Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARIA ISABEL SALAZAR, Appellant, v. HERIBERTO DOMINGUEZ, Appellee. No. 2D22-684 November 16, 2022 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Polk County; Mark F. Carpanini, Judge. Jose A. Morera II of Dezayas Law Group, LLC, Lakeland, for Appellant. No appearance for Appellee. LaROSE, Judge. Maria Isabel Salazar appeals an order denying her motion to set aside a default Final Judgment of Modification. See Fla. Fam. L. R. P. 12.540. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse. There is no record evidence that the trial court considered the minor child's best interests in modifying the parties' existing timesharing schedule and the child's school enrollment. Background In an earlier paternity action, the trial court entered an order designating Ms. Salazar's address for school purposes and awarding her majority timesharing. The father, Heriberto Dominguez, had timesharing every other weekend and on certain holidays. The trial court also ordered Mr. Dominguez to pay child support. Several years later, Mr. Dominguez filed a supplemental petition to modify the timesharing schedule. Because of an alleged substantial change in circumstances, he sought majority timesharing with the child. See § 61.13(3), Fla. Stat. (2020) ("A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."). He claimed to have acquired a "stable residence and employment." He also requested a reduction in his child support obligation. 2 Ms. Salazar, through counsel, responded to the petition. She denied that modification was in the child's best interests. She asserted that Mr. Dominguez lives in his mother's home, frequently leaves the child with other family members during his timesharing, and does not care for the child's mental and physical wellbeing. Mr. Dominguez then moved to amend his petition. Soon after, Ms. Salazar's counsel requested leave to withdraw from the case. The trial court granted counsel's request. Within a couple of months, the trial court granted Mr. Dominguez's motion to amend his petition. The trial court directed Ms. Salazar to respond to the amended petition within fifteen days. She did not respond. Consequently, Mr. Dominguez moved for a clerk's default. See Fla. Fam. L. R. P. 12.500(a) ("When a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document.").1 The trial court conducted a default hearing; Ms. 1 Mr. Dominguez filed the default motion under rule 12.500(a). Ultimately, however, the trial court entered the default judgment. Apparently, Mr. Dominguez obtained relief under rule 12.500(b): When a party against whom affirmative relief is sought has failed to plead or otherwise respond as 3 Salazar did not attend. The trial court rendered an "Order Granting Default" and directed Mr. Dominguez to schedule a brief final hearing to conclude the case. The trial court conducted a final hearing in the summer of 2021. Again, Ms. Salazar did not attend. Within a few weeks, the trial court entered a Final Judgment of Modification. Essentially the Final Judgment switched the parties' previously ordered timesharing; Ms. Salazar had the child every other weekend and on particular holidays, while Mr. Dominguez now enjoyed majority timesharing. The trial court also ordered preparation of a revised child support order.2 provided by these rules or any applicable statute or any order of court, the court may enter a default against such party provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default. (Emphasis added). Our record reflects that, aside from the motion for clerk's default, Mr. Dominguez did not file another default motion. It is, indeed, puzzling how Mr. Dominguez obtained a trial court default when, as our record suggests, he only sought a clerk's default. This anomaly certainly implicates due process concerns. Under rule 12.500(a), Ms. Salazar was not entitled to notice. However, she would have been entitled to notice under rule 12.500(b). It may be the case that the trial court entered the default without notice to Ms. Salazar. 2 The revised child support order is not part of our record. 4 Ms. Salazar promptly moved for relief from judgment, arguing that she did not receive "notice that she was required to respond to the [amended petition] or appear at any hearings." The trial court was unmoved. It denied the motion, apparently not believing that Ms. Salazar lacked knowledge of the proceedings. Analysis We review an order denying a motion for relief from judgment under rule 12.540(b) for an abuse of discretion. See Singer v. Singer, 302 So. 3d 955, 960 (Fla. 2d DCA 2020) (citing Belk v. McKaveney, 903 So. 2d 337, 337 (Fla. 2d DCA 2005)). "Generally, a judgment is void if . . . in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard." Schmidt v. Nipper, 287 So. 3d 1289, 1292 (Fla. 1st DCA 2020) (quoting Nationstar Mortg., LLC v. Diaz, 227 So. 3d 726, 729 (Fla. 3d DCA 2017)). Ms. Salazar's motion set forth a colorable claim for relief based on her alleged lack of notice.3 See I.T. v. P.G.U., 334 So. 3d 356, 358-59 (Fla. 2d 3 In her rule 12.540 motion, Ms. Salazar mistakenly couched her argument as "excusable neglect." See Fla. Fam. L. R. P. 12.540(b)(1). Substantively, however, she argued that the Final Judgment of Modification was void due to a lack of notice. See Fla. Fam. L. R. P. 12.540(b)(4). 5 DCA 2022) ("A motion to vacate or set aside a judgment should not be dismissed without a hearing unless it fails to allege colorable entitlement to relief." (citing Chancey v. Chancey, 880 So. 2d 1281, 1282 (Fla. 2d DCA 2004))). We need not delve into the merits of Ms. Salazar's due process argument. See Shewmaker v. Shewmaker, 283 So. 3d 894, 895 (Fla. 2d DCA 2019). Rather, we rely upon the seemingly undisputed fact that the trial court based its child custody determination upon Ms. Salazar's procedural default. This was error. Florida law is clear: "child custody cannot be decided on the basis of a default." D.M.M. v. J.M.M., 63 So. 3d 910, 912 (Fla. 2d DCA 2011). "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." Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998); see also Booth v. Hicks, 301 So. 3d 369, 371 (Fla. 2d DCA 2020) ("[A] trial court cannot sanction a parent by modifying a custody order because doing so punishes the child for the parent's misconduct." (citing Duncan v. Brickman, 233 So. 3d 477, 480-81 (Fla. 2d DCA 2017))); Cecena v. Chambers, 6 938 So. 2d 646, 649 (Fla. 2d DCA 2006) ("[E]ntry of a default in a custody modification proceeding is not a proper sanction for a custodial parent's failure to comply with other types of court decrees."). A court may only modify timesharing or parental responsibility if the modification is in the child's best interests. § 61.13(3). Indeed, we have insisted that "this consideration must govern even in the face of a party's procedural defaults or contumacious conduct." Rahall v. Cheaib-Rahall, 937 So. 2d 1223, 1225 (Fla. 2d DCA 2006) ("[A] parent's actions in the lawsuit cannot trump the child's right to have custody decided based on his or her best interests."). We are not convinced that the trial court considered the child's best interests. See Hassenplug v. Hassenplug, 346 So. 3d 149, 152 (Fla. 2d DCA 2022) ("[T]he child's best interests are the polestar guiding the trial court's decisions in [child custody] matters." (citing Snyder v. Snyder, 685 So. 2d 1320, 1321 (Fla. 2d DCA 1996))). "The trial court's examination of the best interests of the child requires consideration of a nonexhaustive list of factors affecting the child's welfare and interests." Id. at 153 (citing § 61.13(3)). While "the trial court need not address each factor independently, 7 at a minimum, it must find that [modification] is in the best interests of the child. This finding must be stated on the record or contained in the final judgment." Id. (citing Clark v. Clark, 825 So. 2d 1016, 1017 (Fla. 1st DCA 2002)); Bader v. Bader, 639 So. 2d 122, 124 (Fla. 2d DCA 1994) (en banc). That finding is absent, here. Indeed, the Final Judgment of Modification's language leaves us with the unsettling conclusion that the trial court premised its decision on a procedural default. The trial court tersely observed that "a Default ha[d] been entered against [Ms. Salazar] . . . and having been notified of this final hearing and electing not to attend," the trial court awarded relief to Mr. Dominguez. In Shewmaker, 283 So. 3d at 895-96, we recently reiterated: It is well-settled in Florida that . . . 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 8 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). (Alteration in original) (quoting Armstrong v. Panzarino, 812 So. 2d 512, 514 (Fla. 4th DCA 2002)). And, as we admonished in Andrews v. Andrews, 624 So. 2d 391, 392 (Fla. 2d DCA 1993), [d]ecisions affecting child custody require a careful consideration of the best interests of the child. § 61.13, Fla. Stat. (1991). This court has previously discouraged trial courts from using default as a sanction when dealing with the sensitive issue of child custody. Chase v. Chase, 519 So. 2d 637 (Fla. 2d DCA 1988). In such cases, the testimony of a child's natural mother will almost always aid the court in fairly determining the child's best interests. See Doane v. Doane, 279 So. 2d 46 (Fla. 4th DCA 1973). Although Ms. Andrews is an 9 ineffective and uncooperative litigant, she may still be the better parent for custody of the couple's two young children. Especially in the context of a modification of child custody, it would seem critical for the trial court to hear the full testimony of the parent who was initially granted custody. We stress, however, that in matters affecting the child's best interests, parties have no "license to abuse the judicial system." Jeffers v. McLeary, 118 So. 3d 287, 289 (Fla. 4th DCA 2013). A per se rule "compelling an automatic reversal of a final judgment . . . simply because a parent failed to appear at a final hearing would lead to all kinds of strategic game-playing and cause delay in the resolution of custody cases. This would be contrary to the best interest[s] of the child." Id. at 289-90 (quoting Denker v. Denker, 60 So. 3d 1104, 1107 (Fla. 4th DCA 2011)). Notably, our record does not reflect that Ms. Salazar abused the judicial system or engaged in legal brinksmanship. Instead, she diligently attempted to undo the Final Judgment of Modification. See Denker, 60 So. 3d at 1106 ("Custody determinations made by a court based on the default of one parent or on a parent's failure to appear at a final hearing are often reversed on appeal. This is because the general rules regarding defaults are insufficient for decisions affecting the custody of children. . . . This case, however, 10 was not decided upon a default but upon a full hearing with witnesses and substantial evidence. The mother simply failed to show up at the hearing. She did not move to vacate the proceedings pursuant to [rule] 1.540(b) and has offered no reason, either in the trial court or in this court, as to why she absented herself from the hearing after receiving notice."). Conclusion We reverse the Final Judgment of Modification and related child support order and remand for further proceedings consistent with this opinion. Reversed and remanded. NORTHCUTT and KELLY, JJ., Concur. Opinion subject to revision prior to official publication. 11