PARTLOWE v. GOMEZ

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Docket Number

Case No. 2D00-5309

Attorney(S)

Cynthia L. Greene of Law Offices of Cynthia L. Greene Associates, P.A., Miami; and Law Offices of Fogel, Rubin Fogel, Miami, for Appellant. Lisa A. Baird and Martyn W.D. Verster of Baird Verster, P.A., Miami, for Appellee.

Judges

Chris W. Altenbernd

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Smart Summary

Factual and Procedural Background

Danny Partlowe, the maternal grandfather and temporary custodian of minor Jeremy Gomez, obtained an ex parte temporary injunction individually and on behalf of the child against Jerry R. Gomez (the child's father) alleging a single incident in which Mr. Gomez threatened Mr. Partlowe and poked him in the child's presence. Mr. Gomez moved to dismiss the ex parte injunction and petition as to Mr. Partlowe, asserting that Partlowe lacked standing under the domestic violence statute. The trial court dismissed the petition as to Partlowe, finding Partlowe and Gomez are not related by blood or marriage, never resided together, and do not share a child in common under section 741.28, Florida Statutes (2000); the portion of the action on behalf of the child was transferred to Miami-Dade County. Partlowe appealed the dismissal and vacating of the temporary injunction.

Legal Issues Presented

Whether Danny Partlowe, as the child's grandfather and temporary legal custodian, has standing under section 741.30(1)(e) and the definition of "family or household member" in section 741.28(2) to seek a domestic violence injunction against the child's father based on having a "child in common."

Arguments of the Parties

Appellant's Arguments

Mr. Partlowe argued that, as the grandfather and legal custodian of the minor, he falls within sections 741.30(1)(e) and 741.28(2) because he has a "child in common" with Mr. Gomez and thus has standing to seek a domestic violence injunction.

Appellee's Arguments

Mr. Gomez argued that Mr. Partlowe lacks standing under the domestic violence injunction statute because they are not spouses, not related by blood or marriage, never resided together, and do not share a child in common as contemplated by the statute.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the relevant statutory provisions: section 741.30(1)(e) authorizing injunctive relief for "family or household members" and section 741.28(2) defining "family or household member" to include "persons who have a child in common." The court noted that the phrase "child in common" is undefined in the statute and found no indication the legislature intended that phrase to include a relationship between a biological parent and a person who holds legal custody solely by court order. The court interpreted the inclusion of "child in common" (added in 1991, ch. 91-210, § 6, Laws of Fla.) as intended to protect parents of children born out of wedlock from one another. The court also cited the instructions to Florida Family Law Form 12.980(b), which state that the domestic violence laws apply when the respondent is "the other parent of your child(ren)" and suggest alternative relief (repeat-violence injunction) when the listed relationships do not exist. Based on this textual and contextual statutory interpretation, the court concluded the domestic violence statute does not grant Partlowe standing to seek relief against his son-in-law solely because he has legal custody of the child.

Holding and Implications

The trial court's order dismissing Partlowe's petition and vacating the ex parte temporary injunction is AFFIRMED.

Implications: The direct effect is that Partlowe lacks statutory standing under the domestic violence injunction statute to obtain relief against Mr. Gomez in his individual capacity; the court affirmed dismissal of his petition and the vacating of the temporary injunction. The opinion does not announce or rely on any new judicial precedent and indicates that legislative amendment would be required to extend statutory protection to individuals in Partlowe's situation.

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DANNY PARTLOWE, Appellant, v. JERRY R. GOMEZ, Appellee.

ALTENBERND, Acting Chief Judge.

Danny Partlowe appeals a final order dismissing his petition for a domestic violence injunction and vacating the initial ex parte temporary injunction entered against Jerry R. Gomez. The trial court held that, pursuant to section 741.30, Florida Statutes (2000), Mr. Partlowe lacked standing to maintain his cause of action. We conclude that the trial court correctly interpreted the language of the domestic violence injunction statute. Accordingly, we affirm the trial court's order.

Mr. Partlowe is the maternal grandfather and temporary custodian of Jeremy Gomez, a minor child. The child's mother is deceased. Mr. Gomez is the child's father and Mr. Partlowe's son-in-law. Mr. Partlowe obtained an ex parte temporary injunction, individually and on behalf of the minor child, against Mr. Gomez on October 18, 2000. The basis for the petition was an allegation of a single incident during which Mr. Gomez repeatedly threatened Mr. Partlowe with violence and poked at Mr. Partlowe's body with his finger while yelling at him. The incident occurred in the child's presence.

Mr. Gomez filed a motion to dismiss the ex parte temporary injunction and petition filed on behalf of Mr. Partlowe individually, arguing that Mr. Partlowe lacked standing under the domestic violence injunction statute to obtain an injunction. The trial court entered an order dismissing the petition as to Mr. Partlowe because it found that Mr. Partlowe and Mr. Gomez are not related by blood or marriage, never resided together, and do not share a child in common. § 741.28, Fla. Stat. (2000).

As to the ex parte injunction and petition filed on the child's behalf, this portion of the action was transferred to Miami-Dade County, where the parties are currently involved in a custody dispute over the child.

Mr. Partlowe contends that the trial court erred because, under sections 741.30(1)(e) and 741.28(2), as grandfather and legal custodian of the child, he has a "child in common" with Mr. Gomez. We disagree.

Mr. Partlowe does not challenge the court's finding that he is not related to Mr. Gomez by blood or marriage and that they have never resided together.

Section 741.30(1)(e) governing domestic violence injunctions provides:

This cause of action for an injunction may be sought by family or household members. No person shall be precluded from seeking injunctive relief pursuant to this chapter solely on the basis that such person is not a spouse.

Section 741.28(2) defining "family or household members" provides:

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time.

(Emphasis supplied.) These statutes do not confer standing upon Mr. Partlowe to obtain a domestic violence injunction against his son-in-law in this case. The phrase "child in common" is not defined. There is no indication that the legislature intended that phrase to include the relationship between a biological parent and a person who has legal custody only by virtue of a court order. We conclude that the legislature added the phrase "child in common" to the statute in 1991 so that parents of children born out of wedlock could be protected from one another.See ch. 91-210, § 6, Laws of Fla.

The drafters of Florida Family Law Form 12.980(b), Petition for Injunction for Protection Against Domestic Violence, have apparently reached the same conclusion. The instructions for that form provide:

The domestic violence laws only apply to your situation if the respondent is your spouse , former spouse, related to you by blood or marriage, living with you now or has lived with you in the past (if you are or were living as a family), or the other parent of your child(ren), whether or not you have ever been married or ever lived together. If the respondent is not one of the above, you should look at Petition for Injunction for Protection Against Repeat Violence, Florida Supreme Court Approved Family Law Form 12.980(g), to determine if your situation will qualify for an injunction for protection against repeat violence.

We agree with Mr. Gomez that we cannot interpret the domestic violence injunction statute to grant Mr. Partlowe relief in this case. If the Florida Legislature wants section 741.30 to protect individuals in Mr. Partlowe's situation, it will need to amend the relevant portions of the statute to reflect that intent.

Affirmed.

WHATLEY and NORTHCUTT, JJ., Concur.