LACIE SHEWMAKER vs JAMES SHEWMAKER, I I I

Lakeland, FL - Divorce lawyer represented Appellant with appealing the order denying her motion to set aside the default judgment dissolving her marriage

Ms. 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).

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 child:

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[8] (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

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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[8]

(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).

Accordingly, 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.