Jonathan Padilla W v. Tenille L. Pickett, E.A., a minor

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

JONATHAN PADILLA, Appellant,

v.

TENILLE L. PICKETT, Appellee.

Nos. 4D2023-0939, 4D2023-0963 and 4D2023-0965

[May 15, 2024]

Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Lauren M. Alperstein and Dale Cohen, Judges; L.T. Case Nos. FMCE15-011437 and DVCE-23-001539.

Jonathan Padilla, Cooper City, pro se.

Marc A. Burton and Richard J. Burton of The Burton Firm, P.A., Aventura, for appellee.

PER CURIAM.

Appellant challenges the dismissal without prejudice of a petition for a temporary injunction for domestic violence. Appellant had filed the petition against appellee, alleging that appellee had committed domestic violence against their daughter. Although a temporary ex parte injunction was entered, when the matter came for a hearing, appellant admitted that the act of physical violence alleged in the complaint had occurred years prior. The remaining reports attached to the complaint did not provide any current incidents of physical violence, only harassment and verbal abuse. Without hearing further evidence, the court dismissed the temporary injunction without prejudice. 1

1 This order was appealed in Case No. 4D2023-0963 and was one of the orders

appealed in Case No. 4D2023-0965. Thus, this opinion disposes of the appeal of that order in both cases. The second order appealed in Case No. 4D2023-0965 has already been dismissed by our court.

We affirm. The only incident of physical violence was stale and cannot form the basis of an injunction. See Battaglia v. Thompson, 203 So. 3d 1018, 1019 (Fla. 2d DCA 2016). The remaining attachments to the petition do not show any further incidents of physical violence, and the verbal abuse reported in the attachment is insufficient to warrant an injunction. See Mitchell v. Mitchell, 198 So. 3d 1096, 1100 (Fla. 4th DCA 2016) (finding “verbal violence” and “general harassment” insufficient). The trial court’s dismissal without prejudice was not an abuse of discretion, as the petition itself was insufficient.

Consolidated with this appeal is Case No. 4D2023-0939, in which appellant seeks review of an order denying his emergency motion for temporary custody. This is a non-final, non-appealable order. The trial court merely denied appellant’s request to treat the matter as an emergency. The court did not address the motion’s substance, i.e., the modification of custody request, and thus the trial court’s non-final order on the motion does not come within the matters appealable pursuant to Florida Rule of Appellate Procedure 9.130.

Affirmed as to Case No. 4D2023-0963 and 4D2023-0965; dismissed as to 4D2023-0939.

WARNER, CONNER and ARTAU, JJ., concur.

• • * * Not final until disposition of timely filed motion for rehearing.