CHARLES LEE ROSALY v. VERONIKA KONECNY

Citation: Not availableDocket: 21-3236

Court: District Court of Appeal of Florida; August 31, 2022; Florida; State Appellate Court

Original Court Document: View Document

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Charles Rosaly's appeal against a final judgment for protection against stalking is reviewed by the Florida Fourth District Court of Appeal. The court affirms the judgment except for the parts prohibiting Rosaly from contacting his three minor children and granting Veronika Konecny 100% sole time-sharing. The judgment followed a hearing that Rosaly did not attend. He argues that the evidence did not justify the stalking injunction. The court emphasizes that the legal sufficiency of evidence, rather than its weight, is the focus for appellate review. Under Florida Statutes, stalking requires willful, malicious, and repeated acts that cause substantial emotional distress to the victim, necessitating proof of two incidents of harassment. Substantial emotional distress is defined as being greater than ordinary distress and must be assessed by the reasonable person standard. Communications deemed merely unpleasant or irritating do not meet the threshold for an injunction. The court cites precedents indicating that offensive speech or behaviors that do not evidence a pattern of conduct causing significant emotional distress are insufficient for granting injunctive relief.

Extreme and outrageous conduct can lead to substantial emotional distress for a reasonable person, as illustrated in Robertson v. Robertson, where an ex-husband's repeated nighttime surveillance of his ex-wife caused such distress. Harassment, as defined under Florida Statutes, requires that the conduct serves no legitimate purpose, which is evaluated on a case-by-case basis. In a specific case involving Rosaly, evidence showed he repeatedly drove by the appellee’s home while threatening her, and operated a drone over her residence multiple times. This behavior lacked any legitimate purpose and supported the issuance of an injunction against him. 

Furthermore, the use of drones, particularly in a manner that invades privacy, is regulated by Florida Statutes, which prohibit recording images of individuals without consent if intended for surveillance. The statute allows aggrieved individuals to seek damages and injunctive relief for violations. Given the context of privacy invasion, the use of a drone is seen as conduct that could lead to substantial emotional distress under the stalking statute. The Third District Court of Appeal has recognized drone surveillance as potentially constituting stalking.

The court recognized the potential for an allegation of drone surveillance to be actionable under stalking laws but noted a lack of specific details regarding the observation, such as the date and actual surveillance events. Surveillance is identified as a common characteristic of stalking and cyberstalking, with references to out-of-state cases affirming the classification of drone surveillance as stalking. In particular, a Georgia case upheld a protective order based on repeated drone harassment. 

The court reversed parts of the final judgment related to time-sharing and no contact regarding the parties' minor children, emphasizing that Florida's stalking statute (Section 784.0485) does not authorize custody determinations. It compared this to the domestic violence statute (Section 741.30), which explicitly allows for custody changes. The trial court was found to improperly attempt to include custody determinations within the stalking statute, which lacks specific language supporting such relief. Additionally, the appellee did not file a petition for exclusive time-sharing for the children, and courts cannot grant relief not requested in the pleadings. This constitutes a due process violation, leading to a reversible error. The decision was affirmed in part and reversed in part, with concurrence from Judges Ciklin and Kuntz. The ruling is not final until any timely filed motion for rehearing is resolved.