DIANA LYNN SEIBERT, APPELLANT,
v.
ROBERT PAUL SEIBERT, APPELLEE
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In this interlocutory appeal from a denial of a motion to set aside a default judgment in a child custody case, the Fourth District Court of Appeal affirmed the trial court's denial of relief but remanded with instructions that custody remain subject to reevaluation based on the best interests of the children, cautioning against allowing technical pleading defaults to foreclose custody determinations.
The trial court properly denied relief from the default judgment because the evidence failed to establish mistake, inadvertence, or excusable neglect. However, the custody issue remains subject to reevaluation based on the paramount consideration of the best interests of the children, and such matters should not be foreclosed by technical pleading defaults.
[1] A party seeking to set aside a default judgment based on mistake, inadvertence, or excusable neglect must present evidence establishing a justification for relief.
[2] Child custody determinations are always subject to reevaluation based on the best interests of the children.
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Join FLexlaw to unlock all legal intelligence“we find that the trial court was correct in determining that the evidence failed to establish any reason justifying relief from the default judgment”
Establishes that the trial court properly denied the motion to set aside the default based on insufficient evidence of mistake, inadvertence, or excusable neglect.
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Join FLexlaw to unlock all legal intelligenceThe wife/child custodian failed to respond to the husband's petition to modify the final custody judgment, resulting in a default judgment that transf…
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PER CURIAM.
This is an interlocutory appeal from the denial of a 1.540(b) motion to set aside a default judgment previously entered against the wife/child custodian in a contested custody matter. Custody was transferred to the husband after the default and the matter remains pending before the trial court on further petitions to modify child custody. This case started in 1980 as a contested child custody battle and despite extensive resort to the courts the controversies over the children continue unabated.
The wife maintains on appeal that the default order of the trial court granting her husband custody of the minor children should be vacated because of her mistake, inadvertence and excusable neglect in failing to respond to the husband’s petition to modify final judgment. Upon review of the matter, we find that the trial court was correct in determining that the evidence failed to establish any reason justifying relief from the default judgment. Therefore, the decision of the trial court is affirmed. We caution that the issue of child custody is still subject to determination based upon the paramount consideration of the best interest of the children. A petition remains pending on the issue of custody and the appellant’s prior noncompliance with court orders and other defaults are but circumstances to be considered on the court’s further determinations as to custody. In short, child custody between contesting parents is always subject to reevaluation based upon the interests of the children. Such issues are not to be foreclosed on technical pleading defaults. Here the former husband was entitled to the default but the court must proceed to consider the further petition on custody without foreclosing consideration of all relevant factors bearing on the best interest of the children.
Affirmed and Remanded.
ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.
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Citator
Cited By (14 total)
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Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)…aside. It has long been the rule in Florida that child, custody should be decided based on the best interests of the children, not based on the default of one of the parents. See Longo v. Longo, 576 So. 2d 402 (Fla. 2d DCA 1991); Seibert v. Seibert, 436 So. 2d 1104 (Fla. 4th DCA 1983); Duckworth v. Duckworth, 414 So. 2d 562 (Fla. 3d DCA 1982). Even though Mr. Barnett should not be rewarded for spiriting the children away from their mother, the children’s best interests are paramount. Accordingly, we remand to…
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Gaetano Longo v. Longo, 576 So. 2d 402 (Fla. 2d DCA 1991)…sitation. Such issues are to be determined upon the best interest of the children, and are not to be foreclosed because of pleading defaults. Rhines v. Rhines, 483 So. 2d 4 (Fla. 2d DCA 1985), rev. den., 488 So. 2d 68 (Fla.1986); Seibert v. Seibert, 436 So. 2d 1104 (Fla. 4th DCA 1983). Section 61.13(2)(b)2, Florida Statutes (1989) requires the court to order shared parental responsibility unless the court finds that it would be detrimental to the child. The trial court did not make this specified finding of d…
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Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002)…(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, 86…
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