moving for an extension of a preexisting injunction, the petitioner must establish either that (1) additional domestic violence has occurred or (2) at the time the petition for extension is filed, he or she has a continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence. Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001). In Giallanza, the court held that the wife’s allegations of general harassment by the husband did not state a prima facie case for extending the injunction for protection against domestic violence. Id. at 165. The court found that there were no factual findings which supported the trial court’s conclusion that the wife had an “objectively reasonable fear that she was in imminent danger of domestic violence.” Id.
In Sheenan v. Sheenan, 853 So. 2d 523 (Fla. 5th DCA 2003), the court held that in order to obtain an extension of a domestic violence injunction, the moving party must present evidence from which a trial court can determine that a coninuing fear exists and that such fear is reasonable, based on all of the circumstances.
In Lee v. Lee, 93 So. 3d 516 (Fla. 2d DCA 2012) the trial court entered an order permanently extending an injunction because “Ms. Lee feels that she continues to need it.” Relying on Giallanza, the appellate court remanded the case for an evidentiary hearing to determine if domestic violence had occurred or if Ms. Lee had a “continuing reasonable fear of being in imminent danger of becoming the victim of domestic violence.” Id. at 518.
Here, the Petitioner has not alleged new grounds in her Motion for Extension, which establishes that (1) she has been the victim of additional domestic violence since the original injunction was granted or (2) that she is in objectively reasonable fear that she is in imminent danger of domestic violence. Therefore, Respondent respectfully requests that the Petitioner’s Motion for Extension be denied.