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.
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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).
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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 
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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.