GAETANO LONGO, APPELLANT,
v.
KAREN LYNN LONGO, APPELLEE
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In a family law dissolution case, the Florida appellate court affirmed the trial court's denial of the husband's motion to set aside a default judgment but reversed and remanded regarding child custody, holding that the trial court must make specific statutory findings regarding detriment to children before denying a parent's custodial and visitation rights, even when a default has been entered.
The trial court did not abuse its discretion in denying the motion to set aside the default, as the husband failed to establish excusable neglect or a meritorious defense. However, the trial court erred in granting sole custody to the wife and denying all visitation rights without making the statutory finding that shared parental responsibility would be detrimental to the children, as required by Florida law.
[1] A trial court does not abuse its discretion in denying a motion to set aside a default judgment when the movant fails to establish the existence of a meritorious defense…
[2] Denial of a motion to vacate a default judgment does not preclude appellate review of issues concerning child custody and visitation.
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Join FLexlaw to unlock all legal intelligence“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 detriment in the final judgment and therefore erred in granting sole custody of the children to the wife.”
Establishes the statutory requirement for findings of detriment before awarding sole custody
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Join FLexlaw to unlock all legal intelligenceThe wife petitioned for dissolution of marriage on January 22, 1990. The husband failed to respond, and a default was entered on February 14, 1990. Al…
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THREADGILL, Judge.
The husband appeals an order denying his motion for rehearing and to set aside default and default judgment.
We affirm the order but find that granting of sole custody of the minor children to the wife and denying the husband visitation rights, without the requisite findings of detriment to the children, is error.
On January 22, 1990, the husband was served with the wife’s petition for dissolution of marriage. The husband failed to respond and a default was entered against him on February 14, 1990. Thereafter, a final hearing was held of which the husband received notice but failed to attend.
On March 9, 1990, a final judgment of dissolution of marriage was entered. The final judgment awarded the wife alimony, sole custody of the children, child support and made an equitable distribution of property.
However, the final judgment denied the husband all rights of visitation with the minor children, which relief had not been requested in the petition. The husband thereafter hired an attorney who filed a motion for rehearing and to set aside the default and default judgment on the grounds of excusable neglect and the existence of a meritorious defense. Following an evidentiary hearing, the husband’s motion was denied.
The husband argues that the trial court abused its discretion in denying his motion. We disagree. At the hearing on the husband’s motion, he failed to establish the existence of a meritorious defense. In addition, there was substantial competent evidence presented from which the trial court could have determined a lack of excusable neglect. See Westinghouse Elevator Co. v. DFS Constr. Co., 438 So. 2d 125 (Fla. 2d DCA 1983).
We decline to consider the husband’s issue on appeal concerning the distribution of marital assets. The Florida Supreme Court in Bland v. Mitchell, 245 So. 2d 47 (Fla.1970) held that denial of a motion to vacate a default cannot on appeal bring up for review the merits of the final judgment sought to be vacated. However, we are not precluded from considering the husband’s issues of child custody and visitation. 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 detriment in the final judgment and therefore erred in granting sole custody of the children to the wife. See Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987). As stated in section 61.-13(2)(b)l, “[i]t is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the ... marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing.” A natural parent should not be precluded from asserting valid parental rights, irrespective of a default judgment entered against him. See Rhines; Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973).
Finally, the final judgment granted relief which was not sought in the petition for dissolution, specifically, a termination of the husband’s visitation rights. A party against whom a default is entered can only be said to have admitted the well-pleaded facts, and to have acquiesced in the relief specifically prayed for. Williams v. Williams, 227 So. 2d 746 (Fla. 2d DCA 1969); Freeman v. Freeman, 447 So. 2d 963 (Fla. 1st DCA 1984).
We therefore, remand this case for the trial court to make a determination, with or without receiving additional evidence, as to whether shared parental responsibility would be detrimental to the parties’ children, and to enter an appropriate order thereon. Hicks.
Affirmed in part, reversed in part and remanded.
CAMPBELL, A.C.J., and PATTERSON, J., concur.
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Barnett v. Barnett, 718 So. 2d 302 (Fla. 2d DCA 1998)…on of the judgment addressing the children must be set 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…
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Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002)…We hold it was an abuse of discretion for the court to make its ruling without considering the best interests of 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 exc…
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Mohamed S. Rashid v. Shanta Rashid, 35 So. 3d 992 (Fla. 5th DCA 2010)…rd of sole parental responsibility is inappropriate. Schram v. Schram, 932 So. 2d 245, 250 (Fla. 4th DCA 2005); Stelk v. Stelk, 699 So. 2d 811, 812 (Fla. 1st DCA 1997); Griffin v. Griffin, 665 So. 2d 352, 352-53, (Fla. 1st DCA 1995); Longo v. Longo, 576 So. 2d 402, 402 (Fla. 2d DCA 1991) (citing Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987)); see also Maslow v. Edwards, 886 So. 2d 1027, 1028 (Fla. 5th DCA 2004) (applying the statute and the requirement of appropriate findings to paternity actions). The tr…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Westinghouse Elevator Co. v. DFS Constr. Co. & Fed. Ins. Co., 438 So. 2d 125 (Fla. 2d DCA 1983)
- Kirkland v. Fla. Dep't of Corr., 2006 WL 3755195 (N.D. Fla. 2024)
- Laraine Rose Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973)
- Freeman v. Freeman, 447 So. 2d 963 (Fla. 1st DCA 1984)
- Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)
- Petti v. State, 227 So. 2d 746 (Fla. 4th DCA 1969)
- Seibert v. Seibert, 436 So. 2d 1104 (Fla. 4th DCA 1983)
- Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987)
- Rhines v. Rhines, 483 So. 2d 4 (Fla. 2d DCA 1985)