Shaw-Messer v. Messer

HARRIS, J.

Appellant applied for and received a temporary injunction against domestic violence by her husband pursuant to section 741.30, Florida Statutes. The temporary injunction, entered ex parte, was based on an affidavit sufficient to warrant the injunction. Although it does not appear from the record that appellee was provided with an opportunity to be heard on the section 741.30 injunction, it does appear that a judge in the parties’ divorce action, instead of conducting an evidentiary hearing on the earlier injunction, entered a mutual restraining order in the Chapter 61 proceedings.

Appellant urges error both because the court did not conduct a hearing and consider the injunction under section 741.30 and because the court entered a mutual restraining order under Chapter 61 without any allegation that appellant had committed any conduct deserving such action. We agree and reverse.

Section 741.30 is the appropriate vehicle for a domestic violence injunction. See Campbell v. Campbell, 584 So.2d 125 (Fla. 4th DCA 1991). Since appellee was entitled to but did not receive an opportunity to defend against such injunction, we remand to the trial court for that purpose.

REVERSED and REMANDED for further action consistent with this opinion.

DAUKSCH and COBB, JJ, concur.