Major FL Court SETS ASIDE Stalking Injunction After A Husband’s Mistress Claims “Stalking” By His Wife

September 11, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal ruled that the petitioner in the case was NOT stalked by her affair partner’s wife as a matter of law, requiring the injunction she obtained against the wife to be dissolved.

CASE: Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015)

Charge(s): Stalking Injunction

Outcome: Injunction DISSOLVED, as the petitioner did not show multiple incidents of stalking conduct (required under Florida law), and did not prove that she suffered substantial emotional distress.

Stalking and Aggravated Stalking in Florida

Stalking and aggravated stalking are serious offenses in Florida that can carry significant legal and financial penalties. Stalking occurs when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. Florida Statutes Section 784.048(2) regulates the offense of stalking.

If someone has been accused of stalking by harassing the victim, the State must establish that the defendant engaged in a course of conduct directed at the victim that:

• Served no legitimate purpose
• Would cause substantial emotional distress to a reasonable person
• Did cause substantial emotional distress to the victim

If charged criminally, stalking is a first-degree misdemeanor – punishable by up to 1 year in jail and a $1,000 fine. Cyberstalking carries the same criminal penalties as stalking, and occurs when someone does either of the following:

• Engages in a course of conduct to communicate words, images, or language through electronic methods, either directly or indirectly, which is directed at or pertaining to a targeted person; or
• Accesses, or attempts to access, the online account or internet-connected home electronic system without the specified person’s consent and that causes substantial emotional distress to the victim 

Stalking is an enhanceable offense, meaning certain forms of stalking are felonies and carry heavier criminal penalties under Florida law. For example:

• Someone who makes a credible threat to the victim in the course of stalking commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who stalks a victim 16 years old or younger commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who violates an existing injunction against stalking commits aggravated stalking, a third-degree felony punishable by up to 5 years in prison and a $5,000 fine

Note: A police officer may make a warrantless arrest of anyone they suspect of stalking based on probable cause.

Under Florida law, stalking must be done both willfully and maliciously. “Willfully” is defined as knowingly, intentionally, and purposely. “Maliciously” is defined as wrongfully, intentionally, and without lawful justification or excuse. Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007) 

In addition to stalking, there is aggravated stalking. Aggravated stalking includes the elements of stalking, but with the added requirement of making a credible threat to the victim, or violating an injunction for protection against violence. 

Aggravated stalking is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. Moreover, under Florida Statutes Section 784.048, a court may issue an order restraining the defendant in an aggravated stalking case from contacting the victim for up to 10 years.

In addition to a criminal charge, someone may be subject to a stalking INJUNCTION. In Florida, an injunction is defined as a court order that is meant to compel a person to engage in, or refrain from engaging in, a particular course of conduct. 

There are two broad types of stalking injunctions – temporary injunctions and permanent (final) injunctions. A temporary injunction (also known as an ex parte injunction) can be entered before the respondent (e.g. the party accused of stalking) gets a full hearing. The process proceeds in the following way:

• The petitioner files a verified petition alleging stalking
• The judge reviews the petition – generally, the respondent does not have to be present
• If it appears that stalking exists, the court may issue a temporary injunction pending a full hearing
• Temporary injunctions ordinarily last no more than 15 days
• A full hearing must be scheduled no later than the date of expiration of the temporary injunction
• However, the hearing on the final injunction may be continued (e.g. delayed) for GOOD CAUSE, such as inability to obtain service on the respondent (and a temporary injunction may be extended accordingly)

In the event that someone files for an injunction, a final hearing will be held before the injunction becomes permanent. At that final hearing, both parties will have the opportunity to be heard, and present evidence and testimony in support of or in opposition to the injunction’s issuance. 

There are various types of stalking injunctions that may be issued, depending on the facts of the case. These include:

• Injunction for protection for domestic violence – Under Fla. Stat. 741.30, this may issue if the petitioner and respondent presently reside together, have lived together in the past in an intimate or family relationship, are related by blood/marriage OR share a child
• Injunction for protection from repeat violence – May be issued when a party proves that at least 2 instances of stalking and/or violence have been committed against them by the respondent in the last 6 months and the petitioner/respondent do not have a relationship qualifying them for a domestic violence injunction
• Injunction for protection from dating violence – requires that 1) the dating relationship existed within the last 6 months; 2) the nature of the relationship is characterized by the expectation of affection or sexual involvement between the parties; and 3) the frequency and type of interaction is based on the party’s involvement over time and on a continuous basis during the course of the relationship
• Injunction for sexual violence – requires a victim or parent of a victim to establish that 1) the petitioner has reported the alleged sexual violence to a law enforcement agency and is cooperating in any criminal proceeding against the respondent; and 2) the respondent who committed sexual violence was sentenced to a term of imprisonment in state prison, and the term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed

It is important to understand that there is a difference in the burden of proof between injunction proceedings (civil in nature) and criminal proceedings where charges of stalking or aggravated stalking are alleged. The distinction is as follows:

• At an injunction proceeding, the petitioner (person seeking the injunction) must prove by a preponderance (majority) of the evidence that the respondent has engaged in stalking – or aggravated stalking/domestic violence/repeat violence depending on the facts of the case
• At a criminal trial, the State must prove BEYOND A REASONABLE DOUBT that the accused has committed the offense(s) charged – each and every element of the offense(s) must be corroborated by “competent, substantial evidence” (Shannon v. Smith, 278 So.3d 173 (Fla. 1st DCA 2019)

Critically, even if a “final” stalking/domestic violence/repeat violence injunction issues, this does not necessarily mean it will last forever. A permanent injunction may be dissolved if any of the following occur:

• The petitioner moves the court for dissolution of the injunction, citing to a change in the circumstances that have caused their fear to subside
• The respondent petitions the court and argues that there is no longer a legally sufficient basis for the injunction (less common, but may occur after a prolonged period when the circumstances have significantly changed, such as in Hobbs v. Hobbs, 290 So.3d 1092 (Fla. 1st DCA 2020))
• A Florida appellate court reviews the lower court’s decision and concludes that there was INSUFFICIENT EVIDENCE to support the issuance of the injunction

For a stalking injunction to issue, the petitioner must generally establish all of the following by a preponderance of the evidence:

• The respondent’s conduct had no legitimate purpose (e.g. purpose other than harassment of the petitioner)
• There were at least two instances of the objectionable conduct
• An objectively reasonable person in the petitioner’s position would have felt substantial emotional distress as a result of the respondent’s actions

The last of these, “substantial emotional distress,” is not defined under Florida law. However, a petitioner may allege substantial emotional distress by citing serious trouble sleeping (insomnia) or other symptoms that go beyond ordinary “discomfort” with the respondent’s conduct. Hart v. Griffis, 288 So.3d 770 (Fla. 1st DCA 2020)

In one major Florida case, both the “harassment” and “substantial emotional distress” prongs of the stalking injunction analysis were discussed. Florida’s 2nd District Court of Appeal (Greater Tampa’s highest court) was tasked with resolving a dispute surrounding an injunction between a man’s ex-wife and his then-mistress.

It was revealed at the final injunction hearing that the mistress (petitioner) was sleeping with the respondent’s spouse for over a year and a half. After discovering the affair, the respondent made multiple efforts to contact the petitioner by phone and over the internet, and also authored a blog post branding the petitioner a “homewrecker.”

The petitioner successfully sought an injunction, with the judge concluding that the respondent had no other purpose in contacting the petitioner other than harassment. The learned judge also found that the single blog post constituted an act of stalking.

On appeal, the respondent challenged the issuance of the injunction – arguing the following three points:

• Her communications with the petitioner were not for the exclusive purpose of harassing her
• The single blog post was not stalking, as it was only a single instance of conduct – and;
• Even if it was harassment, it was not likely to cause SUBSTANTIAL emotional distress in an objectively reasonable person

The 2nd DCA AGREED with the respondent and SET ASIDE the injunction. Let’s take a look at the case – Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015) – and discuss what it means for those in Florida involved in stalking injunction proceedings.

KEY CASE: Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015)

In Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015), the petitioner (Kearsey) successfully obtained a stalking injunction against Leach. At the final hearing, the following was revealed:

• Kearsay had an affair with Leach’s husband
• After finding out about the affair, Leach made multiple attempts to contact Kearsey over the phone and on Facebook to tell Kearsey to stay away from her husband
• Leach also authored a blog post about Kearsey – “She’s a Homewrecker” – that harshly criticized Kearsay for her conduct
• Kearsey filed for a stalking injunction, arguing she’d experienced substantial emotional distress and further claiming that she had been harassed by Leach
• The judge agreed and issued a permanent injunction

Leach appealed, arguing that she did not stalk Kearsay because her contacts with Kearsey had a legitimate purpose (e.g. telling Kearsey to stay away from Leach’s husband). Leach also claimed that even if the blog post caused substantial emotional distress, it was not stalking because there was only ONE instance of conduct (a single post)

The 2nd DCA AGREED with Leach on all fronts and SET ASIDE the injunction. Finding that Leach’s attempted contacts of Kearsay over the phone and social media had a legitimate purpose, the 2nd DCA wrote:

“This case arose from the eighteen-month affair Kersey had with Leach’s husband, Dr. Leach. After Leach learned of the affair, she contacted Kersey by phone and by messages and “friend” requests on Facebook. The evidence does not show that these contacts “serve[d] no legitimate purpose.” § 784.048(1)(a), (d); see also Alter v. Paquette, 98 So.3d 218, 220 (Fla. 2d DCA 2012) (stating that when text messages sought “repayment of a loan, it cannot be said that the text messages served ‘no legitimate purpose’ …. Rather, Leach made the contacts for the legitimate purpose of telling Kersey to stay away from Dr. Leach. Leach made each contact in response to discovering an attempt by Kersey to contact Dr. Leach. 4 In addition, the evidence does not show that these contacts would cause a reasonable person in Kersey’s circumstances to suffer substantial emotional distress. See Jones, 67 So.3d at 1204. A reasonable woman who had an eighteen-month affair with another woman’s husband might well expect to hear the scorn of an angry wife. In fact, Kersey herself clearly did not suffer substantial emotional distress from these contacts. With respect to the phone call, Kersey said she allowed Leach to “vent” and “just let her get it off her chest.” Kersey also admitted that the affair could cause Leach to be upset with her. The evidence fails to show that a reasonable person in Kersey’s situation would suffer substantial emotional distress from these contacts.”

Further concluding that the single blog post wasn’t stalking even if it may have caused Kearsey substantial emotional distress, the 2nd DCA wrote:

“It was after these contacts that Leach posted one time on the public blog entitled, “She’s a Homewrecker.” The post disclosed Kersey’s involvement in the affair. It was clear from Kersey’s testimony that she did not become concerned until Leach posted on the public blog. Kersey stated that her primary concern was that her children would find out about the situation. The trial court granted the injunction based on the blog posting. But even if the blog posting served no legitimate purpose and would cause substantial emotional distress to a reasonable person, this would only constitute one incident of stalking. Therefore, because competent, substantial evidence does not support two incidents of stalking, we reverse the final judgment of injunction for protection against stalking. Reversed.”

In sum, Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015) marks a significant development in Florida’s corpus of case law regarding stalking injunctions. The 2nd DCA (Greater Tampa’s highest court) found that:

• Kearsey failed to make a showing that she was stalked by Leach
• Leach’s efforts to contact Kearsay had a legitimate, non-stalking purpose (to tell her to not contact her then-husband anymore)
• The single blog post also could not constitute stalking as a matter of law, as it was only one incident
• As a result, the stalking injunction was SET ASIDE

Florida’s legal community should take note of Leach v. Kearsey, 162 So.3d 1104 (Fla. 2d DCA 2015), as it provides a clear analysis of when “substantial emotional distress” and no legitimate purpose have (and have NOT) been established in stalking injunction proceedings. 

If someone is charged with stalking or aggravated stalking, it is critical to find experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term, hefty fines, and depending on the nature of the abuse, whether they are required to register as a sex offender for the rest of their life.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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