By a motion to vacate filed pursuant to Rule 1.540, R.C.P., appellant sought to vacate an order (entered subsequent to final dissolution of marriage) which awarded custody of appellant’s two minor children to their mother, appellant’s former wife. Appellant’s motion alleged that due to his attorney’s negligence or excusable neglect, appellant had not been afforded an opportunity to be heard on the issue of child custody though he had sought such hearing.
The order appealed, though denying a further stay of the-prior custody order, did provide that appellant would be granted a further evidentiary hearing for the purpose of presenting evidence in rebuttal to the Division of Family Services report upon which the trial court had relied in entering the original custody order. Appellant would not need to rebut those portions of the report favorable to him, and the opportunity to present evidence “in rebuttal” to any portions unfavorable to his position will adequately protect his rights. Such hearing is obviously for the purpose of allowing the court, upon completion thereof, to make a determination as to whether the custody award theretofore made should be confirmed or should be modified in some respect.
The order appealed is affirmed without prejudice to the appellant’s right to seek the evidentiary hearing expressly provided for in the order.
Affirmed.
OWEN, C. J., and WALDEN and CROSS, JJ., concur.