pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Lee County; John S. Carlin, Judge.
Foxall of Roy W. Foxall, P.A., Fort Myers, for Appellant.
Martin Oquendo of Coleman, Hazzard, Taylor, Klaus,
Doupé & Diaz, PA, Naples, for Appellee.
Shewmaker appeals the order denying her Florida Family Law
Rule of Procedure 12.540 motion to set aside the default
judgment dissolving her marriage to James Shewmaker. We
affirm the denial of the motion except with respect to
parenting and child support issues.
Shewmaker was defaulted in the parties divorce proceeding
and did not attend the final hearing. She later filed a
motion for relief from the final default judgment that made
only a conclusory assertion that she had meritorious
positions regarding time-sharing and equitable distribution.
As such, under traditional principles applicable to such
motions, Ms. Shewmakers motion was insufficient to warrant
relief from the default judgment. See Geer v.
Jacobsen, 880 So.2d 717, 721 (Fla. 2d DCA 2004);
Westinghouse Elevator Co. v. DFS Const. Co., 438
So.2d 125, 126 (Fla. 2d DCA 1983).
However, it is well-settled in Florida that where, as here, a
divorcing couple has a minor child, a court cannot enter a
default final judgment without allowing the defaulting parent
an opportunity to present evidence on issues related to the
Generally, a decision to deny relief from a default judgment
lies within the discretion of the trial court. Longo v.
Longo, 576 So.2d 402, 403 (Fla. 2d DCA 1991);
Leinberger v. Leinberger, 455 So.2d 1140, 1141 (Fla.
2d DCA 1984); Duckworth v. Duckworth, 414 So.2d 562,
563 (Fla. 3d DCA 1982). Under most circumstances, a party
seeking relief from a default judgment must demonstrate
excusable neglect, a meritorious defense, and that the party
acted with due diligence. Andrade v. Andrade, 720
So.2d 551, 552 (Fla. 4th DCA 1998); Burke v. Reyes,
687 So.2d 929, 929 (Fla. 3d DCA 1997).
We have recognized, however, that the "best interest of
the child" standard precludes a determination of child
custody based on a parents default. See Seibert
v. Seibert, 436 So.2d 1104, 1105 (Fla. 4th DCA 1983);
see also Begens v. Begens, 617 So.2d 360,
361 (Fla. 4th DCA 1993); Barnett v. Barnett, 718
So.2d 302, 304 (Fla. 2d DCA 1998); Andrews v.
Andrews, 624 So.2d 391, 392 (Fla. 2d DCA 1993);
Sloan v. Sloan, 604 So.2d 862, 863 (Fla. 2d DCA
1992); Longo, 576 So.2d at 403; Dellavecchia v.
Dellavecchia, 547 So.2d 287, 28 (Fla. 2d DCA 1989);
Duckworth, 414 So.2d at 563; Doane v.
Doane, 279 So.2d 46, 47 (Fla. 4th DCA 1973). In making a
determination on child custody according to the best
interests of the child "guidepost," the court
should have the benefit of the testimony of both parents.
Dellavecchia, 547 So.2d at 28 (holding that,
despite the mothers default, the issue of custody should be
re-evaluated by the trial court on remand).
Armstrong v. Panzarino, 812 So.2d 512, 514 (Fla. 4th
DCA 2002). Thus, it was error to deny Ms. Shewmakers motion
for relief from the judgment in this regard. Although Ms.
Shewmaker has not asserted this specific argument on appeal,
the importance of courts responsibilities to safeguard the
best interests of children compels us to address it sua
sponte. See Rhines v. Rhines, 483 So.2d 4,
6 (Fla. 2d DCA 1985).
we reverse the portion of the final judgment concerning
parenting and child support and remand for a new final
hearing on those issues. The court also may, in its
discretion, revisit any aspect of the dissolution judgment,
including the distribution of marital assets, if it