FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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. Shewmaker's 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).
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 parent's 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 mother's
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. Shewmaker's
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
determines that the best interests of the child require such
action. See Dellavecchia, 547 So.2d at 288.
in part, reversed in part, and ...