TARA BURKE, APPELLANT,
v.
TOMAS REYES, APPELLEE
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PER CURIAM.
The appellant mother had no notice of, did not attend, and was not represented at the final hearing which resulted in an award of the custody of her three year old daughter, who had been in her care, to the appellee father. Because she demonstrated excusable neglect, the existence of a meritorious defense that the best interests of the child required an opposite ruling, and due diligence in bringing the motion, we conclude that the trial court erred in denying her Rule 1.540 motion for relief from that judgment. See Franklin v. Franklin, 673 So. 2d 401 (Fla. 3d DCA 1991); Linthicum v. Berry, 532 So. 2d 97 (Fla. 1st DCA 1988); Pennington v. Pennington, 390 So. 2d 809 (Fla. 5th DCA 1980). The order under review is therefore reversed and the cause remanded for an expeditious trial.
Cases With Similar Vibessemantic neighbors from the corpus
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Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314 (Fla. 3d DCA 2000)…0); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971); Henry P. Trawick, Jr., Trawick’s Florida Practice and Procedure § 26-8, at 463 (1998 ed.); Bruce J. Berman, Florida Civil Procedure, ¶ 540.5, at 647 (1999 ed.); see also Burke v. Reyes, 687 So. 2d 929 (Fla. 3d DCA 1997); Shields v. Flinn, 528 So. 2d at 968; Grahn v. Dade Home Servs., 277 So. 2d 544 (Fla. 3d DCA 1973). On comparable facts, the Florida Supreme Court granted relief from judgment in Town of Hialeah Gardens v. Hendry, 376 So. 2d at 11…
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Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002)…r 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…
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Francesco Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999)…hat ruling on motion for recusal not disposi-tive). Accordingly, we dismiss the instant appeal. Such dismissal, however, is without prejudice to Zambuto’s right to file a motion in the lower court seeking to withdraw his plea. See Carlisle v. State, 687 So. 2d 929 (Fla. 4th DCA 1997). DELL, STEVENSON and HAZOURI, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pennington v. Pennington, 390 So. 2d 809 (Fla. 5th DCA 1980)
- Gaskins v. State, 532 So. 2d 97 (Fla. 1st DCA 1988)
- Linthicum v. Berry, 532 So. 2d 97 (Fla. 1st DCA 1988)