BURKE v. REYES (1997)

District Court of Appeal of Florida,Third District.

Tara BURKE, Appellant, v. Tomas REYES, Appellee.

No. 96-336.

Decided: February 05, 1997

Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.

Bailey & Jones, Miami, and Elizabeth S. Baker, Orlando, for appellant. Catherine J. MacIvor, Franklin & Marbin, P.A., Miami, for Guardian Ad Litem. Philip L. Reizenstein, Miami, for appellee.

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, 573 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.

PER CURIAM.

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