Charles Bechert, III v. Luciana Surban Bechert O/B/o, O.B.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHARLES HAROLD BECHERT, III,

Appellant,

v.

LUCIANA SURBAN BECHERT, o.b.o. O.B.,

Appellee.

No. 4D2024-0951

[April 9, 2025]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Susan Lebow, Senior Judge, and Elaine A. Carbuccia,

Judge; L.T. Case No. DVCE23-000072.

Natalie P. Mescolotto of NM Legal, P.A., Fort Lauderdale, and

Christopher N. Link of Christopher N. Link, P.A., Plantation, for appellant.

Adam B. Swickle of Swickle & Associates, PLLC, Fort Lauderdale, for

appellee.

CONNER, J.

Charles Bechert (“the father”) appeals a domestic violence injunction

(“DV injunction”) entered against him to protect his minor daughter. The

father raises three arguments on appeal for reversal. We affirm the trial

court on two of the arguments without discussion. We agree with the

father’s third argument that his actions, consistent with the trial court’s

findings, as opposed to the “terribly exaggerated” claims in the underlying

petition, were appropriate physical punishment of his daughter, and not

domestic violence. On that issue we reverse. Adopting the reasoning the

First District Court of Appeal employed in G.C. v. R.S., 71 So. 3d 164 (Fla.

1st DCA 2011), we hold under established Florida law, reasonable and

non-excessive parental corporal discipline is not domestic violence as a

matter of law. We therefore reverse the DV injunction, explain our

decision, and remand for the trial court to vacate the DV injunction issued

against the father. 1

1 Although the DV injunction under review has now expired, we still “reverse and

remand with instructions to vacate the injunction due to the collateral

Background

The underlying petition for a DV injunction was filed by the mother on

behalf of the parties’ then-fourteen-year-old daughter. The parents

divorced in 2018. The incident giving rise to the injunction occurred on

December 31, 2022.

The petition alleged the father: (1) punched the daughter in the head,

stomach, and back; (2) grabbed the daughter by the hair, pulled her to

ground, and sat on top of her; (3) while sitting on top of the daughter,

“squish[ed]” her head into the floor and punched and slapped her head

and face until she started throwing up; and (4) continued to punch the

daughter and then stood up and kicked her in the stomach and back

multiple times.

The trial court appointed a Guardian ad Litem (“GAL”) to address the

best interests of the daughter concerning the DV injunction proceedings.

At the final hearing, the father testified that on the night of the incident,

he and the daughter had just returned from a Colorado ski vacation. After

arriving at the father’s house, the daughter gave the father a Christmas

present of socks. Shortly after, the father became concerned the socks

were stolen. The father searched the daughter’s room to see if there were

other stolen items. In her backpack she carried on the trip, the father

found marijuana, a pipe, and a vape pen. The father announced he was

going to punish the daughter for stealing, lying, and possessing marijuana

and a vape pen by taking away her phone. The daughter refused to give

the father the phone and they “tussled” over it. At some point, the

daughter snapped the father’s finger back and broke it. The father denied

punching her, pulling her hair, sitting on her, or that she vomited.

The father next testified the daughter followed him out of her room to

the kitchen, demanding her phone. The father refused and the daughter

threw a metal thermos and an orange juice bottle. A video recording of

what transpired in the kitchen was entered into evidence.

consequences such an injunction might cause.” Stone v. Stone, 128 So. 3d 239,

242 (Fla. 4th DCA 2013); see also Bell v. Battaglia, 332 So. 3d 1094, 1097–99

(Fla. 2d DCA 2022) (listing cases where “Florida appellate courts have routinely

decided appeals from expired [DV] and stalking injunctions on the merits because

of the ‘collateral consequences’” resulting from the injunction).

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The daughter left the home and went to a next-door neighbor’s house.

The neighbor testified he did not see any bruises or red marks on her face

or other injuries, but she was crying. The daughter used the neighbor’s

phone to text her mother to pick her up. The daughter told the neighbor

she had gotten into an argument with her father but did not need the

neighbor to call the police. The daughter then went back to the father’s

house. The neighbor testified the daughter did not seem fearful to return

to her father’s house. She then came back to the neighbor’s house and

asked for a ride to the mother’s house. During the car ride, the neighbor

did not see any physical injuries on the daughter.

The mother testified she was away from her home but came home when

she received her daughter’s text message. When the mother gave the

daughter a hug, the mother saw a bruise on the daughter’s back. The

daughter also had a bruise on her leg and arm. The mother took pictures

of the daughter’s back, leg, and the upper right arm around 9:00 am the

next day. The pictures were admitted into evidence along with a picture

of the daughter’s face.

The Child Protective Investigator (“CPI”) testified there were “no

indicators of mental or physical injury because the parties were deemed

as mutual combatants.” The CPI observed “a little black and blue” on the

daughter’s shoulder and arm but no bruising or marks; there were also no

welts or bruises on her face. A copy of the CPI’s report was admitted into

evidence.

The GAL testified she believed the New Year’s Eve incident was a mutual

combatant situation, and it was “absolutely 100 percent inappropriate.”

The daughter gave in-camera testimony.

In closing argument, the father argued there was no evidence the

daughter was the victim of domestic violence or in objective fear of

domestic violence. The father also argued he had merely disciplined his

child and he did not commit domestic violence. The mother argued the

father’s actions did not constitute corporal punishment because they

caused harm to the daughter.

At the end of the final hearing, the trial court summarized the testimony

and its findings:

That before this incident on December the 31st of 2022 [the

daughter] was primarily with Mom. Although there had been

a parenting plan setting forth 50/50 time-sharing, for

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whatever reason, it doesn’t matter what the reasons were, [the

father] was not seeing her on a regular basis. Then came this

winter break and an opportunity for her to go with him to

Colorado, which everyone seemed to be in agreement with.

She had a wonderful time. She loved seeing the snow, she

had a great time skiing and then she came home. When I say

"home" she came to [the father]’s home. And Mr. – she gave

[the father] as a Christmas gift a pair of socks. [The father]

was concerned that she did not pay for those socks and he

came into the room and confronted her. She denied that she

had stolen them. There was also [the father]’s testimony that

he found pot and a vape pen. She refused to reply about the

socks and he told her she was going to lose her phone. And

with that there is the issue of physicality. Because she

resisted giving him the phone, he, physically, wrenched it from

her. During that process she -- I believe that the evidence is

that she had this fear. There’s no evidence to substantiate

any previous type of physical assault on this child. And at the

age of 14 to all of a sudden have a parent become physically

assertive, to use a nice word, is -- it’s not unreasonable for her

to have a fear of him, physically.

The trial court noted it was “in the child’s best interest right now to feel as

secure as I can make her feel.” The trial court also found “the violence

that [the mother] put in that petition . . . was terribly exaggerated. But,

this child has a fear that she’s going to be made into, you know, all of a

sudden having to spend time with this father she doesn’t know and doesn’t

trust.” (emphasis added). The trial court further found there was

reasonable competent substantial evidence that the daughter is in fear.

Accordingly, the trial court granted the injunction for six months and

ordered the father and daughter to engage in reunification therapy.

The father gave notice of appeal after his rehearing motion was denied.

Appellate Analysis

“An order granting an injunction in the domestic violence context is

reviewed for abuse of discretion.” Chiscul v. Hernandez, 311 So. 3d 55, 57

(Fla. 4th DCA 2021) (citing Selph v. Selph, 144 So. 3d 676, 677 (Fla. 4th

DCA 2014)). A trial court’s order granting an injunction must be

supported by competent, substantial evidence. Id. “‘[L]egal sufficiency . .

. as opposed to evidentiary weight, is the appropriate concern of an

appellate tribunal.’” Id. (quoting Selph, 144 So. 3d at 677). “Whether the

evidence is legally sufficient to support entry of an injunction is a question

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of law that is reviewed de novo.” Fingers v. Fingers, 353 So. 3d 1283, 1285

(Fla. 5th DCA 2023) (citation omitted).

The DV injunction in this case was entered pursuant to section

741.30(1)(a), Florida Statutes (2022), which allows the entry of a DV

injunction to protect a person “who is either the victim of domestic violence

as defined in s. 741.28 or has reasonable cause to believe he or she is in

imminent danger of becoming the victim of any act of domestic violence . .

. .” Section 741.28(2), Florida Statutes (2022) defines “domestic violence”

as “any assault, aggravated assault, battery, aggravated battery, sexual

assault, sexual battery, stalking, aggravated stalking, kidnapping, false

imprisonment, or any criminal offense resulting in physical injury or death

of one family or household member by another family or household

member.”

The father argues there was no competent, substantial evidence

presented to the trial court to support the DV injunction. The premise of

his argument is the evidence showed the altercation between father and

daughter was nothing more than the father exercising his right to

discipline his child. The father further argues the trial court’s findings of

fact support the conclusion his actions were appropriate physical

discipline, rather than an assault, battery, aggravated assault, or

aggravated battery.

The father correctly argues there was no evidence of a history of

domestic violence by the father toward the daughter or that the father had

engaged in behavior in the past that would give the daughter reason to

objectively believe she was imminently about to be subjected to domestic

violence. The father also correctly argues the trial court found the

daughter’s fear as to the future was “a fear she’s going to be made into,

you know, all of a sudden having to spend time with this father she doesn’t

know and doesn’t trust.”

The DV injunction in this case was based solely on the New Year’s Eve

physical incident between the father and daughter. In its oral summary

of the evidence, the trial court described the “physicality” used by the

father as “he, physically, wrenched [the cellphone] from her.”

Significantly, the trial court made no mention of any other physical contact

by the father or injury to the daughter.

Based on oral statements of the trial court at the final hearing, we agree

with the father’s argument that the trial court determined his physical and

verbal actions in taking away the daughter’s cell phone was punishment

for perceived theft and possession of marijuana and a vape pen. The father

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argues his actions were appropriate physical punishment, not domestic

violence.

We agree with the father’s arguments and reverse because we adopt the

First District’s holding in G.C. v. R.S., 71 So. 3d 164 (Fla. 1st DCA 2011).

In G.C., the First District held, under established Florida law, reasonable

and non-excessive parental corporal discipline is not domestic violence as

a matter of law. Id. at 165.

G.C. reviewed a final DV injunction entered after the trial court

determined the legislature did not permit any exceptions to the protection

against domestic violence afforded by the statute, including parental

discipline. Id. at 166. The First District’s analysis began with the

proposition that “the common law recognize[s] a parent’s right to discipline

his or her child in a ‘reasonable manner.’” Id. (quoting Raford v. State, 828

So. 2d 1012, 1015, n.5 (Fla. 2002)). The First District then noted that in

Raford, the supreme court held “the parental privilege to use corporal

discipline does not provide absolute immunity to charges of child abuse

under section 827.03, however, it may be asserted as an affirmative

defense to criminal child abuse charges. Id. (citing Raford, 828 So. 2d at

1020). The First District then reasoned, “[a]lthough chapter 741 governing

domestic violence injunctions does not expressly incorporate the common

law principle ‘that parents may administer corporal discipline to their

children; provided, [] the discipline is reasonable’ . . . neither does it

exclude the common law defense.” Id. (internal citation omitted)

(emphasis added). The First District then cited our opinion in Moore v.

Pattin, 983 So. 2d 663 (Fla. 4th DCA 2008), as authority for concluding

the DV injunction in G.C. should be reversed because the father’s corporal

discipline was reasonable. Id.

As G.C. observed, we implicitly recognized in Moore that appropriate

parental discipline can be a defense to a DV injunction. 983 So. 2d at

664–65.

In Moore, the trial court issued the DV injunction after disagreeing with

the father’s argument that his action disciplining his child was

constitutionally and statutorily protected. Id. at 663–64. The trial court

concluded the child’s spanking was excessive and not protected. Id.

Our analysis began with the premise that, under the common law,

“parents may administer corporal discipline to their children; provided,

however, that the discipline is reasonable.’” Id. at 664 (quoting A.A. v.

Dep’t of Child. & Fam., 908 So. 2d 585, 587 (Fla. 5th DCA 2005)). We also

recognized the statutory provisions protecting against child abuse contain

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an exception for “corporal discipline of a child by a parent.” Id. (citing §

39.01(2), Fla. Stat.). After reviewing the record evidence, we concluded in

Moore, the DV injunction was proper because we agreed with the trial court

that the corporal punishment in that case was excessive. Id. at 665.

In the instant case, we are satisfied the father’s actions in trying to take

the cellphone away from the daughter was a form of physical discipline,

but it was not traditional corporal punishment. However, even if we were

to consider the father’s “wrenching” the cellphone away from the daughter

was corporal punishment, such was not excessive punishment because

the daughter refused to surrender the phone and “[b]ecause there was no

evidence of disfigurement or significant bruising[.]” Moore, 983 So. 2d at

665; see also J.C. v. Dep’t of Child. & Fam., 773 So. 2d 1220 (Fla. 4th DCA

2000) (father spanking his child with a belt which on one occasion left a

mark did not constitute abuse within the meaning of the dependency

statutes as it was not excessive or abusive corporal punishment). The trial

court below even recognized the evidence was not “clearly about the

physical injury . . .” and the violence alleged in the petition was “terribly

exaggerated.”

The trial court entered the DV injunction below to make the daughter

“feel as secure” as the trial court could. However, the daughter’s fear of

being forced “to spend time with this father she doesn’t know and doesn’t

trust” is not competent, substantial evidence supporting entry of a DV

injunction. Instead, the competent, substantial evidence showed the

father imposed an appropriate and lawful form of corporal punishment

against his daughter, which is not grounds for a DV injunction against

him. See G.C. 71 So. 3d at 165.

Conclusion

Having determined the record does not contain competent, substantial

evidence that the father engaged in domestic violence against the

daughter, and instead, establishes the father used appropriate physical

punishment to discipline his daughter, we reverse the DV injunction

entered against the father and remand for the trial court to vacate the

injunction.

Reversed and remanded with instructions.

LEVINE and ARTAU, JJ., concur.

* * *

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Not final until disposition of timely filed motion for rehearing.

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