DEREK SCHENAVAR v. REBECCA SCHENAVAR

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEREK SCHENAVAR,
Appellant,
v.
REBECCA SCHENAVAR,
Appellee.
No. 4D21-2811
[November 9, 2022]
Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case
No. 502020DR007700XXXXNB.
L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellant.
Kate E. Watson of the Watson Law Firm, P.A., Jupiter, for appellee.
PER CURIAM.
This appeal and cross-appeal arise from a final judgment of dissolution
of marriage. We reverse in part and remand for an evidentiary hearing on
the wife’s motion to set aside the final judgment.
The parties were married in 2006 and have two children. The husband
filed a three-count petition for dissolution of marriage in 2020. The wife
failed to answer the petition and a default was entered against her.
On August 16, 2021, the trial court conducted a hearing on the
husband’s petition. The husband was represented by counsel. The wife
did not appear.
The husband testified about the marriage and the wife’s issues. He
said that even though the parties lived together with the children, the wife
was detached, disassociated, and disengaged. The children are
homeschooled by a private tutor at the husband’s office and the husband
said that he carries the lion’s share of the child rearing duties. The
husband presented a financial affidavit and asked the court to award his
business to him as a non-marital asset.
On August 27, 2021, the court entered a final judgment of dissolution
of marriage. Among other things, the court found that the wife was not in
good mental and/or physical health, and that the husband’s opinion that
the wife was in good health and that her behaviors were “voluntary” was
not credible. As best it could, based on the limited evidence, the trial court
made other findings regarding the marital home, rental property, and
equitable distribution.
The husband moved for rehearing on certain issues. On September 13,
2021, now represented by counsel, the wife moved to set aside the final
judgment pursuant to Florida Family Law Rules of Procedure 12.530 and
12.540. She alleged that she had been suffering from diminished mental
capacity that was not known to her family until she moved out of the
marital home on September 3, 2021. On that day, she gave her sister a
power of attorney to act on her behalf regarding the dissolution proceeding,
her medical treatment, and her finances.
The wife’s motion alleged that her medical record indicated that she
had cognitive difficulties and an MRI showed “brain damage, most likely
attributable to chronic microvascular ischemic disease.” She asserted that
as a result of these severe mental difficulties, her failure to participate in
the proceeding should be viewed as excusable neglect. The wife stated
that with the help from her sister in seeking medical care and evaluation,
and with the assistance of counsel, she would be able to participate in the
dissolution proceeding.
In support of the motion, the sister’s affidavit described the wife’s
conduct during the marriage. Only after obtaining the power of attorney
was the sister able to obtain the wife’s medical records that showed a
cognitive decline, later supported by a neurology consult and an MRI. The
sister attested that the wife would be staying with her or another sister
during the pendency of future medical evaluations and the remainder of
the legal proceedings.
On September 23, 2021, without a hearing, the court granted in part
and denied in part the husband’s motion for rehearing. The trial court
denied the wife’s motion to vacate the final judgment without comment.
We agree with the husband that the final dissolution judgment is
deficient in four respects.
First, the judgment fails to set forth the time-sharing schedule required
by section 61.13(2)(b)2., Florida Statutes (2020).
2
Second, the judgment fails to set child support consistent with section
61.30, Florida Statutes (2020).
Third, the judgment failed to determine which party had the right to
claim the federal income tax exemption for each of the minor children. See
§ 61.30(11)(a), Fla. Stat. (2020).
Fourth, the final judgment failed to apportion the cost of health
insurance and uncovered health-related expenses for the minor children.
See § 61.13(1)(b), Fla. Stat. (2020).
In the event that the trial court denies the wife’s motion to set aside the
final judgment, see infra, the court shall address these four issues. The
wife shall be able to participate in such a limited proceeding. In a
dissolution case, it is difficult for a court to decide what is in the best
interest of children without input from both parents.
Regarding the wife’s cross-appeal, we reverse for the court to hold an
evidentiary hearing on the wife’s motion to set aside the final judgment.
The motion and attachments assert facts that are consistent with the trial
court’s skepticism about the husband’s characterization of the wife’s
mental and physical condition. Because the wife alleged a colorable
entitlement to relief, the court should not have summarily denied her
motion. See Romero v. Brabham, 300 So. 3d 665, 667 (Fla. 4th DCA 2020)
(reversing order denying former wife’s rule 12.540 motion to vacate
because such motions “should not be summarily dismissed without an
evidentiary hearing unless its allegations and accompanying affidavits fail
to allege ‘colorable entitlement’ to relief” (quoting Schuman v. Int’l
Consumer Corp., 50 So. 3d 75, 77 (Fla. 4th DCA 2010)); Se. Termite & Pest
v. Ones, 792 So. 2d 1266, 1267–68 (Fla. 4th DCA 2001) (remanding for an
evidentiary hearing before disposing a motion to vacate a clerk’s default
“where the contents of an affidavit supporting a defendant’s contention of
insufficiency of service would, if true, invalidate the purported service and
nullify the court’s personal jurisdiction over the defendant”); Burke v.
Soles, 326 So. 3d 83, 84 (Fla. 4th DCA 2021) (remanding with instructions
to either “conduct a limited evidentiary hearing on [pro se motion for
rehearing] or grant the requested relief” where the motion “sets forth a
colorable entitlement to relief based on excusable neglect”); Cedar
Mountain Ests., LLC v. Loan One, LLC, 4 So. 3d 15, 17 (Fla. 5th DCA 2009)
(holding that a facially sufficient motion to vacate alleging “(1) excusable
neglect; (2) a meritorious defense; and (3) due diligence” “cannot be
summarily denied without affording the movant an evidentiary hearing”);
Richards v. Crowder, 191 So. 3d 524, 525 (Fla. 4th DCA 2016) (reversing
3
and remanding for an evidentiary hearing as “Florida courts have
recognized that illness or psychological conditions . . . can form the basis
of a finding of excusable neglect warranting relief from judgment”).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
GROSS, DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4