transcript of august 29 ifp hearing linda margo hart flax dimura hart, cfre
TRANSCRIPT
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IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA
FAMILY DIVISION
STEVEN TODD FLAX,
Petitioner, CASE NO: 08-DR-012537
vs.
DIVISION: H LINDA HART FLAX,
Respondent. ________________________ 1
TRANSCRIPT OF PROCEEDINGS
BEFORE:
TAKEN AT:
DATE AND TIME:
RECORDED BY:
TRANSCRIBED BY:
HONORABLE CHERYL B. THOMAS
Courtroom 303 Edgecomb Courthouse Tampa, Florida
August 29, 2008 1:30 p.m. docket
Shan'e Jones Electronic Court Reporter
Michael Drake Electronic Court Reporter
(ORIGINAL (COPY
Record Transcripts Incorporated 501 East Kennedy Boulevard, Suite 1230
Tampa, Florida 33602 (813) 514-510 0
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APPEARANCES
REPRESENTING THE PETITIONER:
Chris E. Ragano, Esquire The Law Firm of Chris E. Ragano, PA 1540 West Cleveland Street Tampa, Florida 33606
REPRESENTING THE RESPONDENT:
Wi11iam M. Ignatuck Jr., Esquire William M. Ignatuck Attorney at Law 3922 North Tampa Street Tampa, Florida 33603
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I N D E X
PAGE
PROCEEDINGS .... . ................................................. . 4
DEPUTY FREDRICK MEZATESTA Direct Examination by Mr. Ragano . ... ......................... 12
. Cross-Examination by Mr. Ignatuck ............... : ........... 17
STEVEN FLAX Direct Examination by Mr. Ragano ............................ 20 Voir Dire Ex amination by Mr. Ignatuck ....................... 30 Direct Examination Continued by Mr. Ragano .................. 37 Cross-Examination by Mr. Ignatuck ........................... 54
CERTIFICATE OF THE COURT REPORTER ................................ 98
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PRO C E E DIN G S
THE COURT: This is Steven Todd Flax and Linda
Hart -Flax. Starting with the petitioner, please announce
your names for the record.
THE PETITIONER: Steven Flax.
MR. RAGANO: Your Honor, my name is Chris Ragano. I
represent the petitioner . And this is Daryl Dikeman (ph).
He is a -- basically a paralegal at my firm. And this is
Laurel Farrell (ph). She's observing from Allen Dell.
THE COURT: Okay. Respondent?
THE RESPONDENT: Linda Hart -Flax.
MR. INGATUCK: William M. Ignatuck, attorney for the
respondent, Linda Hart-Flax.
THE COURT : Okay. Will the parties please raise your
right hands? Swear or affirm to tell the truth, whole truth,
and nothing but the truth?
THE PETITIONER: I do.
THE RESPONDENT: I do.
THE COURT: We're here this afternoon because, Mr. Flax,
you filed a petition with the Court requesting an order of
protection against domestic violence based upon an incident
or incidences involving Mr. Flax. Sir, is everything in your
petition true and correct?
THE PETITIONER: Yes, it is, ma'am -- Your Honor.
THE COURT: Do you wish to go forward with this order of
5
C protection today?
2 THE PETITIONER: I'm sorry? Yes.
3 THE COURT: Do you wish to go forward with this order of
4 protection today?
5 THE PETITIONER: Yes, Your Honor.
6 THE COURT: Ms. Flax, have you had a chance to read the
7 statements made by the petitioner in his petition?
8 THE RESPONDENT: Yes, I have .
9 THE COURT : Were you arrested because of this incident?
10 THE RESPONDENT: Yes, I was.
11 THE COURT : I must advise you you have the absolute
12 ~", ... right to remain silent. Anything you say can be used against
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13 you. This is not a criminal case. This is a civil case.
14 However, it is an official court proceeding. If the
15 prosecutor chooses, they can get a copy of any statement that
16 you make here and use it against you in your criminal case.
17 Generally it's my suggestion if there's a criminal charge
18 that you not make any statements. I will enter a denial on
19 your behalf and grant the order of protection. Once the
20 criminal case is over, if you choose to, you may come back
21 and tell your side of the story. However, you are in court
22 this afternoon with able bodied counsel. And I'm sure he's
23 advised you of what your rights are. However, it is my
I, 24 responsibility as the Court to ensure that you've been
25 advised. So at this time you can speak with him and then
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advise the Court of how you wish to proceed.
MR. IGNATUCK: Your Honor, at the -- we will I think
made that decision at the close of the petitioner's case if
we could.
THE COURT : Okay. So you wish to go forward with a
hearing. It's just a question of whether you wish to have
your client testify; is that what you're telling me?
MR. IGNATUCK: That -- that's correct. And we also have
pending before Your Honor respondent's motion to dismiss
injunction or alternatively motion for contempt against
petitioner that was forwarded two days ago to the Court and
to counsel.
that.
But
THE COURT: All right. It seems as though I did see
I don't know -- I don't see it on top of the file .
MR. IGNATUCK: I have an -- I have an extra copy if you
need it, Your Honor.
THE COURT: Okay.
MR. RAGANO: Judge, I'm going to object going forward
with that. There has been no notice of hearing provided.
The local rules require five days notice. No notice -- we're
talking about a contempt action. And specifically when
you're dealing with contempt, it has to have specific
language in the notice of hearing. And he has not provided
any notice. I'm going to object to even going forward on
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c-' that whatsoever, Your Honor .
2 THE COURT: We may very well not go forward, but I just
3 need to see it so that I can know what it is. It's not
4 likely that we have contempt hearings at the time of the
5 initial order of protection. Number one, contempts generally
6 are forwarded to the State Attorney's Office first to see if
7 they wish to proceed on criminal charges. So for that reason
8 alone it's not likely that I would address that today. And
9 number two, again, notice is usually provided for those. And
10 then they are scheduled for a separate hearing.
11 MR. IGNATUCK: Well, Your Honor, I would point out that
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this case was scheduled for a final hearing on August 12th.
\ 13 And it was continued at the request of the petitioner over
14 the respondent's strong objections. And -- and I think the
15 facts of the case -- well, the contempt issue I understand
16 may be continued. We still would like to bring the motion to
17 dismiss to the Court's attention based upon the facts that
18 have occurred since the hearing on -- on August the 12th.
19 THE COURT: Okay. Well, you may very well be able to
20 address your motion to dismiss at the close of the case. But
21 with reference to the contempt, we won't go forward on that
22 at this time.
23 MR. IGNATUCK: That -- that's fine. I'm more interested
') 24 in the motion to dismiss. But I'd ask the Court to at least
25 consider i t at this time. But based on what's occurred since
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c- the entry of the injunction -- there's been two continuances
2 in this case as a matter of fact. And the first continuance
3 was at the request of the petitioner on August the 12th.
4 MR. RAGANO: Your Honor, I'm going to object. We
5 haven't been noticed for this.
6 THE COURT: And I'm not sure what the point is if we're
7 going forward today.
8 MR. IGNATUCK: This -- this is a pretrial motion that
9 should be heard before the trial. Just like in a criminal
10 case, if you file a motion to suppress, it can be heard at
11 any time before the trial. This is a motion to dismiss based
12 on conduct that's occurred since the continuation. The ./~ -~
( 13 petitioner wanted a continuance of this hearing on August
14 12th. The Court granted a continuance for one week. Then
15 there was a second continuance that was granted due to the
16 tropical storm. Now what we're filing is a motion to dismiss
17 the injunction based upon the petitioner's own violation of
18 the injunction. And I think that's something that the Court
19 can consider prior to taking testimony in the hearing as to
20 whether or not that conduct rises to the level that the Court
21 can dismiss the injunction .
22 THE COURT: But if we have the hearing and I dismiss the
23 injunction, would not the contempt be moot for your motion to
\ 24 dismiss? )
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25 MR. IGNATUCK: The -- well, the motion to dismiss, I
just ask that the Court consider it today along with the
injunction since -- since we're here for the hearing itself
on the injunction.
THE COURT: Right. That I will do.
MR. IGNATUCK: Okay, Your Honor . Thank you.
THE COURT: Uh-huh.
MR. RAGANO: Judge, I just want to let the Court know
that I spoke to Douglas Covington of the State Attorney's
Office.
THE COURT : Uh-huh.
MR. RAGANO: And they are going to proceed forward on
criminal charges. They actually have filed on the domestic
violence battery, as well as the -- excuse me, aggravated
assault with a firearm.
THE COURT: Okay.
MR. RAGANO: Your Honor, they're proceeding forward on
those.
THE COURT: Okay. Well, I always advise of the rights
whether they're going forward or not, but --
MR. RAGANO: Okay.
THE COURT: just so that the respondent is aware of
that. I appreciate your brining that to the attention of the
Court.
MR. RAGANO: Thank you, Your Honor.
THE COURT: Okay. Are you ready to proceed?
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( MR. RAGANO: I am.
2 THE COURT: Does either side wish an opening?
3 MR. RAGANO: No, Your Honor. I actually have a Deputy
4 Mezatesta (ph).
5 THE COURT: Okay.
6 MR. RAGANO: He would be the first witness .
7 THE COURT: Okay.
8 MR. IGNATUCK: Judge, could -- I'd like to make a brief
9 opening if I could
10 THE COURT: Okay.
11 MR. IGNATUCK: on behalf of my client.
12 THE COURT: Deputy, before you take the stand -- I'm (
13 sorry.
14 MR. RAGANO: Your Honor, I'm going to waive opening and
15 reserve at the end.
16 THE COURT : Okay. If you will have a seat . I'm sorry,
17 deputy. Mr. Ignatuck?
18 MR. IGNATUCK: Your Honor, this case involves a married
19 couple that have been living together, a doctor that is the
20 petitioner in this case that is on disability income. My
21 client is presently unemployed. She has no source of support
22 other than the petitioner. And as a result of this
23 injunction, she's been basically removed from her residence
'J 24 for now 30 days . That -- it's our position that the facts I
25 will show that there is no reasonable fear of imminent bodily
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( harm, that this is -- this petition has been filed with a
2 motivation of securing an advantage in a dissolution of
3 marriage action which had been filed by the petitioner prior
4 to the entry of this injunction and that the petitioner has
5 engaged in a mean spirited cause from the very beginning of
6 the institution of this action in order to remove the --
7 remove the respondent from her home and continue to keep her
8 removed. He has sent an audio tape that was recorded without
9 my client's knowledge to the State Attorney's Office, to Mark
10 Ober himself, to try to cause criminal prosecution on my
11 client. And this is over an incident of alleged shoving and
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pushing in the marital home that occurred allegedly on July
28th.
14 And since this injunction has been issued, the
15 petitioner himself has contacted the respondent on more than
16 one occasion. He has denied the respondent access to the
17 home with law enforcement in order to remove her various
18 personal belongings, including her dog, her clothing. He has
19 provided her with only a purse that was empty and some
20 medication bottles when she appeared with her father and with
21 law enforcement on August 16th. This has been a -- a course
22 of conduct by the petitioner in order to secure an unfair
23 advantage. And there is really no fear of imminent bodily
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harm. And I -- I know the Court is aware of what the statute
25 entails and the criteria. Thank you.
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( - THE COURT: Deputy, you want to take the stand? You
2 want to raise your right hand, deputy?
3 THE WITNESS: Yes, ma'am.
4 THE COURT: Do you swear or affirm to tell the truth,
5 whole truth, and nothing but the truth?
6 THE WITNESS: Yes, ma'am.
7 THE COURT: Okay. You may inquire .
8 DEPUTY FREDRICK MEZATESTA,
9 having been duly sworn, was examined and testified as follows:
10 DIRECT EXAMINATION
11 BY MR. RAGANO:
12 Q Good afternoon, deputy. (
13 A Good afternoon.
14 Q Deputy, go ahead and state your full name please.
15 A Deputy Fredrick Mezatesta.
16 Q And how are you employed?
17 A Hillsborough County Sheriff's Office .
18 Q How long have you been employed?
19 A Since July of '07 .
20 Q Okay. And I want to take your attention to July 28th,
21 2008 into July 29th, 2008, okay? Did you have a chance to respond
22 to an address in Apollo Beach, Florida?
23 A Yes, sir.
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Q Okay. And can you tell the Court, did you in fact
25 respond to 1009 Sonata Lane?
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( A Yes, sir.
2 Q All right. And what were you called out there for if
3 you could tell the Court?
4 A It was a domestic battery call -- or a domestic call.
5 Q -Okay. And what is a domestic call?
6 A Anything involving marital couple that have children
7 together, reside in the home as a family together.
8 Q Would that include any type of domestic battery?
9 A Yes, it would.
10 Q Okay. Can you tell the Court, did you in fact respond?
11 A Yes, sir.
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Q Okay. And tell the Court what you observed when you I
\ 13 responded.
14 A Upon responding to the incident scene, I met with and
15 interviewed the victim, Steven Flax. I observed the residence to
16 be in order. I smelled an odor of an alcoholic beverage upon
17 Linda Flax's person. I n interviewing Mr. Flax - - do you want me
18 to state what he told me upon interviewing?
19 Q Tell the Court what he told you, yes.
20 A Okay. Mr. Flax --
21 MR. IGNATUCK: I would object on hearsay, Your Honor.
22 THE COURT: Response?
23 MR. RAGANO: It's admission, Your Honor.
) 24 THE COURT: In addition, the deputy is able to testify ./
25 as to what he was told. So he can testify as to why he took
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( what act ion he took.
2 MR. RAGANO: Thank you, Your Honor. Go ahead, deputy.
3 THE COURT: You may continue.
4 THE WITNESS: The victim, Steven Flax, identified the
5 arrested Linda Flax to be a person who assaulted him. I
6 provided the victim with a victim's right pamphlet. Hold on.
7 I'm sorry. Steven Flax related on 07/28/2008, approximately
8 1930 hours, him and his wife got into a -- Linda Flax got
9 into an argument . It turned physical when Linda Flax pushed
10 Steven Flax in the chest multiple times. Steven Flax said
11 the argument started because Linda Flax was mad at him
12 because he did not call to see how she was doing today with
l3 her father being in the hospital. Steven Flax said that him
14 and Linda Flax are going through a divorce and it's not going
15 well. He also told me that Linda Flax has a history of
16 drinking. Steven Flax said that Linda Flax also verbally
17 threatened to cause serious bodily harm to Steven Flax's
18 daughter.
19 BY MR. RAGANO:
20 Q Okay.
21 A That's all he said.
22 Q Now, did you observe any injuries on Mr. Flax?
23 A No, I did not.
) 24 Q Did you take photographs?
25 A Yes, I did.
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( Q And do those photographs show any injuries?
2 A No, they do not.
3 Q And as part of your standard operating procedures of the
4 sheriff's office, are you required to take pictures?
5 A Yes, sir .
6 Q Even to show that there were lack of injuries?
7 A Yes, sir.
8 Q Okay. Now, as a result of that, did you arrest
9 Ms. Flax?
10 A Yes, I did.
11 Q And what was the charge?
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A Domestic battery -- or battery domestic violence.
Q Okay. Now, you testified earlier that you smelled an
14 odor of alcohol on which person?
15 A Ms. Flax.
16 Q Okay. Did she make any admissions to you regarding what
17 you arrested her for?
18 A Yes, she did.
19 Q What did she tell you?
20 A Upon interviewing her, I asked her what happened. She
21 related that her and her husband, Steven Flax, got into an
22 argument. Linda Flax said that during the argument she got mad
23 and pushed Steven Flax in the chest . Linda Flax also said that
24 she never touched Steven Flax.
25 Q Okay. Did you -- did you ask her whether in fact
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( Mr. Flax ever touched, pushed, shoved her?
2 A She said that he never touched her.
3 Q Okay. All right. Now, as a result, did you actually
4 physically arrest and handcuff her?
5 A Yes, .1 did.
6 Q Did you place her in a cruiser?
7 A Yes, I did.
8 Q Did she make any comments while in the cruiser to you?
9 A Yes, she did.
10 Q What did she tell you?
11 A She just said, "You wait till I get out. "
12 ..... -- Q Okay. Who was she directing it to? ... \
13 A I'm guessing she was directing it to her husband.
14 MR. IGNATUCK: Objection -- objection; speculation.
15 THE COURT: Sustained.
16 BY MR. RAGANO:
17 Q All right. Can you tell the Court now as far as the --
18 this process, what -- what would you do now? Do you forward this
19 to the State Attorney's Office?
20 A The charges?
21 Q Yes.
22 A Yes.
23 Q And was that called a -- is it called a direct file I
) 24 believe?
25 A No. She was actually charged in a CRA. She was
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actually arrested. It wasn't direct filed charges on her .
2 Q Okay. Did you notice any odor of alcohol on Mr. Flax?
3 A No, I did not.
4 MR. RAGANO: Okay. I'll pass the witness, Your Honor.
5 THE COURT: Cross?
6 MR. IGNATUCK: Thank you.
7 CROSS-EXAMINATION
8 BY MR. IGNATUCK:
9 Q Deputy, do you also investigate DUI cases, people that
10 are impaired, that are driving on the street?
11 A Yes, sir.
12 Q Did Ms. Flax appeared to be impaired?
13 A She had an odor of an alcoholic beverage upon her
14 person.
15 Q That's not what I asked you. I asked you if she
16 appeared to be impaired other than --
17 A You mean as far as her demeanor?
18 Q No. As far as the -- as far as any of her speech, could
19 you understand everything she told you?
20 A I could understand her, but I could tell she was under
21 some type of influence.
22 Q Was she upset at her husband?
23 A Not until I actually arrested her and put her in the
24 patrol car.
25 Q Now, you said she told you that she never touched Steven
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Flax.
2 A Yes.
3 Q And you say she told you that she pushed Steven Flax.
4 A Yes.
5 Q Didn't she tell you that she pushed past Steven Flax in
6 order to get away from him?
7 A I don't recall that.
8 Q Is that possible that that was her explanation?
9 MR. RAGANO: Objection; speculation.
10 THE WITNESS : I don't recall.
11 THE COURT: Sustained.
12 BY MR. IGNATUCK:
13 Q Okay. Now, you said there were no injuries on -- on
14 Mr. Flax?
15 A That's correct.
16 Q And you photographed him?
17 A Yes.
18 Q Did you photograph my client, Ms. Flax?
19 A No, I did not.
20 Q And you said the residence appeared to be in order?
21 A Yes.
22 MR. IGNATUCK: No further questions.
23 THE COURT: Redirect?
24 MR. RAGANO: No ques tions, Your Honor.
25 THE COURT: Is the deputy free to leave?
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MR. RAGANO: He is free to leave.
THE COURT: Thank you very much.
THE WITNESS: Thank you, Youi Honor.
THE COURT: Call your next witness.
MR. IGNATUCK: Can I recall this -- briefly, Your Honor,
for a question too?
THE COURT : Deputy.
8 BY MR. IGNATUCK:
9 Q I'm sorry I didn't ask this earlier, deputy. Sir, is it
10 true that you really didn't advise Ms . Flax what you were
11 arresting her for?
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A
Q
A
Q
A
As far as?
What the charge was.
Yes, I did.
When, after she got to the jail?
No. Several times when she -- when she was placed under
17 arrest in the patrol car, I advised her of what she was being
18 arrested for.
19 Q And did you allow her to change clothing before you took
20 her to the police car?
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A
Q
A
Q
A
No, I did not, sir.
Didn't -- wasn't she barefooted in the house?
I got her shoes, sir.
You got some slippers for her?
I got her shoes and whatever medication she was on at
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( the time.
2 Q And what was she wearing at the time?
3 MR. RAGANO: Objection; relevancy.
4 THE COURT: Relevance?
5 MR. IGNATUCK: Just a form of impeachment, Your Honor.
6 THE COURT: I'll sustain. You're free to go, deputy.
7 MR. IGNATUCK: Thank you, Your Honor.
8 MR. RAGANO: Thank you, deputy.
9 THE WITNESS: Thank you.
10 MR. RAGANO: Next witness will be the petitioner,
11 Mr. Flax. Your Honor, may I drink some water? I'm not sure
12 if the Court will allow that. ,-
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13 THE COURT: That's fine .
14 MR. RAGANO: Thank you.
15 THE COURT: Sir, you want to raise your right hand? You
16 swear or affirm to tell the truth, whole truth, and nothing
17 but the truth?
18 THE PETITIONER: I do.
19 THE COURT: Okay. You may have a seat.
20 You may inquire.
21 MR. RAGANO: Thank you, Your Honor.
22 STEVEN FLAX,
23 having been duly sworn, was examined and testified as follows:
i 24 DIRECT EXAMINATION /
25 BY MR. RAGANO:
21
( Q Good afternoon, Mr. Flax.
2 A Good afternoon.
3 Q Now, you're going to have to speak up so that everyone
4 can hear you. You have a microphone in front of you. Speak up so
5 everybody can -- everyone can hear you in the courtroom, okay?
6 A Is this better?
7 Q Yes. Thank you.
8 A Okay.
9 Q All right. As the Court asked you previously, you filed
10 a petition for protection against domestic violence against your
II wife, correct?
12 ( '
A Yes, that's correct.
13 Q Okay. At the time that you filed this petition, were
14 you and your wife residing together?
15 A Yes, we were.
16 Q And I know this sounds like a ridiculous question, but
17 were you and she in fact married?
18 A Yes.
19 Q Are you going through a divorce right now?
20 A Yes, we are.
21 Q When did you file your divorce paperwork?
22 A I believe it was June 8th of this year.
23 Q Was that prior to you filing your petition for
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protection against domestic violence?
25 A Yes, it was.
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MR. RAGANO: Okay. May I approach the witness, Your
Honor?
THE COURT: You may.
4 BY MR. RAGANO;
5 Q All right . Mr. Flax, what I've provided to you should
6 be in the court file. It is your petition for protection against
7 domestic violence. And there is an addendum to your petition.
8 And it's basically the allegations that you have made against the
9 respondent, okay? And if you could turn to that please.
10
11
A
Q
Which page would that be?
It appears to be page three of seven. It's a typed
12 description. It's a narrative.
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A
Q
A
Q
I've got it .
Do you have that?
Yes.
Okay. Now, starting with the most recent event that
17 Deputy Mezatesta just testified about, on 7/28/08 or 7/29/08, can
18 you tell the Court briefly what happened between you and the
19 respondent?
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A
Q
A
Yes, I can.
Okay.
On 7/29/2008, I was home with my daughter, Sarah. We
21 were watching TV. At approximately 7 :30 the respondent carne horne.
24 It was pretty clear that she was irritable and angry from the
25 moment she came in. I was c oncerned that she had been drinking
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( and worried that she's --
2 MR. IGNATUCK: Objection, Your Honor. Again,
3 speculation on the part of the witness saying -- testifying
4 as to his concerns at this point. There's been no predicate
5 either established for this.
6 THE COURT: He already said it. But your objection
7 would have been sustained, but it's kind of untimely.
8 MR. IGNATUCK: Thank you, Your Honor.
9 THE COURT: But you may continue.
10 THE PETITIONER: Okay. She started arguing with me
11 immediately, expressing her dissatisfaction that I had not
12 ( -
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called to inquire how she was during the day. The argument
just really blew out of proportion. And she started hitting
14 me in the chest and shoving me in the chest . And I would
15 estimate that over a 30 minute period she must have hit me
16 and shoved me at least 40 to 50 times. She shoved me into
17 furniture. She shoved me from one room into another and
18 pretty much over the railing of a bed in our guest room.
19 During that time, she made numerous threats including
20 threatening to murder my daughter by bashing her head against
21 the side of the swimming pool, holding her under the water
22 until she breathed her last breath. And she said she could
23 do it like that, snapping her fingers and said that she could
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\ do it without remorse. f ,.
25 BY MR. RAGANO:
24
CO Q Okay. Can you tell the Court where did all of this take
2 place, in your residence?
3 A Took place in my residence. It began in the kitchen,
4 worked its way through the living room into the guest room on the
5 first - floor.
6 Q Okay. What part of her body was she pushing you with?
7 A Her hands, two hands, smacking me in the chest and
8 shoving me in the chest .
9 Q Okay. And just for the record, I just want to point out
10 that witness is testifying that he's using a forward motion
11 with both hands pushing forward in an open hand manner; is that
12 correct?
( l3 A Yes. That's how I recall it.
14 Q Okay. Now, is that what you told Deputy Mezatesta took
15 place when he -- when he arrived?
16 A Yes. That's what I told deputy Mezatesta.
17 Q Okay. You also put in your petition here that she hit
18 you as well though. What do you mean by hit -- hitting you? Is
19 that the same thing you're referring to as the pushing?
20 A No. She hit me by taking her hands and smacking me
21 pretty much as hard as she could in the chest with her open hands.
22 This was unusual, but that's what occurred that night .
23 Q Okay. How did she appear? What was her demeanor?
\ 24 )
A She appeared to be extremely upset. She appeared to I
25 guess be mildly intoxicated. She c e rtainly wasn't falling down
25
c- drunk, but she appeared to be intoxicated. And I was concerned
2 that she was going to be violent because she gets violent when
3 she's drunk.
4 Q Okay. What was going through your mind at that time?
5 A That this was -- this was blowing out of proportion.
6 And and I remember her pulling a gun on me in the past. And
7 she is now
8 MR. IGNATUCK: Objection, Your Honor.
9 THE PETITIONER: -- threatening my --
10 MR. IGNATUCK: Objection.
11 THE PETITIONER: -- daughter's life.
12 MR. IGNATUCK: I believe that's /'
( 13 MR. RAGANO: Mr. Flax, hold on. Hold on.
14 MR. IGNATUCK: I object to that line of testimony. It
15 is not substantiated and proper predicate. There's been no
16 time or place mentioned. Just to say he remembers that
17 someone pulled a gun on him in the past is not permissible.
18 THE COURT: Response?
19 MR. RAGANO: Your Honor, I'm not sure what the legal
20 foundation or basis is for that objection. He's put that in
21 his petition. We're going to get into that. We can just tie
22 that up later if the Court wants us to . I mean, I have no
23 problem with that. But --
) 24 THE COURT: Your objection as to date, time, and place
25 is sustained.
26
( MR. IGNATUCK: Thank you.
2 MR. RAGANO: Okay.
3 BY MR. RAGANO:
4 Q And Mr. Flax, when -- when he objects, you have to stop
5 because the Court has to rule on that . So just when there's
6 A Yes.
7 Q -- an objection, just stop if you don't mind please,
8 okay?
9 A I will .
10 Q All right. Can you tell the Court what was going
11 through your mind though when she was doing these things, when she
12 , r"
was pushing you. What were what were you thinking?
( 13 A I was afraid that that I was going to get hurt or my
14 daughter would get hurt.
15 Q Okay. Were there any witnesses to her pushing you?
16 A My daughter was in the house and heard all of this .
17 Q Okay. What's your daughter's name?
18 A Sarah.
19 Q How old is she?
20 A Fourteen .
21 Q Okay. Who -- you said that she was threatening someone.
22 Was that your daughter that she was threatening?
23 A She threatened to murder my daughter, Sarah.
\ 24 ,)
Q Okay. All right. Can you tell the Court why are there
25 not any type of b ruising or injuries on your body?
( )
/
27
1 A I don't really know. I was lucky that night. I have
2 plenty of scars and, you know, wounds on my body of which there
3 are photographs to be shared. But I don't have them from that
4 night.
5 Q Okay. What did you do as a result of her pushing you?
6 A Well, pretty much I nearly, well, backed up and nearly
7 fell over some furniture. But because of my concerns about the - -
8 this escalating to violence, potentially murder against me and my
9 daughter, I went upstairs, I picked up the phone, I walked
10 outside, I called the non-emergency sheriff's phone number, and I
II told them what had happened and asked them if this is something
12 that the sheriff's department needed to get involved with. They
13 told me that they would send someone by to evaluate the situation.
14 Deputy Mezatesta showed up 8:30, 8 :35. And he evaluated the
15 si tuation.
16 Q Okay. Did you in any way initiate this towards the
17 respondent? Were you the first aggressor?
18 A Not at all.
19 Q Okay. Did you act in any way in self defense? Di d you
20 push her back?
21 A I did not act in self defense at all.
22 Q Okay. As a result of Deputy Mezatesta arriving there,
23 did you ask h i m to r emove her from the home?
24 A No. I did not ask him to remove her from the home. I
25 spoke with him outside when he arrived. I described to him what
28
c- 1 had happened pretty much as I have described to you what happened.
2 He came in. I introduced them. He asked her to step outside. He
3 interviewed her. About 15 minutes later, perhaps 20 minutes
4 later, he came back to the house and he notified me that she had
5 admitted to hitting me and that she had made threats against me
6 and that he was arresting her.
7 Q Okay. Now, as -- as part of this incident, did you in
8 fact record any portion of this taking place between you and the
9 respondent?
10 A Yes, I did.
11 Q Okay. What did you use -- what did you use to record
12 " ..... -.. these -- these audio sounds between you and the respondent?
( 13 A A small portable -- we call them tape recorders, but
14 they're now digital records, a Dictaphone basically.
15 Q Okay. And where was this Dictaphone during this
16 incident?
17 A It was in my pocket.
18 Q Okay. And did you at any time inform her that you were
19 going to record her?
20 A Not on this occasion.
21 Q Okay. When did you actually start recording her?
22 A I started the recording before she entered the house.
23 She called me on her cell phone before she actually came home
\ 24 1
telling me like, was ordering me to open the front door. ..-
25 Q Okay. Have you recorded her in the past?
(
j
2
A
Q
29
Many times.
Have you -- have you told her that you were going to
3 record her in the past?
4 A I'm not certain -- well, let's see. I'm certain that I
5 have told her at times in the past 1- was going to record her. I
6 can give recordings where -- I can show recordings where I hold up
7 the tape recorder and say, "You know I'm recording this."
8
9 that?
Q
A
Q
Okay. But this particular incident you did not tell her
That is correct.
Now, Mr. Flax, do you have anything -- any type of
10
11
12
13
injury to your to your head, your brain, anything like that?
A Yes. I had an acoustic neuroma, a kind of brain tumor
14 in the past during the -- either from the tumor or more likely
15 from the surgery to take the tumor out, I sustained some right
16 temporal lobe brain damage. And I do have some memory deficits.
17 Q Okay. And is that why you record things?
18
19
20
21
A
Q
A
Q
Yes. I record lots of things.
Okay.
I photograph lots of things as well for the same reason.
Okay. Now, do you actually have recording of this
22 incident, the 7/28/08 or 7/29/08 incident in front of you? Do you
23 have the audio recording?
24
25
A
Q
Yes, I do.
Would you please play that audio recording for the
c
)
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
30
Court?
MR. IGNATUCK: Objection, Your Honor, on several
grounds; improper predicate, unreasonable violation of an
expectation of privacy. This is a matter soundly within your
discretion whether to admit this or not. And I would also
request that I be permitted to voir dire the witness about
the tape itself, about the
THE COURT: You may.
MR. RAGANO: Judge, and I'm not sure if the Court wants
me to present the case law. The exception is if someone is
going to go commit an illegal act inside a residence, they do
not have an expectation of privacy. And I have the case law
to provide that.
THE COURT : You wish to voir dire?
MR. IGNATUCK: Yes, thank you.
THE COURT: Go ahead.
17 VOIR DIRE EXAMINATION
18 BY MR. IGNATUCK:
19 Q Dr. Flax, you said that you did not seek Ms. Flax-Hart's
20 permission in recording this, is that -- that's for certain; is
21 that correct?
22 A If you're referring to the night of July 29th, that i s
23 correct.
24 Q All right, sir. And you have been recording inside your
25 home for a number of years; is that a fair statement?
31
( A Yes.
2 Q When did you first start using recorders in your
3 residence?
4 A Shortly after I came home from having my brain tumor
5 operated on.
6 Q And what year was that?
7 A I think it was '94, '93 . I can't recall. Please
8 forgive me.
9 Q And how many years have you known Ms. Hart-Flax?
10 A I don't -- I don't know if we met in '97, '98 . But
11 somewhere in the neighborhood of 10 years.
12 ( '
Q So you were already us i ng a recording device prior to
\ 13 the time that you first met my client, Ms. Hart-Flax?
14 A That's correct.
15 Q And have you recorded yourself or others in your home at
16 various locations within your home since you've married
17 Ms. Hart-Flax?
18 A Yes, I have .
19 Q Would you tell would you tell the Court your date of
20 marriage to Ms. Hart -Flax?
21 A May 31st, 2003 I think.
22 Q Okay. And you've been recording in your home during
23 that entire period of time; is that a fair statement?
\ 24 )
A Well, not continuously, no.
25 Q Well, how many -- how many rooms are in your home?
I don't know. Do you want me to count them for you?
Yes, please.
32
2
3
A
Q
A There is four bedrooms, living room, dining room, family
4 room, three bathrooms in the house, the pool bathroom outside of
5 the house, a loft area.
6 Q Tell the Court since you've been married how many rooms
7 you've recorded in your home if you can specify which rooms for
8 the Court.
9
10
11
12
13
14
A
Q
A
Q
A
Q
I really don't know. Most possibly all.
Including the bathrooms?
Possibly.
Including your bedroom?
Yes.
And have you ever recorded Ms . Hart-Flax and yourself
15 having intimate relations in your bedroom?
16
17
18 it?
19
A
Q
A
Yes.
And did you tell Ms. Hart-Flax that prior to recording
Actually, there was a -- at various times a video camera
20 set up on a tripod, a 35 millimeter camera un tripods. And this
21 was not a secret. And in fact, when we reviewed some of the -- at
22 least the 35 millimeter photography, I said, "Let's get rid of
23 this because there's no reason to save things that are blatantly
24
25
pornographic."
Q My -- my question to you, sir, is have you recorded
33
( yourself and Ms . Hart-Flax having intimate sexual relations in "
2 your bedroom?
3 MR. RAGANO: Objection, Your Honor; asked and answered.
4 THE COURT: Overruled.
5 THE PETITIONER: Yes .
6 BY MR. IGNATUCK:
7 Q And during that -- during that period of time, have you
8 had audio recordings? That's what I'm referring to, not the 35
9 millimeter tripod, the audio recordings .
10 A Well, the video certainly had an audio soundtrack.
11 Q Did you tell Ms. Hart -Flax the times that you were
]2 recording her to an audio recording --
l3 MR. RAGANO: Your Honor, I'm going to object . This is
14 not relevant. It's beyond the scope of the voir dire. We're
15 trying to deal with this one incident, 7/28, 7/29, that's it.
16 MR. IGNATUCK: Your Honor, this -- this one incident is
17 a series of violations of privacy.
18 THE COURT: I think you've established that . Now,
19 you're going you've made your point that he's recorded her
20 on more than one occasion. But this is a voir dire, not a
21 cross.
22 MR. IGNATUCK: Okay. I have no other questions on my
23 voir dire, Your Honor.
) 24 THE COURT: Okay.
25 MR. RAGANO: Judge, does the Court want to hear legal
34
argument on this? Because I do have --
2 THE COURT : Well, there is an objection on the table.
3 MR. RAGANO: Yes. May I approach, Your Honor?
4 THE COURT: Uh-huh.
5 MR. RAGANO: Thank you. Your Honor, the case that I
6 have is State of Florida v. -- and I'm probably not going to
7 pronounce this right, Inciarrano I believe, somewhere around
8 those -- somewhere along there. This is a case wherein the
9 defendant and the victim, there was an audio recording. And
10 in fact what the Court held was that when someone goes into a
11 place where you have a reasonable expectation of privacy,
( ', ~ .J
12 whether it's in a home, an office and there is an audio
13 recording that the legislature did not intend to have that to
14 be a reasonable expectation of privacy.
15 THE COURT : In this case you're presenting, are we
16 talking a husband and wife?
17 MR. RAGANO: No . This is
18 THE COURT: Are we talking parties who lived in the same
19 residence?
20 MR. RAGANO: No, Your Honor. These are -- sounds like
21 business partners that went bad. That's what it sounds like
22 in this case.
23 THE COURT: Well, I don't know that this is going to be
24 on point. But if you want to make an argument
25 MR. RAGANO: Yeah. I'm asking the Court just to
35
consider this analogous to the situation where we have a
situation where the respondent comes in there clearly to
commit an act of domestic violence even though it's not
murder and that she knows that he's been recording her in the
past . He's given her notice that he's recorded her .in the
past. And she's on notice that she could be possibly
recorded, that the exception -- and I ask for the Court to
say that the exception to the rule is that when someone goes
in to commit an illegal act for which she was arrested and
for which the State Attorney's Office is prosecuting her, it
waives that expectation of privacy.
THE COURT: She's not convicted yet, so - -
MR. RAGANO: I know. But that's -- that's the argument
I'm trying to make to allow the --
THE COURT: Right. But there's a big difference in
being arrested and charged and convicted.
MR. RAGANO: I understand.
THE COURT: Response?
MR. IGNATUCK: Yes, Your Honor. I'd like to present US
v. Chabaz (ph), 724 F.2d 1536 and Carter v. State, 254 So.2d
230 . And, Your Honor, those cases basical l y again talk about
the -- the Court's discretion in whether to a dmit this tape.
This -- the case that counsel for the petitioner cited is not
at all analogous to the situation here. Your Honor, we have
here a husband and wife and a wife without knowledge being
36
( -recorded in the most intimate situations. And we don't have
2 someone who for one occasion is trying to record a crime
3 being committed. We have a husband who has repeatedly
4 violated his wife's reasonable expectation of privacy in her
5 own home for years in various rooms, now using one of these
6 recordings against her in a civil case.
7 I'm not sure whether or not there's been a federal
8 violation committed in any way by the petitioner. But I do
9 know this. I think it would be grossly unfair and -- for the
10 Court to allow this. This is an illegal recording and I -- I
11 submit in violation of -- of the law in Florida on reasonable
12 (
expectation of privacy. If someone can't walk into their own
13 home and expect that their words and actions will be held
14 private, then there would be no reason for them. There might
15 as well be a wild west and have an open range for recording
16 of people . And that's not the law in Florida.
17 And I would also point out to to the Court that
18 there's no way that this petitioner could reasonably expect
19 that my client was going to commit a crime that evening. He
20 has -- this was a consistent series of vindictive actions on
21 the part of the petitioner as I stated in my opening
22 comments.
23 THE COURT: I'll deny your request at this time to allow
\ 24 )
the v i deotape in, sustain the objection.
25 MR. IGNATUCK: Tha n k you .
37
1 THE COURT: You may continue.
2 MR. RAGANO: Thank you, Your Honor. And just -- just
3 for the record, I want to put the cite on the record, 473
4 So.2d 1272, Florida Supreme Court dealing with that . I
5 underst~nd the Court's position. But, Your Honor, also if
6 I just want to give the Court a heads up later on I'm not
7 sure if the respondent is going to testify, but if I ask her
8 whether she made these statements, · I can use that as rebuttal
9 for impeachment purposes later on.
10 THE COURT: You're asking me to make a ruling in
11 advance.
/,_ .. , 12 MR. RAGANO: No, no. I'm just -- I'm just giving the (
13 Court a heads up that I may go that direction. I don't even
14 know if she's going to testify or not, so .
15 THE COURT: Okay.
16 MR. RAGANO: Okay. All right . Let's move on.
17 DIRECT EXAMINATION CONTINUED
18 BY MR. RAGANO:
19 Q Anyway, Mr. Flax, can you tell the Court as to what did
20 she specifically say she was going to do to your daughter?
21 A What she said she was going to do to my daughter
22 excuse me. What she specifically said she was going to do to my
23 daughter was that she was going to hold her under the pool until
24 she took her last breath. She was going to bash her head against
25 the side of the pool and drown her, that she was going to -- and I
38
( think she said, "And I can do it like that", and s he snapped her
2 fingers and said, "And I can do it and have no remorse. " The tape
3 also says
4 Q Well, no, stop there. Stop there. Don't go there.
5 A Okay.
6 Q Don't go there. I'm not going to go there. But can you
7 tell the Court what was going through your mind at the time when
8 she was saying those things to you?
9 A I thought that she was going to murder my daughter and
lO possibly murder me.
11 Q Okay. All right. Let's move on in your petition, okay?
12 (
If you turn to the next page of your petition, you allege that
13 something took place on 6/15/2005. Can you tell the Court what
14 took place on that date?
15 MR. IGNATUCK: Judge, I would object as far as time and
16 space, that that is too far removed in time for the Court to
17 reasonably consider this. It's over a three year period
18 since the allegations in this case.
19 MR. RAGANO: May I respond, Your Honor?
20 THE COURT : Yes .
21 MR. RAGANO: Your Honor, 741 . 30, okay, when the Court
22 has before it the reasonable c ause test to determine whether
23 in fact that this petitioner that he's going to become a
-,
\ 24 victim of domestic violence, one of the factors that the I
25 Court can consider, and specifically factor number 10,
39
( whether the respondent has engaged in any other behavior or
2 conduct that leads the petitioner to have reasonable cause to
3 believe the he or she is in imminent danger of becoming a
4 victim of domestic violence. I would submit to the Court
5 that this falls within the purview that the Court consider
6 not only the past history of the parties, but the most recent
7 incident and anything that he would have concern to feel that
8 he's going to become a victim in the future. Albeit it's a
9 little bit remote in time, the State Attorney's Office is
10 prosecuting that because it does fall within the statute of
11 limitations. And this is a serious, serious allegation. And
12 -- it's a very serious felony. ( \
13 THE COURT: So are you telling me the charge that she's
14 facing is based upon this alleged 6/15/2005 and not what
15 occurred on the day in July?
16 MR. RAGANO: Two different, separate charges; one for
17 misdemeanor domestic violence battery and one for aggravated
18 assault with a firearm. They're going to file on both.
19 They've already filed on the misdemeanor. I think they've
20 filed on the felony as well.
21 THE COURT: Okay.
22 MR. IGNATUCK: I'm not aware of any felony charge that's
23 been filed. I'm not -- I'm not trying to say counsel is
. ', 24 i naccurate, but I'm not aware of anything .
25 THE COURT: The law does allow that -- for the Court to
40
1 consider prior acts of violence when making a determination
2 as to reasonable cause. So I'll allow the testimony. But
3 obviously he's subject to cross-examination.
4 MR. RAGANO: Thank you, Your Honor.
5 BY MR. RAGANO:
6 Q Mr. Flax, can you tell the Court briefly again, just get
7 sort of the to the meat of the matter what took place on 6/15/05?
8 A First, that is an approximate date. I'm not exactly
9 certain what the date was. But my wife had been drinking and
10 driving. Drinking and driving is something that I find incredibly
11 upsetting and dangerous. And--
12 ~
MR. IGNATUCK: Judge, I would object to this type of (
13 narrative and opinions elicited by the petitioner.
14 THE COURT: I'll sustain the objection. Sir, just tell
15 what happened. Your opinion about it at this point is not
16 relevant. Just tell what happened.
17 THE PETITIONER: Okay. Without regards to what the
18 argument consisted of, there was a verbal argument . My wife
19 said she wasn't going to put up with my bullshit any longer.
20 She walked from my office loft in the house to the bedroom
21 and came back with her .38 caliber revolver. She loaded the
22 gun as she was walking the approximately 20 feet towards me.
23 And she pointed the loaded gun at me and screamed that she
) 24 was going to kill me.
25 BY MR. RAGANO:
( 2
3
4
5
6
7
8
9
10
11
12 C- --
13
14
15
16
17
18
19
20
21
22
23
24
25
Q How do you know the gun was loaded?
A I saw her load the gun. And I took the gun away from
her, and I emptied the gun. And it was loaded.
Q When you say she pointed the gun at you, how far away
was she?
A By the time she pointed the gun at me -- I guess she was
pointing it at me or towards me while she walked. But by the time
the gun was loaded, she was just two or three feet away from me.
And when I went to take the gun from her, we were touching at that
point.
Q Okay. What was going through your -- your mind at that
time?
A I thought I was going to die.
Q Did she make any threats?
A She said she was going to kill me, that she was going to
shoot me . She made lots of threats .
Q Did you in any way initiate this? Did you push her,
shove her, anything to start this?
A I did not touch her. We were having a verbal
disagreement .
Q Okay. How did you remove the firearm from her?
A I -- I took her wrist and I -- I -- I grabbed her by the
wrists and I twisted her arm. And the handgun fell from her arm.
Q Did you call the police?
A I should have. I was crazy not to. I was in denial.
41
42
( ' Q Okay. Have you contacted the State Attorneys regarding
2 this?
3 A Yes, I have .
4 Q Do you know whether they're going to prosecute her?
5 A They told me they --
6 MR. IGNATUCK: Objection; hearsay.
7 THE COURT : Sustained.
8 MR. RAGANO: Okay.
9 THE PETITIONER: I've got the letter.
10 THE COURT : That means you --
11 MR. RAGANO: No, no.
]2 THE COURT: - - don't answer. (
13 BY MR. RAGANO:
14 Q Don't say anything.
15 A Sorry.
16 Q Don't say anything on that. Any witnesses?
17 A There were no witnesses.
18 Q Okay. You also allege in your petition that there was
19 an incident where you were in the shower. And I think it's on
20 page five of seven on your petition.
21 A Yes.
22 Q Can you tell the Court what happened when you were in
23 the shower?
'''', 24 \ A Yes. That section refers to two separate occasions; one
25 in January of '08, the other I believe was March of '08. I was
\ r /
)
43
showering naked as I usually am when I shower. And my wife was
2 drunk and angry and shouting at me and came to the shower, the
3 glass shower door and repeatedly slammed the glass shower door as
4 hard as she could with the apparent intent to get it to shatter on
5 me.
6 Q And where were you during this entire time?
7 A I was in the shower.
8 Q And what were you doing?
9 A Well, I was getting as far away from the glass door as I
10 could. On the on the first occasion, I stepped out of the
11 shower and got her to stop. On the second occasion I just got as
12 far away from the door as I could. I covered my face and I turned
13 my back to the glass door expecting it to shatter at any moment.
14 Q And what was going through your mind at that time?
15 A I thought I was about to wind up being cut seriously,
16 wind up in the hospital and God knows what else.
17 Q What happened to the shower door?
18 A On the second occasion, the shower door fell off the
19 hinges.
20 Q Okay. All right. I want to show you what's been
21 premarked as Petitioner's Number 2 and ask -- and ask if you can
22 identify that, Mr. Flax.
23 A Thank you. This is the photograph that I took of our
24 shower in the master bedroom with the shower door being off the
25 hinges.
( ..
)
-)
Q Okay. And does that picture fairly and accurately show
2 the shower door as it appeared on that particular date?
3 A Well, when it fell off, it fell to the ground. And I
4 needed to move it in order to be able to step out of the shower
5 and be able to walk around the bathroom.
6
7
Q
A
Okay.
So I took the shower door and propped it up the way you
8 see it.
9
10
11
12
13
14
MR. RAGANO: Okay. I'd move to admit Petitioner's
Number 2, Your Honor.
MR. IGNATUCK: No objection, Your Honor.
THE COURT: It' l l be received.
(Petitioner's Exhibit Number 2 received into evidence.)
MR. RAGANO: Thank you, Your Honor.
15 BY MR. RAGANO:
44
16 Q Now, Mr. Flax, you also allege in your petition that you
17 have been the victim of physical violence for many years during
18 the marriage.
19
20
A
Q
About four years.
Okay. Has your wife ever committed an act of battery on
21 you previously?
22
23
24
25
A
Q
On numerous occasions.
Okay. And as a result of that, have you ever sustained
any type of injuries?
A On many occasions I sustained in j uries.
45
/ Q Can you tell the Court what type of injuries have you
2 sustained?
3 MR. IGNATUCK: Judge, I would object again on improper
4 predicate and too far remote in time. There's been no time,
5 date, or place established. And it's not even alleged in the
6 petition any specific incidences other than what the witness
7 has previously testified to. We have no way of knowing what
8 he's talking about as far as time and place.
9 THE COURT: I'll sustain, improper predicate.
10 MR. RAGANO: Your Honor -- okay.
11 BY MR. RAGANO:
12 Q Mr. Flax, in your petition you allege here that there ,
( ) 13 are certain dates where your -- the respondent committed acts of
14 domestic violence between 5/31/03 until 7/29/08. Other than the
15 7/29/08 incident, can you tell the Court when was the most recent
16 act of domestic violence that your wife committed on you?
17 A The most -- well, actually, there are numerous. The
18 most recent where she drew blood and left scars was the Saturday
19 before Memorial Day. I'd have to look at my calendar to tell you
20 specifically what that date was.
21 Q What year was that?
22 A This year, May of this year.
23 Q Okay. And can you tell the Court what happened on that
) 24 particular date?
25 A There was an argument about her drinking, as most of our
)
)
arguments are. And at that point she took her f ingernails as she
2 usually does and grabbed my arm and my leg. In this case I was
3 lucky i t was not my genitalia . And she broke the skin in two
4 places. And you can see the scars right now if you'd care to
5 look.
6
7
8
9
10
11
Q
A
Q
A
Q
A
Okay. How did she - - how did she cause those injuries?
With her fingernails.
Did you call the police?
No, I did not.
Did you seek any type of medical attention?
I -- I just cleaned the wounds and took care of them as
12 I usually do.
13 Q Okay. I want to show you what's been premarked as
14 Composite Exhibit Petitioner's Number 1 and ask if you can
15 identify those photographs.
16
17
18
A
Q
A
Yes, I can.
And what are those photographs?
These are pictures that I took of myself while standing
19 in our bathroom.
46
20
21
22
23
24
25
MR. IGNATUCK: Excuse me. Your Honor, I would -- I
would object to the photos being published at this time. And
I would object to these photographs as being not connected to
any of the incidents alleged in the in the petition.
MR. RAGANO: Your Honor, I;m trying to lay the
predicate. And there's no l egal grounds for his objection .
47
I'm trying to lay the predicate .
2 THE COURT: Well, there is a legal ground because you're
3 basically publishing them before they've been admitted.
4 MR. RAGANO: If I may, Your Honor.
5 THE COURT: Yes.
6 BY MR. RAGANO:
7 Q Mr. Flax, can you tell the Court who took those
8 pictures?
9 A I took those pictures.
10 Q Okay. And can you tell the Court what are those
11 pictures of?
12 are pictures of relatively fresh wounds given to A These
) 13 me by my wife .
14 Q Okay. And are those the pictures that you just
15 testified about where she put her nails into your arms and your
16 skin?
17 A What I just testified about was about an incident that
18 occurred in May of this year. These occurred probably on three
19 separate incidents about a year ago.
20 MR. IGNATUCK: Judge, I would object to this evidence as
21 being again remote, improper predicate, immaterial because of
22 the prejudicial value versus the probative value, and ask
23 that the Court disregard these photos and ask that they be
) 24 stricken from the record.
25 THE COURT: Response?
)
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MR. RAGANO: Your Honor, I can go into each different
incident. Unfortunately they're not date or time coded.
THE COURT: That's my question.
MR. RAGANO: And they show only portions of his body.
48
So they're not exactly the best pictures. I agree with that.
Unfortunately that's all we have at this point in time. I
mean, I can go through each step or picture and say, "What is
the date if you can recall, who took it, does this fairly and
accurately represent how it was viewed", and just do each one
of those. If the Court doesn't want me to do that, I
understand. But, you know, these are not the best pictures,
Your Honor. I agree. But that's all we have.
THE COURT: The date and time is the okay. Here we
are in August of 2008. And the testimony is that these
pictures are from a year ago. So, I mean, when were they
taken, where have they been for the last year?
MR. RAGANO: Yes, Your Honor.
THE COURT: So the objection to predicate I think is
quite relevant.
MR. RAGANO: Yes. And if -- if the Court wants me to do
that for each picture, I can. But again, they're just not
the best pictures for time code, date purposes.
THE COURT : It's not really a question of what I want
you to do. It's what's legally permissible.
MR. RAGANO: Uh-huh. Okay. Will the Court allow me to
(-
)
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ask for each -- each partiGular photograph and say, "What is
the date if you can recall?"
THE COURT: Unless he stipulates that there is no
objection to the photo, then that's what's required for the
predicate.
MR. RAGANO: I don't think he's going to stipulate to
it.
49
THE COURT: Okay. If you all will just remain and stand
right over here. I can't do that.
UNIDENTIFIED SPEAKER: Yeah. That's what I was going to
get at.
THE COURT: Disregard that. We'll continue.
MR. RAGANO: Okay. Okay. So I assume the Court is
sustaining the objection at this point, Your Honor?
THE COURT : At this point I am sustaining the objection.
MR. RAGANO: Okay.
17 BY MR. RAGANO:
18 Q Mr. Flax, the very first photograph that you have in
19 front of you --
20
21
A
Q
Yes.
-- do you have any idea what the date was on that
22 particular photograph?
23
24
25
A I cannot recall exactly the date. It is from
approximately one year ago.
Q Do you know the date as far as the month one year ago?
(
)
I -- no, though I can obtain it.
2
A
Q Okay. Any of t hose pho tographs in Composite
3 Petitioner's Number 1, do you know for certain any of the dates
4 associated with any of those pictures?
5 A Mr. Ragano, I have a memory problem. I cannot recall
6 the specific dates without looking on the computer file which
7 records the specific dates.
8
9
10
Q
A
Q
Okay.
The dates are available.
All right. But your testimony earlier was that your
11 wife had inflicted injuries on various parts of your body? And
12 you showed the Court your arm.
Yes.
Can you
She has done so on numerous occasions.
50
13
14
15
16
A
Q
A
Q When did she you said there was some type of scarring
17 on your arm. When did that occur?
18
19
20
21
22
A That was the Saturday before Memorial Day. That was May
of this year. If you would like, I can pull out my calendar --
Q
A
Q
No, no. That's fine.
-- and give you the specific Saturday date.
Okay. Tell the Court what happened as far as the -- how
23 did you get that injury on your right arm?
24 A My -- my wife came home drunk once again, drinking and
25 driving. She fell asleep on the stairs of which I think you will
)
2
3
have pictures -- well, I have pictures somewhere .
Q
A
Well, just get just tell the Court what happened.
And I pointed out to her again not being happy with her
51
4 that she was drinking and driving again. And she was angry with
5 me. And she grabbed -- she shoved me, she kicked me, she smacked
6 me, and she put her nails into my right forearm drawing blood.
7
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MR. RAGANO: Okay. And if I may, Your Honor, can he
please publish his arm to the Court and to opposing counsel?
THE COURT: Yes.
MR. IGNATUCK: Judge, I would object to this line of
questioning and the publication of any type of alleged
injuries as being again too far remote, not relevant or
material to this case, and again not alleged specifically in
the petition. And, I mean, besides being overkill, it's just
not legally sufficient I submit for it to be considered by
the Court.
MR. RAGANO: Judge, it's
THE COURT: I overrule. And he's subject to
cross-examination.
MR. RAGANO: Okay.
21 BY MR. RAGANO:
22 Q If you may, show -- if you could, please stand up and
23 show the Court, Mr. Flax.
24 A There are two marks. These are the scars sustained. So
25 that would be two-and-a-half months old, two months old.
(
)
)
2
3
4
5
Q
A
Q
A
Q
Okay.
But that's what the healing wounds look like.
I appreciate it.
I have numerous scars over my arms and legs.
Okay. Thank you, Mr. Flax. Part of your petition, you
6 are asking the Court to order the respondent into some type of
7 treatment intervention counseling services. Can you tell the
8 Court, what are you asking regarding that?
9 A My wife has a problem with violence, with anger, and
10 with substance abuse . So anything that the Court can do to help
11 her with her violence and her anger and her substance abuse
12
13
would -- would benefit her and everyone around her.
Q You also are asking the Court to allow you to have
14 temporary exclusive use and possession of the residence that we
15 discussed earlier in Apollo Beach?
16
17
A
Q
Yes, I am.
And can you tell the Court why are you asking for the
18 temporary exclusive use and possession of that?
A Yes . The house is mine. It was mine before we got
married. It's exclusively in my name. The mortgage is in my
52
19
20
21 name. I have children that well, I have a 14 year old daughter
22 that I have visitation with in that house on a regular basis. My
23 son who's in college visits me in that home on a regular basis. I
24
25
have no alternative place to live .
Q And opposing counsel mentioned something along the lines
/ )
53
of you having a condo or something like that. Do you own a condo?
2
3
A
Q
I do not.
Okay. Can you te l l the Court -- if the Court was not to
4 enter a final judgment for protection against domestic violence
5 today, what concerns would you have?
6 A I am very concerned that my wife, given the opportunity
7 particularly if she's intoxicated as she often gets to be, that
8 she will in fact murder me. I'm not sure when. But given the
9 opportunity, it'll be with a car or with a knife or with a gun.
10 She will murder me and murder my daughter.
II
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Q
A
Anything else you want to tell the Court?
Not at this time.
MR. RAGANO: I'll pass the witness at this time.
THE COURT: Okay. Before you do that, I'm sorry, I'm
going to have to temporarily recess and bring in the other
two parties outside because their hearing will take five
minutes .
MR. RAGANO:
table?
THE COURT:
Do you want us to remove our items from the
I think it'll be okay.
THE BAILIFF: No. I'll put them on the end.
MR. RAGANO: Okay. Thank you, Your Honor.
THE COURT: Thank you all .
(The case was passed and recalled the same day.)
THE COURT: Sir, if you'll take the stand. You are
54
/ . ' :' ( still under oath. ...
2 Counsel, do you wish to cross?
3 MR. IGNATUCK: Yes, Your Honor.
4 THE COURT: You may.
5 CROSS-EXAMINATION
6 BY MR. IGNATUCK:
7 Q Sir, you're a physician; is that correct?
8 A Yes, I am.
9 Q Are you an MD?
10 A Yes.
11 Q And are you presently on disability?
12 A Yes, I am.
) 13 Q And when were you declared disabled?
14 A I believe in 1994.
15 Q And tell the Court how much disability income you
16 receive every month.
17 MR. RAGANO: Objection; relevancy, Your Honor .
18 THE COURT: Relevance?
19 MR. IGNATUCK: Your Honor, the Court has to consider I
20 think all of the factors in whether or not to issue an
21 injunction in this case.
22 THE COURT: How much income is not relevant to as to
23 whether or not to issue an injunction. It only becomes
\ ) 24 relevant if I grant the injunction.
25 MR. IGNATUCK: Yes, Your Honor. Thank you, Your Honor.
(
)
)
55
BY MR. IGNATUCK:
2
3
Q You testified in your initial petition that you left for
work at 7 a.m.; is t hat do you recall wri ting t hat down -- or
4 excuse me, typing it?
Yes.
You left it what type of work do you do?
5
6
7
A
Q
A I volunteer at a clinic that provides free medical care
8 to people that don't have health insurance and can't afford to go
9 to doctors.
10 Q So you do more or less apply your trade on a volunteer
11 basis?
12
13
A
Q
I take care of people who can't afford to pay.
Uh-huh. And you filed for dissolution of marriage in
14 early June of this year, correct?
15 A Yes.
16 Q And shortly thereafter you became upset, did you not,
17 when you you determined that your wife had engaged an attorney
18 named Brett Rahall to represent her in the dissolution of marriage
19 action?
20 A I -- I believe I became upset when my wife decided to
21 sue me for alimony which was a violation of a marital agreement
22 that she made to never sue me for a limony.
23
24
25
Q So that -- that upset you, the alimony claim, not
getting the attorney?
A It did not make me happy. That's correct.
)
)
2 16th?
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Q Do you recall writing a letter to Mr. Rahall on June
MR. IGNATUCK: May I approach, Your Honor?
MR. RAGANO: Your Honor, I'm going to object to
se ttlement negotiations as part of the chapter 61 case.
THE COURT: Your respons e? I haven't seen it. That's
why I'm waiting on him to respond.
MR. IGNATUCK: I was going to just use the letter as
I wasn't going to introduce the letter or talk about the
settlement discussions. I wanted to talk about portions of
the letter that did not pertain to settlement discussions
to
THE COURT: Okay. Have you seen that?
MR. RAGANO: No, I have not seen it because he was pro
se at the point
THE COURT: Okay.
MR. RAGANO: -- at that point in time.
THE COURT : So you can see that. And, sir you can --
that's fine .
MR. IGNATUCK: It wasn't for publication to the Court.
THE COURT : Yeah. Okay. Okay. Sir, you can review
that. And obviously, Mr. Ragano, if you find a question
objectionable, you object.
MR. RAGANO: Thank you, Your Honor.
56
THE COURT : Okay. Now, sir, you can go ahead and have a
/ (
)
57
chance to review that.
2 THE PETITIONER: Thank you.
3 BY MR. IGNATUCK:
4 Q Sir, in paragraph two of your letter dated June 16th,
5 2008 to Mr. Rahall, do you not say in that paragraph, "However, it
6 has been my experience that lawyers tend to increase the level of
7 hostility throughout divorce proceedings"?
8
9
A
Q
Yes.
And sir, would you read paragraph three to the Court?
10 And I -- and I would preface that by submitt ing that I don't
11 believe it has anything to do with settlement discussion.
12
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MR. RAGANO: Your Honor, I'm going to object on grounds
of relevancy and settlement negotiations. It sounds like
he's trying to settle this case through Mr. Rahall.
MR. IGNATUCK: No, Your Honor. I am not trying to get
into any settlement discussions that were -- any settlement
discussions between this petitioner and Mr. Rahall . The
paragraph doesn't refer to that. It refers to the
petitioner's state of mind and his motive in this entire
proceeding. That's the --
THE COURT : Have you had a chance to look at paragraph
three?
MR. RAGANO: Yes, Your Honor .
THE COURT: Does it contain settlement negot i ations?
MR. RAGANO: It sounds like he's trying to avoid going
/
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forward with l i tigation.
THE COURT : Is it a proposal of some type?
MR. RAGANO: It's pretty vague.
THE COURT: Okay. Well, I'll overrule the objection at
this time.
MR. RAGANO: All right.
THE COURT: He can read it.
THE PETITIONER: This is not a complete copy.
THE COURT: It's not a complete copy. Well, the letter
isn't being admitted.
THE PETITIONER: Right. But he's asking -- forgive me.
THE COURT: He's just asking for paragraph three. Do
you see paragraph three?
THE PETITIONER: There's a paragraph number three. But
part of that paragraph is missing.
MR. IGNATUCK: Just the first portion of the paragraph
before there's a space.
MR. RAGANO: Your Honor, I'm going to object on grounds
of best evidence. If he's -- if this is not authentic
THE COURT: It's not being admitted though.
MR. RAGANO: Okay.
58
THE COURT: So that's what I was explaining to him. Why
don't you just ask your question? He's had a chance to read
it. Why don't you ask your question with reference to it?
25 BY MR. IGNATUCK:
/
)
)
Q Sir, do you -- do you indicate in your letter in that
2 paragraph that you love your wife and you love her no less today
3 than when you proposed to her? On June 16th, 2008 did you make
4 that statement?
5
6
7
A
Q
A
I did.
That's not a true statement, is it?
It was on the date that I wrote this.
8 Q And you also indicated on June 16th that you have no
9 desire to harm your wife. Is that -- was that the way that you
10 felt on that date?
A
Q
Yes . I have no desire to harm her today either.
Okay. Do you think the issuance of a domestic violence
injunction will cause your wife harm?
MR. RAGANO: Objection as to speculation. Calls for a
legal conclusion as well .
THE COURT: And relevance .
59
11
12
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14
15
16
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21
22
23
24
25
MR. IGNATUCK: The relevance is the motive of this
petition, Your Honor, in filing this injunction when there is
a divorce proceeding pending.
THE COURT: Well, that's the question you need to ask.
What you asked him is whether or not filing this injunction
will cause her harm. That's not relevant. The relevancy is
whether the facts alleged in the petition are true. But now
if your question is whether he wishes to cause her harm, you
can ask that question.
~)
( )
MR. IGNATUCK: Okay.
2 BY MR. IGNATUCK:
3 Q Is your intent in going forward with this injunction to
4 cause your wife harm?
5
6
A
Q
No, it is not.
And is and was it your intent to cause her harm when
7 you had a copy of this petition and an audio tape sent to the
8 state attorney for purposes for prosecuting your wife?
9
10
A
Q
It was not my intent to cause her harm.
Do you think that a criminal charge against your wife
11 will cause her harm?
12
13
14
15
MR. RAGANO: Objection as to legal conclusion,
relevancy, and speculation, Your Honor.
THE COURT: I sustained as to relevance.
MR. RAGANO: Thank you, Your Honor.
16 BY MR. IGNATUCK:
17 Q So you're also trying to have your wife prosecuted for
60
18 an event that occurred in 2005, the event that you allege that she
19 pointed a gun at you?
20
21
A
Q
She tried to murder me .
r see . And is that the event that you're trying to
22 prosecute her now in August 2008?
23
24
25
A I I'll do whatever I can to protect my daughter and
myself from my wi fe harming us, which I think she will do.
Q And in 2005 when you felt that she was attempting to
61
, i j. murder you, you didn't call the police, did you?
2 A I was ashamed.
3 Q Did you call the police that evening that you say this
4 incident occurred?
5 A I did not.
6 Q And did you seek the issuance of a domestic violence
7 injunction back in June of 2005 when you say this occurred?
8 A No. We went to counseling instead. I thought that
9 could fix the problem.
10 Q I see. And the shower door that you talked about, is it
11 not 22 years old?
12 A I really don't know how old the shower door is.
13 Q How old is the home that you live in?
14 A The home was built in 1990.
15 Q 1990?
16 A Yes.
17 Q Now, prior to the -- this incident -- this incident
18 occurred on a Tuesday; is that your recollection?
19 A You're referring to July 29th?
20 Q Yes, sir.
21 A Yes. I believe that was a Tuesday.
22 Q All right. And the weekend before, did you not try to
23 reconcile your dissolution of marriage with your wife?
) 24 MR. RAGANO: Objection; settlement negotiations, Your
25 Honor.
62
/ THE COURT: Overruled.
2 THE PETITIONER: My wife had told me that she was
3 contacting her divorce attorney, Mr. Rahall, to notify him
4 that she was going to honor our marital agreement, our
5 postnuptial agreement that she was never going to seek
6 alimony. So we had -- and she was -- she had requested that
7 we put our divorce proceedings on hold for 90 days so that
8 she could show me that she was going to be the woman I
9 thought I married, someone who didn't drink and who was not
10 violent.
11 BY MR. IGNATUCK:
12 Q So I -- I presume then by your answer that you did not
13 really try to reconcile your marriage with your wife that weekend
14 preceding?
15 A I'm not quite sure how to answer that because I thought
16 that I that she had agreed to honor our postnuptial agreement
17 in exchange for 90 days of putting off divorce proceedings and
18 that she was going to finally stop drinking and stop being violent
19 and stop being anti-Semitic and stop all the other stuff that she
20 had been doing, so that -- maybe reconciliation. But it certainly
21 seemed like a positive step at the time.
22 Q I see . And in your case you -- you actually -- and
23 without getting into any of the details of it, you sent an email
) 24 to your wife on July 25th, did you not, on Friday in the
25 afternoon?
A I'm not certain. Can I see what you're referring to?
Q Well, I don't want to get into it because it involves
some settlement discussions. But I'm just asking you if you
recall sending her an email.
A We communicated through email, verbally, letters .
not certain without looking at the document, but we may have
communicated.
Q Would it be --
I'm
A I may have communicated on the 25th. I'm not certain
without looking at it.
Q Would it be fair to say that you and your wife had an
63
enjoyable weekend the weekend of Friday, July 25th through the end
of Sunday, July 27th without any arguments, domestic violence, or
any heated discussions?
A I believe that to be true.
Q And would it also be fair to say that you received a
communication from your wife's attorney on Monday, the 28th of
July, that caused you great consternation, if not anger?
A I believe I received on Monday an email from her
attorney saying that -- let's see, that they were going to make no
statement with regards to the postnuptial agreement, that it
wasn't necessary to do so. I brought it to my wife's attention
that that's not what she told me, that she said _she was going to
instruct her attorney to honor the postnuptial agreement . She
said no, she only w~s going to bring it to her attorney's
64
attention to get his advice on the subject. And generally there
2 was a feeling on both sides that -- there was disagreement on what
3 had been said on Thursday and Friday.
4 Q It seems to me, Mr. Flax, that your main concern here
5 was whether or not was going to honor a postnuptial agreement as
6 opposed to reconciling with her; is that a fair statement?
7 A I don't know.
8 Q Now, on Monday would it be fair to say that your tone
9 and demeanor changed toward your wife and that you became verbally
10 abusive to her?
11 A I don't think I've ever been abusive to my wife .
12 Q Did you demand that she fire her dissolution of marriage
13 attorney?
14 A I don't recall .
15 Q Did you also tell her on Monday, July 28th that you
16 wanted her out of the home?
17 A I I don't recall. I can recall saying that --
18 that and I don't recall when this happened, but that my -- we
19 need to sell the house since we no longer can afford it. My wife
20 will not allow the sale of the house and that it would be
21 difficult to imagine getting the house ready to market and sell
22 while she's living inside of it trying to prevent its sale.
23 Q So you at least encouraged her to move out of the home
) 24 the day before this incident happened?
25 A I do not recall.
65
(' Q Did you also tell her that you didn't want her back home
2 for dinner on Tuesday, the 29th?
3 A I don't recall.
4 Q Did you tell her to dine outside of the home that
5 evening?
6 A I don't know.
7 Q Now, the day of this incident, the 29th of July, you're
8 aware that your wife took her father to Lakeland for some tests?
9 A I was not made aware of that until after she returned
10 home that night.
11 Q Well, what did you think she was doing that day?
12 A I had no idea. \
) 13 Q Did you call during that day or inquire about her
14 father's condition or about her condition that day?
15 MR. RAGANO: Objection; relevancy.
16 THE COURT: Response?
17 MR. IGNATUCK: Your Honor, again, it goes to this --
18 this petitioner's state of mind. And now we're getting to
19 the day of the incident .
20 THE COURT: Overruled at this time.
21 THE PETITIONER: I -- I didn't call her. She didn't
22 call me.
23 BY MR. IGNATUCK:
) 24 Q And when your wi fe came home that evening, you again
25 mentioned to her -- and I'm going to quote you, quote, "You are
66
/ " ( " suing me for alimony", close quotes. You told her that, did you
2 not on the 29th?
3 A When she told me that she was upset with me for not
4 calling her, I pointed out to her that we are in the midst of a
5 divorce, you are ~uing me for alimony, that it would not be a
6 reasonable expectation that we call each other regularly to see if
7 we're having a nice day, something along those lines.
8 Q I see . Is -- do you consider it a reasonable
9 expectation when someone's in their home that they won't be
10 videotaped or audio taped without their knowledge or approval?
1 1 A My wife saw the videotapes. She saw the cameras. She
12 knew about the recordings.
) 13 Q I asked -- I asked you if you thought it was a
14 reasonable expectation if someone were to live in their home
15 without knowledge of being recorded, would you consider that to be
16 a reasonable expectation?
17 MR. RAGANO: Objection; calls for a legal conclusion.
18 THE COURT: Sustained.
19 BY MR. IGNATUCK:
20 Q You indicated I think in your petition that you have a
21 long term balance problem following your brain surgery.
22 A Yes, that's correct.
23 Q And yet you say your wife hit you or pushed you
) 24 forcefully I think in your petition you said at least 50 times
25 over a 30 minute period of time?
)
)
2
3
4
5
6
7
8
9
the
A
Q
A
Q
A
bed.
Q
A
Q
Yes, that's correct.
Did you ever lose your balance on any of these pushes?
Yes.
Did you fall to the ground?
I grabbed furniture. I grabbed the wall. I fell onto
I -- I take it then you did not fall to the ground?
No, not this time.
And you said you were that she was pushing you
10 actually from the living room into a guest room; is that true?
11
12
13
14
A
Q
A
Q
Yes.
Where was your daughter during this period of time?
She was watching TV in the family room.
And where is the how is the family room connected to
15 either the living room or the guest room?
67
16 A It's just around the corner through an opening. There's
17 no door. So it's -- it's just around the corner. My -- my
18 daughter was afraid and trying to stay away from the trouble.
19 Q Yes. But you testified earlier on direct that she
20 witnessed this or heard this .
21 A She heard this. She heard her stepmother threatening to
22 murder her.
23
24
25
Q
A
Q
She did hear that?
She did hear that.
Okay. And that would be contained within her -- her
68
written statement that was attached to your petition?
2 A I did not prompt her written statement. That's what she
3 wrote. And later she said
4 MR. IGNATUCK: Objection; hearsay.
5 MR. RAGANO: Your Honor, he's opened up the door on
6 that .
7 MR. IGNATUCK: No. I asked -- I've asked about the
8 written statement only that was attached.
9 THE COURT: He asked about the statement. Sir, you can
10 answer the question with reference to the statement.
11 THE PETITIONER: Can I hear the question again please?
12 MR. IGNATUCK: I don't -- I don't recall the question.
) 13 I'm sorry.
14 THE COURT: Okay. You withdraw it then.
15 MR. IGNATUCK: Well--
16 THE COURT: He can't answer it if you can't tell him
17 what it is.
18 BY MR. IGNATUCK:
19 Q Let me -- let me ask you this, sir. You say your
20 daughter witnessed and heard what your wife was doing?
21 A Yes .
22 Q Okay. Now, you have this injunction, this temporary
23 injunction issued on July 30th; is that correct?
.) 24 A Yes, that's correct I believe.
25 Q And is it fair to say that there are -- there are 31
)
)
days in July if you know?
2 A I think so.
3 Q Well, on August 1st, two days after this injunction was
4 issue, did you not call your wife on her cell phone?
5 A I don't recall. I didn't -- I didn't speak to her.
6 Q I'm not asking if you spoke to her. I'm asking you if
7 you dialed her cellular phone number in order to speak with her.
8
9
A
Q
I don't recall. It was a confusing and upsetting time.
Did you leave a voice mail message on her cell phone
10 asking her where she was?
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phone?
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A
I don't recall. I may have.
Do you recall subsequently cancelling your wife's cell
Yes.
When did you cancel the cell phone?
I don't remember.
MR. RAGANO: Objection to relevancy.
THE COURT: What's the relevancy?
MR. IGNATUCK: The relevancy is whether or not this
person is in fear of imminent bodily harm and and --
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THE COURT: Cancelling a cell phone goes to that how?
MR. IGNATUCK: Cancelling the cell phone would certainly
be able to cause the message to be erased that he doesn't
recall now.
THE COURT: But how does that go to fear?
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MR. IGNATUCK: It goes to -- it impeaches his
credibility because he said that he doesn't recall whether he
sent her a message, but he cancelled her cell phone.
THE COURT: I'll sustain the objection.
MR. IGNATUCK: Yes, Your Honor.
MR. RAGANO: Thank you, Your Honor.
7 BY MR. IGNATUCK:
8 Q Mr. Flax, did you also send an email to your wife on
9 August 1st?
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I -- I don't recall.
Do you recall sending an email to her father, Norman
Hart, on August 1st?
A I sent an email to her father at some point, but I don't
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Q Was it after the issuance of the injunction?
A I -- can I see the copy of the email if you have it?
MR. RAGANO: Your Honor, I'm going to object to hearsay.
Also it's dated 6/30/07 . It's not relevant.
MR. IGNATUCK: Your Honor, I would like to -- he wanted
to see the email. I was going to show it to him, and maybe
that will refresh his recollection.
THE COURT: Why is it relevant from '07?
MR. IGNATUCK: It's our position that he resent an email
that he had sent earlier in '07. He sent the same email to
three parties on August 1st after the issuance of this
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injunction, including my client.
THE COURT: And why is it relevant?
MR. IGNATUCK: Again, it goes to his alleged fear of
imminent bodily harm.
THE COURT: Does it have something to do with that in
there or just the fact that he sent her an email?
MR. IGNATUCK: Just the fact that he sent her an email.
THE COURT: It's not relevant.
MR. IGNATUCK: Okay.
MR. RAGANO: Thank you, Your Honor.
MR. IGNATUCK: Thank you.
12 BY MR. IGNATUCK:
13 Q Sir, did you find out three days later on August 4th
14 that your wife was in the emergency room of Tampa General
15 Hospi tal?
16 A At some point after July well, 29th I found out that
17 she was in Tampa General Hospital. I don't recall the date.
18 Q It was it was definitely after this injunction was
19 issued, was it not?
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Q
That's correct.
And how did you determine that she was in the emergency
22 room with Tampa General Hospital?
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I received a phone call notifying me of that .
From who?
From a neighbor.
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Q Did -- did you appear in the emergency room that day to
2 talk to your wife in person?
3 A At the instruction of the sheriff's department of
4 Hillsborough County, I went to the emergency room to verify that
5 she was there and then contacted Tampa Police Department.
6 Q So your intent on visiting her in the hospital was to
7 determine that indeed it was your wife that was in your hospital?
8 It wasn't for any concern for her health or safety?
MR. RAGANO: Your Honor, I'm going to object. It's a
misstatement of facts. He testified that he was just
verifying, not visiting.
THE COURT: Relevance?
MR. IGNATUCK: Again, Your Honor, the relevance is
the -- whether this injunction should remain in effect,
whether or not this person has a fear of imminent bodily
harm.
THE COURT: So are you taking the position that if one
goes to the hospital to check on the health of their spouse
they're not concerned about --
MR. IGNATUCK: Well, Your Honor --
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THE COURT: They can't be afraid of them because they go
to the hospital to check on them?
MR. IGNATUCK: He -- his testimony, Your Honor, is that
he went to the hospital to verify that she was there.
THE COURT: Right.
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MR. IGNATUCK: Well, I think -- I think it's relevant to
2 whether or not he's afraid of her.
3 THE COURT : I disagree. Overruled.
4 MR. RAGANO: Thank you, Your Honor.
5 MR. IGNATUCK: Well
6 THE COURT: You can be afraid and still concerned.
7 MR. IGNATUCK: Okay.
8 BY MR. IGNATUCK:
9 Q Did did you go into the emergency room where
10 Ms. Hart-Flax was actually being treated?
11 A Yes . I went to the desk to ask if she was there, and
12 they said, "Follow me, " so I did.
) 13 Q And did you also advise Ms. Hart-Flax that the insurance
14 company had called you and notified you that she was in the
15 hospi tal?
16 A I did.
17 Q That was a lie, wasn't it?
18 A It was a lie. I thought I might be protecting someone
19 from her when I said it.
20 Q And did you also during that conversation with
21 Ms. Hart-Flax tell her that it would have been nice if she had
22 called you?
23 A I don't recall.
) 24 Q Did you tell her that she didn't even care about her
25 dog?
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A I don't think so.
Q She does have a dog in your house, right, named Abigail?
MR. RAGANO: Objection; relevancy.
THE COURT: Relevance?
MR. IGNATUCK: Well, I'll - - I was going to tie it in
later with the -- with the trip that my client took to
retrieve her belongings, including her animal.
THE PETITIONER: We have a dog.
THE COURT: Excuse me.
THE PETITIONER: I'm sorry.
THE COURT : That doesn't go to the issue before the
Court today which is the act or threat of physical bodily
harm or injury that he has alleged prior to the filing of the
petition. What happened subsequent to that is an issue of
contempt perhaps, but --
MR. IGNATUCK: Okay.
17 BY MR. IGNATUCK:
18 Q Well, sir sir, did you -- did you tell -- did you
19 tell your wife while she was in the emergency room that she hadn't
20 called to even check on her dog?
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Q
I don't recall saying that.
Were you trying to goad her into violating a domestic
23 violence injunction?
24 A No. There was no domestic violence injunction at that
25 time. I was told that's the reason why I needed to go there, to
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, r- get her served because until it was served it was not enforced.
2 Q And that's exactly what you did subsequently that same
3 day? You had the police arrive at the hospital room, in the
4 emergency room and serve her a copy of this injunction?
5 A It was unfortunate . I tried communicating with
6 Mr. Rahall, her divorce attorney, over a five day period I
7 believe . And he ignored all of my phone calls, correspondence,
8 faxes, and emails.
9 Q And do you recall Ms . Hart-Flax appearing at your
10 residence in a vehicle with her father to try to retrieve her
11 belongings on August 16th?
12 A I don't recall the date, but I do recall her corning,
13 yes
14 Q And --
15 A with her father.
16 Q was she in the -- was she accompanied by law
17 enforcement?
18 A Yes, she was.
19 Q And she didn't approach you or the front door of the
20 residence, did she?
21 A No, she did not.
22 Q And through law enforcement did she request the return
23 of some of her personal belongings and items such as her clothing
~
I - ) 24 and personal effects?
25 MR. RAGANO : Your Honor, I'm going to object to
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relevance. He also -- I think he's arguing his motion for
contempt without notice to us. I think that's where he's
going.
THE COURT: Relevance?
MR. IGNATUCK: The relevance is whether or not this
petitioner who has brought forth a civil complaint for an
injunction ex parte has complied with the terms and
conditions of the temporary injunction.
THE COURT : That's contempt perhaps . To make it clear,
the issues that we are here about today has to do with what
happened up until the filing of the petition. The only
reason something relevant to that issue -- I mean, the only
reason something subsequent to that issue may be relevant is
if it shows that he's not afraid. So if it doesn't go to
whether or not he's afraid, then it's not likely relevant to
the issue on the petition.
MR. IGNATUCK: Yes, Your Honor. May I have just a
moment, Your Honor?
THE COURT: You may.
MR. IGNATUCK: I appreciate it.
THE COURT: You may.
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MR. IGNATUCK: I have no further questions at this time.
THE COURT: Redirect?
MR. RAGANO: No questions, Your Honor. No further
witnesses.
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THE COURT: Okay.
MR. RAGANO: We rest at this time.
THE COURT: Okay. You may have a seat at the table.
MR. RAGANO: Your Honor, I'd actually ask the Court to
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enter the petition for protection against domestic violence
because I think we've proven a prima facie case at this point
in time. I'm not sure if she's going to testify, but she has
criminal charges pending.
THE COURT: So I'm going to enter it without a response?
MR. RAGANO: If she's going to testify, it's going to be
very concerning. I mean, that's your call, but --
THE COURT: I was going to say, she's represented by
able bodied counsel.
MR. IGNATUCK: Your Honor, at this point we would
actually move the Court to dismiss the injunction and argue
that they have not made a prima facie case, and particularly
in light of the motives of this petitioner which have been
clearly established I submit not only on cross-examination
but in direct examination as to what his motives are in this
case, considering there's a dissolution of marriage action
pending. And we submit that there's not been a prima facie
case that's been brought forth. And we ask the Court to
dismiss it at this time.
THE COURT: Response?
MR. RAGANO: Your Honor, we've actually provided the
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Court substantial competent evidence. We've actually -
through not only the deputy, through Mr. Flax, the petitioner
showing that there were several acts of battery which is a
qualified act under chapter 940 or 741. We've also shown
that she's committed an aggravated assault with a firearm
which will allow the Court to enter the petition and a final
judgment. We've also presented testimony that he has been
injured in the past, several acts of domestic violence
battery, also that he's in fear of becoming a victim of
domestic violence, not only through the threats to him with a
loaded firearm , but also to his daughter. And we'd ask the
Court to deny any type of request for a motion to dismiss,
that we have provided the Court substantial competent
evidence.
MR. IGNATUCK: Your Honor, may I cite some cases to the
Court and provide them?
THE COURT: Sure.
MR. IGNATUCK: Thank you. I've highlighted the cases
for both yourself and for -- and counsel for the petitioner.
They're both 2nd district cases. One is Kopelovich v.
Kopelovich at 793 So.2d 31. It's a 2nd district case in 2001
in which the Court on the last page of that opinion, on page
33, and I've highlighted it for everyone, basically states
that the evidence supporting the injunction should be, quote,
"Strong and clear", close quotes, in order to balance the
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harm sought. And that's our position, is there has to be a
balancing test of the effects of this injunction being issued
versus the harm -- versus the harm that -- and the harm
sought versus the strong and clear evidence that needs to be
shown.
Also Moore v. Hall at 786 So.2d 1264, also a 2nd
district case from the same year, 2001, the Court -- again,
the 2nd district recited on page 1,266 on the right hand side
the standard under 741.30 in that the petitioner had to prove
that -- that she had a reasonable fear that she was in
imminent or in, quote, "Immediate and present", close quotes,
danger of becoming a victim of domestic violence. And I
submit that based upon the -- the testimony that's been
brought forth here that that burden has not been met by the
petitioner.
THE COURT: The Court having heard the testimony as it
has been presented by the petitioner, the Court finds that
the petitioner has testified that he has in fact been a
victim of acts or threats of physical bodily harm or injury.
In addition, subject to cross-examination, although
respondent points out significant evidence and support for
the allegations as to the motive for the petitioner having
filed the petition, at this time the allegations of acts or
threats of physical bodily harm or injury remains unrefuted.
So at this time, the Court must accept the testimony of the
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petitioner, that he has in fact been a victim of physical
bodily harm or injury.
MR. RAGANO: Thank you, Your Honor.
MR. IGNATUCK: Thank you, Your Honor. Your Honor, I
would like to call as our first witness Norman Hart.
THE COURT: Who is --
MR. IGNATUCK: That is the father of the -- of the
respondent.
THE COURT: Okay. And can you proffer for the Court
what his testimony is going to be?
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MR. IGNATUCK: Yes, Your Honor. I would proffer that
Mr. Hart was with the respondent during the entire day until
the afternoon -- late afternoon hours and that she
accompanied him to Lakeland for some tests for himself,
physical tests and that they returned late in the afternoon
and that she had not been drinking at all, that there was no
consumption of alcohol. I would also support - - he would
also testify that he was present in the emergency room when
the petitioner appeared on August 4th after the issuance of
t his injunction and that the petitioner did not appear
nervous or afraid of the respondent and that he witnessed
them conversing. And he would also testify as to the email
that he received on August 1st of this year after he received
the injunction. And also that he was present on the 16th of
August of this year when he accompanied his daughter to
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the -- to the marital residence to -- for her to retrieve her
personal belongings and that the petitioner refused to return
any of her belongings except for a purse that was basically
empty and a bag of old medications. Also he could testify as
to the living conditions that my client has had to endure for
the last 30 days at his -- at Mr. Hart's residence and why it
has caused her harm and why it has become an imposition for
her and for him. That's what I proffer.
THE COURT: Subsequent acts to the petition are not
really relevant for the -- to the issue before the Court. If
the witness was not present during the alleged incident, then
his testimony would not provide any additional support to the
Court to help make a decision of whether or not the
petitioner has been a victim of an act of threat of physical
bodily harm or injury.
MR. IGNATUCK: Yes, Your Honor.
THE COURT: Okay.
I understand.
MR. IGNATUCK: I would also proffer the testimony of two
character witnesses, both of whom have known the respondent
for many years and each of whom can testify that they have
seen her in various situations in which there has been stress
involved in the environment and they have never seen her
demonstrate undo anger or abuse upon anyone else and that
they have -- one of them has worked with her in the field.
Another one is a pastor who has known her in his church for
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many years and has never seen her demonstrate any type of
violence or violent tendencies toward anyone else.
MR. RAGANO: It's strange what happens behind closed
doors at times.
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THE COURT: Unless again the witnesses were present
during the alleged incident or can provide testimony to the
Court to indicate that somehow the petitioner's testimony
here today is untruthful, then the testimony of the witnesses
would not necessarily be relevant to the issues before the
Court.
MR. IGNATUCK: Your Honor, again, I would at least ask
the Court to accept the testimony of -- the proffered
testimony of Norman Hart as to her state of sobriety that day
which certainly is contradictory to what the petitioner has
testified about her. He said that she was mildly intoxicated
when she entered the residence.
THE COURT: Okay. I will take note of that. The
evidence does show that -- the deputy also testified however
that he noticed or observed the odor of an alcoholic beverage
on the respondent .
MR. IGNATUCK: Yes, Your Honor. I -- that's -- that
would be the scope of the testimony and evidence that we
would proffer at this time . And I woul d respectfully renew
my motion that was
petitioner's case.
that was made at the end of the
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THE COURT: Okay. All motions have properly been
renewed unless there's some additional argument other than
what we previously discussed.
MR. IGNATUCK: Yes. I do have some argument, but I --
I'm t he respondent, so I I don't know who would go first .
THE COURT: Is this argument different than the
arguments for the motion to dismiss?
MR. RAGANO: Same argument, Your Honor.
THE COURT: Okay. Your argument, sir?
MR. IGNATUCK: I'd like -- yes. I'd like to make some
additional if I may, Your Honor.
THE COURT: Okay.
MR. IGNATUCK: The testimony of this petitioner has to
be I submit taken into account by the Court . Although my
client has a criminal charge pending, the testimony of the
petitioner in the light most favorable to him even is not
believable. He said that he was afraid of being murdered,
this incident, and yet he he called on a non-emergency
line to the sheriff's office. That was his testimony, that
it was a non-emergency line. He also sa i d that my client
pushed him 40 or 50 times and knocked him off to the bed, he
almost lost his balance and had to hold on and grab on to
furniture, yet no visible injuries. And the deputy took
photos of this man. He also testified that his daughter
heard al l of this. And the daughter's testimony that was
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attached to his petition doesn't mention anywhere of any of
these alleged threats that -- that she would be killed. The
daughter doesn't say that she saw one push. The daughter
doesn't say that she heard one threat.
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And yet the same petitioner who says that he is afraid
that he's going to be murdered telephones my client two days
after the issuance of the injunction, appears at the hospital
five days after the issuance of the injunction. He admits
that the day before that he may have told her that he wanted
her out of the home, and thus that is the real core of this
case, is that the petitioner filed his case for a divorce pro
se. My client hired an attorney, tried to set aside a
postnuptial agreement which upset the petitioner . And that's
really his motive here.
If you hear his testimony, it really pertains to the
potential alimony claim against him, the potential of the
postnuptial agreement being set aside. That's his motive
throughout this. And he wanted her out of the house. He
told her the day before not to come home the next night for
dinner. And he used this episode within the home to have her
extricated from the home and basically abused the process in
order to do so.
There -- the Court can issue -- under the statute, Your
Honor, the Court can issue an injunction for protection but
not require that the petitioner have the exclusive use and
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possession of the home. There are remedies for this claim
that don't cause that type of harm to my client . And that's
what we're asking the Court to consider here. What -- what
the husband wants is to secure an advantage in the divorce
case by having the respondent criminally charged and
prosecuted, which he admitted he has taken steps to do. And
yet he writes the self-serving emails or letters that says
that he loves her as much as the day that they -- that they
got engaged and that he always cares about her even now, yet
he's trying to get her arrested and charged for a felony for
an incident three years earlier that he -- that no one
witnessed, that he never called the police on. And he's
trying to get her -- he did get her charged the evening of
the incident with a misdemeanor. His motives are very clear
in this case.
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And the acts of the petitioner which are utterly
reprehensible to record this woman for all the years of their
marriage in various rooms and to use -- attempt to use the
recordings against her, again, I submit to you that that
motive should be taken into account . And we do not feel that
this is enough to issue a permanent injunction. If the Court
feels otherwise, we would respectfully ask the Court if the
Court is -- wants to adjoin domestic violence, we understand
that. But we would also ask that you not grant the
petitioner the specific request that he has made, which was
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to give him exclusive use and possession of the home which
would give him a tremendous advantage in the dissolution of
marriage action.
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THE COURT: Does she have a no contact from the criminal
court? That's normally the standard.
MR. IGNATUCK: Yes.
THE COURT : So even if she didn't get an injunction, you
still have to go to the criminal court to get the no contact
removed.
MR. IGNATUCK: And we would be of course doing that if
the Court does not grant the injunction today o~ if the Court
grants the injunction but does not grant exclusive use and
possession. But I understand what you're saying. Even if
you were -- even if you were to either not grant the
injunction or grant it but not give the husband exclusive use
and possession, she can't just come back home unless the
criminal judge allows that. But I'd submit to you that
that's really an issue for the criminal court to decide and
not for -- for you to decide.
THE COURT: I just wanted to make sure you understood
that
MR. IGNATUCK: Yes, I do.
THE COURT: and your client understood that.
MR. IGNATUCK: Yes, we do.
THE COURT: Okay.
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MR. IGNATUCK: But we would ask the Court to at least
give her that opportunity to allow that, because in the
meantime there is a no contact provision.
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Your Honor, we'd also ask that the request about her
having to obtain counseling, . domestic violence counseling,
that that also be deleted as again its design in nature is to
secure an advantage for this man in the dissolution of
marriage action.
And, you know, whether or not -- and I don't know at
this point whether or not it's proper to adduce what the
income of these parties are or what their occupations are
because I don't think you've really heard what my client does
for a living. But that -- the harm that can be given to her
with the issuance of the injunction should be balanced at
least against what these claims are here in court . Thank
you.
THE COURT: With reference to the statute governing
domestic violence, it is two fold. The Court must determine
that the petitioner has either been the victim of an act of
threat of physical bodily harm or has reasonable cause to
believe that he or she is in imminent danger of becoming a
victim of an act of domestic violence . Counsel for the
respondent, your points are well taken as to motive,
circumstances, and all of the other positions you've taken
wi th reference to the issue of fear. But as I stated
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earlier, the testimony is unrefuted that he's been the victim
of an act or threat of physical bodily harm. With that being
said, he's entitled to the order of protection. There's no
evidence to refute that he's been the victim of physical
violence . The statute says or. Once that's determined, the
issue of reasonable cause to fear or imminent danger doesn't
become irrelevant . It's just no longer required. So again,
because of the unrefuted testimony that he's been the victim
of physical bodily harm or injury, the Court will sustain the
order of protection at this time. Orders of protection are
effective for a period of one year. Either party of course
may ask that they be dissolved at any time.
Ma'am, I'm sure your attorney is aware, but just so you
understand, the Court does not make a determination as to
whether or not to grant an order of protection based on being
charged with criminal charges. They are charges . That's all
they are . You haven't been convicted of anything. So that's
not a consideration for me, okay?
MR. IGNATUCK: Judge, we would ask the Court delete the
exclusive use and possession of the marital residence as
as part of the injunction. We would ask that that portion of
the injunction be -- be removed. And we'll have to deal with
the no contact in the criminal court . But at this point,
these parties are going through a divorce. This is a marital
home. This is a marital asset. And we submit that it would
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be -- it would be unduly prejudicial and unduly harmful to
the respondent for - - for the Court to grant this man
exclusive use and possession of this horne at this time. So
we're asking that the Court not include that and give us an
opportunity to go across the street in county court and
have -- or have Judge Heinrich determine it, one or the
other .
THE COURT: Counsel, if I find that he's been a victim,
what is the legal basis for me to order him out of the home?
And obviously both parties can't remain in the horne .
MR. IGNATUCK: Well, they -- they I think under the
statute they could. That's my point. If you look at --
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THE COURT: How is he going to remain 300 feet away from
her if they reside in the same home?
MR. IGNATUCK: The Court doesn't have to impose a 300
foot. The Court can -- the Court under -- and let me get the
exact section, Your Honor, of the statute. But the Court can
merely adjoin her from committing any domestic violence acts.
THE COURT: And allow them to remain in the residence?
MR. IGNATUCK: Yes, Your Honor. That is something that
can be --
THE COURT: I'm not inclined to do that. Once I find
somebody has been a victim, I'm not going to let the alleged
abuser remain in the same residence. Somebody's got to move.
But you're absolutely right. I don't have to grant exclus i ve
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residency of the home. And oftentimes we don't . But either
one party or the other stays in the home . But we don't allow
both parties to remain in the home after we grant an order.
MR. IGNATUCK: Well, we do have a motion pending for t he
exclusive use for the wife in the -- in the event -- the
motion was filed several weeks ago. And it asks the Court
that in the event you issue a -- a permanent injunction that
you permit Ms . Hart-Flax to have the exclusive use and
possession. So if you're inclined to make sure that only one
party has the exclusive use and possession, particularly
under these circumstances with a doctor who's taped her in
this house, that at least she have the opportunity to get
back in the house. And if he is afraid, then he and his
daughter can go somewhere else .
THE COURT: But that was my question to you earlier.
You're asking the Court to find that he's been a victim but
he has to leave?
MR. IGNATUCK: Well, it's not -- we're not conceding
that he is a victim.
THE COURT: Right . But that's my finding. You don't
have to at this point .
MR. IGNATUCK: But -- but if he is a victim, I'm not
I'm asking -- I'm still asking that you can still protect him
as a victim but still --
THE COURT: But somebody's got to move.
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MR. IGNATUCK: Well, it gives him the protection that
he's seeking. He wants to be 300 feet away from her. And
and he can still do that without her having to suffer and be
out of the home, particularly under these circumstances . My
client also -- you know, we can present testimony about this,
but -- but Dr. Flax has a condominium in south Florida that
is I believe titled in his brother's name, but he has access
to that. And there he has other places where he can go.
THE COURT : I don't think so.
MR. RAGANO: We object.
THE COURT: Anything else?
MR. IGNATUCK: No, Your Honor.
THE COURT: Okay.
MR. IGNATUCK: There's no requirement for counseling I
assume at this point .
THE COURT: There will be in conjunction with the
criminal case, so she won't have to start it immediately.
MR. IGNATUCK: But you're not ordering it.
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THE COURT: Then I -- yes, I do order it, but I say in
conjunction with the criminal case. And the reason I do that
is in the event there is a conviction and she's ordered to
attend counseling, then it's not duplicative. So I will
order counseling, but it will be subject to the criminal case
so that if again they order i t, then that's fine. That class
will suffice for thi s one .
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MR. IGNATUCK: But what -- thank you.
THE COURT: But if they don't, she still has to take it.
MR. IGNATUCK: So you're -- you're actually specifically
ordering it?
THE COURT: I -- yes . But she just doesn't have to
start it within the 30 days.
MR. IGNATUCK: Okay. Could we wait until the criminal
case?
THE COURT : Yes. It's in conjunction with the criminal
case.
MR. IGNATUCK: Okay. Your Honor, my -- the other thing
is that -- and I know this is -- I know this is subject for a
motion for contempt later on, but can my client have a set
period of time now where she can retrieve her dog and her
clothing and can the Court order this today so that we can
have a definite time when she can --
THE COURT : I can order a return to the residence. But
if there's a dispute, you all will take that up on the fourth
floor.
MR. RAGANO: Thank you, Your Honor.
THE COURT : All I do is order her to be allowed to
retrieve personal items, anything that's personally
identified as hers. If it's marital property, it's taken up
on the fourth floor unless he agrees that she can take it.
MR. IGNATUCK: Well, I'm wondering right now whether he
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agrees about the dog because this is a gift to her.
THE COURT: The dog
MR. RAGANO: That's property, Your Honor. That's in the
marital case.
THE COURT : So you're not agreeing?
MR. RAGANO: No. It's property.
THE COURT: Okay.
MR. IGNATUCK: Okay, Your Honor.
THE COURT: The answer to the question. But she still
needs to return for other personal items?
MR. IGNATUCK: Yes, Your Honor.
THE COURT: Okay.
MR. IGNATUCK: She has almost
THE COURT: I will allow it.
MR. IGNATUCK: virtually all of her clothing
MR. RAGANO: And, Your Honor, I will coordinate that
with opposing counsel, but I don't want her just showing up
unannounced to retrieve items. We'll coordinate.
THE COURT: What I -- yes . She doesn't necessarily get
to do that because she's got to contact law enforcement. She
doesn't get to go on her own.
MR. RAGANO: That's fine .
MR. IGNATUCK: Can -- can we have a date now that -
that we can agree on so that she can appear?
MR. RAGANO: I will have a date
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THE COURT: Do you need a date?
MR. RAGANO: -- I will have a date to him. Can we do -
wait till Tuesday, Your Honor? We'll have it close of
business by Tuesday because right now I just don't know what
he has available and we're closed on Monday, so.
THE COURT: Well, I don't think his house is closed on
Monday.
MR. RAGANO: No. But I
THE COURT: Or Saturday or Sunday.
MR. RAGANO: I want to put it in writing and send it
over to opposing counsel so
THE COURT: No. We can do it right now on the record.
When do you want to go and get your belongings?
THE RESPONDENT: I have nothing. I don't have any
clothes .
THE COURT : I understand.
THE RESPONDENT: I need my
THE COURT: When do you want to go?
THE RESPONDENT: Tomorrow or Sunday.
THE COURT: Saturday or Sunday.
MR. RAGANO: Saturday or Sunday. Just pick one day;
Saturday or Sunday?
THE PETITIONER: There's more issues than that.
MR. RAGANO: I know. But let the Court know Saturday or
Sunday.
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( . THE COURT: Not for today. Saturday or Sunday?
2 MR. RAGANO: Sunday, Your Honor.
3 THE COURT: Sunday. What time? Do you have any
4 conflicts? That's the only reason I'm asking.
5 THE PETITIONER~ In the afternoon I have a conflict. In
6 the morning would be better.
7 THE COURT: Okay. In the morning.
8 MR. IGNATUCK: Can my client have a three hour period to
9 do this, Your Honor? She has a lot of items of clothing, and
10 she wasn't allowed in the home the last time. And the
11 other -- the other
12 THE COURT: What time are we talking about?
13 MR. IGNATUCK: Maybe
14 THE COURT: 9:00?
15 MR. IGNATUCK: Yes, Your Honor. 9 to 12 .
16 THE COURT: What you all have to be concerned about is
17 she has to contact law enforcement.
18 MR. IGNATUCK: Yes .
19 THE COURT: I don't know for sure, but I can almost,
20 almost tell you without a doubt they're not going to stay
21 there three hours. I don't know. I could be wrong. But
22 it'd be my guess it's not likely you're going to get a deputy
23 who's going to sit there for three hours while she removes
\ ) 24 her personal --
25 MR. IGNATUCK: Well, however long they'll allow it I
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think is
MR. RAGANO: That's fine. That's fine, Your Honor. But
I think she has, like, 150 pairs of shoes, like, a full
closet, a wardrobe. If she wants to remove all of those
items~ it's going to take some time. It's going to take some
time.
THE COURT: Well, you all work it out with the deputy.
Like I said, I could be wrong . But I would just be
terribly -- I mean, we have deputies here. And I would just
be terribly surprised if they sat there for three hours.
MR. RAGANO: Yeah. The deputy said 10 minutes last
time.
MR. IGNATUCK: Judge, there's one other thing, Your
Honor, and that is that Mr. Flax has taken her vehicle. It
might be titled in his name, but
THE COURT: We don't do property.
MR. IGNATUCK: Actually, it's titled -- it's actually
titled in her name .
THE COURT: Are you willing to give her the vehicle that
she's speaking of?
MR. IGNATUCK: He has two vehicles. She has none.
MR. RAGANO: That's fine, Your Honor, without prejudice.
THE COURT: Okay. Which vehicle?
THE PETITIONER: Hers. It's the --
THE COURT: Which is?
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THE PETITIONER: G37.
THE COURT: A G37. You can have possession of the
vehicle.
MR. IGNATUCK: Thank you, Your Honor.
MR. RAGANO: That's without prejudice until the chapter
61 cases are --
THE COURT: Absolutely. That's just possession, not
ownership.
MR. RAGANO: Thank you, Your Honor.
THE COURT: Okay.
MR. RAGANO: I appreciate it. You want us to wait
outside, Your Honor?
THE COURT: Yes. They'll bring the order out to you.
(The proceedings were concluded.)
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1 C E R T I FIe ATE
( 2 STATE OF FLORIDA
3 COUNTY OF HILLSBOROUGH
4 I, Michael Drake, certify that the foregoing transcription is
5 true and correct of the proceedings in this matter, taken by way of
6 , electronic recording.
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