***NOT FOR PUBLICATION***
DISSENT BY ACOBA, J., IN WHICH
DUFFY, J., JOINS
The February 8, 2005 order denying the motion to set aside the default
of Mother-Appellant is arguably an appealable final order because it
finally determined the
matter of Mother's default at the permanent custody hearing. In this
case, Mother
was apparently defaulted for being about an hour-and-a-half late and
the permanent
custody hearing proceeded after default. Mother moved that same day to
set aside
the default. It cannot be concluded reasonably that the family court's
award of
permanent custody was not based on Mother's default, and that,
therefore, the
issue of Mother's default will not affect the award of permanent
custody. For if
Mother's default is set aside, the permanent custody hearing could not
proceed
without her participation. That being the case, the permanent custody
order would
have to be vacated. Thus, an appellate court ruling on the issue of
Mother's
default will indeed affect the award of permanent custody. Mother's
motion for
reconsideration of the order dismissing her appeal, then, should be
granted.