AFANASIEV v. ALVAREZ (2020)

Appellant seeks review of two trial court orders entered in the parties' dissolution of marriage action, which were issued at a final hearing on Appellee's petition for domestic violence injunction.

After multiple evidentiary hearings on Appellee's petition for domestic violence injunction, the trial court found there was insufficient evidence to issue a permanent injunction and dismissed the petition. In an abundance of caution, however, the court sua sponte issued a stay away order in the parties' pending dissolution of marriage action and granted Appellee temporary exclusive use and possession of the marital home. Appellant argues the trial court denied him due process by issuing orders in the dissolution of marriage action as the hearing was limited to the permanent injunction. There was no pending motion or hearing noticed in the dissolution of marriage action. We have previously held that “the granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.” Lapciuc v. Lapciuc, 275 So. 3d 242, 245 (Fla. 3d DCA 2019) (quoting Miami-Dade Cty. Bd. of Cty. Comm'rs v. An Accountable Miami-Dade, 208 So. 3d 724, 734 (Fla. 3d DCA 2016)); see also Mizrahi v. Mizrahi, 867 So. 2d 1211, 1213 (Fla. 3d DCA 2004) (“Due process protections prevent a trial court from deciding matters not noticed for hearing and not the subject of appropriate pleadings.”). Accordingly, we lift the stay away order and reverse and remand for proceedings with proper notice to the parties.

Reversed.

PER CURIAM.