GWENDOLYN STREATER, APPELLANT,
v.
ROGER STAMPER, APPELLEE
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Appellant Streater challenges an order vacating a paternity judgment against appellee Stamper. The court erred in granting Stamper's second Rule 1.540(b) motion for relief based on fraud and perjury allegations, as the motion was untimely under the one-year limitation period and barred by res judicata.
The trial court erred in granting the motion. Rule 1.540(b) imposes a one-year limitation period for motions based on intrinsic fraud such as perjury. The second motion was untimely, and the denial of the earlier motion did not effect a continuance thereof. Additionally, res judicata barred relitigation of issues previously decided.
[1] A motion for relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party must be made within one year after the judgment, decree, orde…
[2] A court may entertain an independent action for relief from judgment, but such action cannot be predicated upon an assertion of intrinsic fraud, such as perjury.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 1.540(b) expressly provides that a motion for relief from judgment upon an assertion of fraud, misrepresentation, or other misconduct of an adverse party, must be made 'not more than one year after the judgment, decree, order or proceeding was entered or taken.'”
Establishes the controlling one-year limitation period for Rule 1.540(b) motions based on fraud.
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Join FLexlaw to unlock all legal intelligenceIn July 1982, a final paternity judgment determined that Stamper is the biological father of Streater's child. Although Stamper denied sexual intercou…
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WENTWORTH, Judge.
Appellant seeks review of an order which granted appellee’s Fla.R.Civ.P. 1.540(b) motion and vacated a prior adjudication of paternity. We find that the court erred in granting the motion and vacating the prior judgment, and we therefore reverse the order appealed.
By a final judgment of paternity rendered in July 1982, it was determined that appellee is the biological father of appellant’s minor child. Although appellee maintained that he had not had sexual intercourse with the child’s mother, appellant testified to the contrary and an HLA blood test indicated a 96.7% probability that appellee is the child’s biological father.
In November 1982 appellee filed a Fla.R.Civ.P. 1.540(b) motion for relief from judgment, asserting that the paternity adjudication had been obtained by fraud, misprese-ntation, and perjury. Appellee further asserted that a polygraph test would corroborate his denial of sexual intercourse. After hearing argument on the motion the court found that the evidence was insufficient to warrant the requested relief “at this time,” and appellee’s motion was denied. A motion for rehearing was denied.
Appellee filed another Rule 1.540(b) motion in August 1983, reiterating the allegations of the earlier motion and further requesting that the court require a new HLA test. Appellant moved to dismiss the motion as untimely and repetitious, but the court' indicated a concern that one of the parties may have committed perjury and granted the motion, ordering that the paternity adjudication be “set aside and this matter re-opened for the purpose of running an additional blood test.”
Rule 1.540(b) expressly provides that a motion for relief from judgment upon an assertion of fraud, misrepresentation, or other misconduct of an adverse party, must be made “not more than one year after the judgment, decree, order or proceeding was entered or taken.” While the rule further recognizes that the court may nevertheless entertain an independent action for relief, such action may not be predicated upon an assertion of intrinsic fraud (such as perjury); rather, the fraud asserted must be extrinsic to the judgment. Westcott v. Westcott, 444 So. 2d 495 (Fla. 2d DCA 1984).
In the present case appellee’s motion was clearly foundationed upon an assertion of intrinsic fraud, and it is thus subject to the one-year limitation period provided by Rule 1.540(b).
Cf., Kimbrough v. McCranie, 325 So. 2d 70 (Fla. 1st DCA 1976).
Although the court suggested that the August 1983 motion might be considered as “a continuation and renewal” of appellee’s earlier motion, the court’s denial of the earlier motion did not effect a continuance thereof. See generally, Malicoat v. LaChappelle, 390 So. 2d 481 (Fla. 4th DCA 1980).
Also, to the extent that the 1983 motion merely renews the allegations upon which relief was previously denied, the doctrine of res judicata precludes relitigation of the issue presented. See Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971); cf, Malicoat, supra. The court thus erred in entertaining appellee’s untimely motion and granting the relief requested.
The order appealed is reversed.
THOMPSON and WIGGINTON, JJ., concur.
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State v. Bailey, 603 So. 2d 1384 (Fla. 1st DCA 1992)…dgment or decree is void[.] Under Rule 1.540(b), a party is generally precluded from bringing a successive motion which merely alleges matters which were or could have been alleged in the initial motion for postjudgment relief. Streater v. Stamper, 466 So. 2d 397 (Fla. 1st DCA 1985); Perkins v. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971). Initially, we note that the trial court’s award of prejudgment interest was clearly erroneous under Section 768.28(5). While we are at a loss to understand why DOT failed to…
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Dep't OF Revenue v. Boswell, 915 So. 2d 717 (Fla. 5th DCA 2005)…srepresentation made by mother in connection with sworn complaint to establish paternity was at most intrinsic fraud); Zuckerman v. Alex Hofrichter, P.A., 630 So. 2d 210 (Fla. 3d DCA 1993) (misrepresentation is intrinsic fraud); Streater v. Stamper, 466 So. 2d 397 (Fla. 1st DCA 1985) (perjury committed in connection with paternity judgment was intrinsic fraud). See also Department of Revenue v. Harris, 684 So. 2d 231 (Fla. 2d DCA 1996); DeVaughn v. Department of Revenue, 691 So. 2d 11 (Fla. 4th DCA 1997). Po…
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Oakdell, Inc. v. Gallardo, 505 So. 2d 672 (Fla. 1st DCA 1987)…such person’s lack of due diligence. Contrast Florida Rule of Civil Procedure 1.540(b), requiring that an action for relief from a judgment based on intrinsic fraud2 be made within one year from the date of the judgment entered. Streater v. Stamper, 466 So. 2d 397 (Fla. 1st DCA 1985); DeClaire v. Yohanan, 453 So. 2d 375 (Fla.1984). In summary, we reverse the award of PTD in Case No. BK-284, reverse the denial of the motion to modify or set aside the order in Case No. BP-46, and remand both causes to the depu…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. Zack A. Salem, 249 So. 2d 466 (Fla. 1st DCA 1971)
- In the Interest of C. E. M., 390 So. 2d 481 (Fla. 4th DCA 1980)
- Morrison Kimbrough & Pace Fin. Co., Inc. v. McCRANIE, 325 So. 2d 70 (Fla. 1st DCA 1976)
- Wescott v. Wescott, 444 So. 2d 495 (Fla. 2d DCA 1984)