STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES OFFICE OF CHILD SUPPORT ENFORCEMENT, APPELLANT,
v.
LARRY ALPHONSO WRIGHT, APPELLEE
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The court held that a party cannot relitigate paternity after a final judgment of dissolution when paternity was not contested at the time of the judgment.
[1] A final judgment of dissolution of marriage that resolves the issue of paternity is res judicata and cannot be reopened years later on the basis of an alleged biological…
[2] Florida Rule of Civil Procedure 1.540(b)(5), allowing relief from a judgment when it is no longer equitable that it have prospective application, applies to equities aris…
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Join FLexlaw to unlock all legal intelligenceFollowing a final judgment of dissolution of marriage where paternity was not contested, the appellee later asserted he was not the biological father …
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GRIMES, Acting Chief Judge.
Appellant appeals from a nonfinal order entered nine years subsequent to a final judgment of dissolution of marriage requiring a Human Leukocyte Antigens blood test to determine paternity.
Final judgment of dissolution of marriage of the wife, Joyce Wright, and appel-lee, Larry Wright, was entered on February 5, 1976. By the terms of the decree, the wife was awarded custody of “the minor child born of the marriage.” Appellee was ordered to pay child support. At the time of dissolution, neither party contested the issue of paternity nor appealed the final judgment.
In 1985, appellant, HRS, initiated an action on behalf of the wife for an increase in child support. In defending the petition for modification of the final judgment, appellee asserted for the first time that he was not the biological father of the child. In support of denial of paternity, appellee submitted affidavits signed by Rudolph Harris, Jr., and Joyce Wright acknowledging that Harris was the child’s biological father. The court ordered the wife and the child to submit to blood tests for the purpose of determining paternity. HRS appealed.
We treat this as a petition for certiorari as we did in Department of Health & Rehabilitative Services ex rel. Lara v. Lara, No. 86-638 (Fla. 2d DCA Oct. 8, 1986) [11 F.L.W. 2178], and Johnson v. Johnson, 395 So. 2d 640 (Fla. 2d DCA 1981). In those cases, as here, the final judgment of dissolution resolved the issue of paternity. Therefore, the issue is res judicata.
Appellee's reliance upon Florida Rule of Civil Procedure 1.540(b)(5) which states that a party may be relieved from a final judgment when “it is no longer equitable that the judgment or decree should have prospective application” is misplaced. This provision contemplates equities that have arisen after the final judgment rather than those which would have been defenses to the action. Hensel v. Hensel, 276 So. 2d 227 (Fla. 2d DCA 1973).
On the authority of Lara and Johnson, we quash the order and remand for further proceedings.
CAMPBELL and SCHOONOVER, JJ., concur.
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In re Guardianship of Theresa Marie Schiavo v. Schiavo, 792 So. 2d 551 (Fla. 2d DCA 2001)…. Because the order was appealable, the trial court simply did not specify the date and time for this mandated action. . In many cases, courts have determined the rule to be inapplicable. See, e.g., State, Dep’t of Health & Rehab. Servs. v. Wright, 498 So. 2d 1008 (Fla. 2d DCA 1986) (refusing to apply rule where basis for motion was potential defense to underlying action; rule contemplates equities arising after final judgment); Gregory v. Connor, 591 So. 2d 974 (Fla. 5th DCA 1991) (same); Ellis Nat’l Bank v.…
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D.F. v. Dep't OF Revenue ex rel. L.F., 736 So. 2d 782 (Fla. 2d DCA 1999)…1980). We simply hold that he is barred by res judicata due to the judgment of dissolution. See State, Dep’t of Health & Rehabilitative Servs. v. Robison, 629 So. 2d 1000 (Fla. 3d DCA 1993); State, Dep’t of Health & Rehabilitative Servs. v. Wright, 498 So. 2d 1008 (Fla. 2d DCA 1986); Johnson v. Johnson, 395 So. 2d 640 (Fla. 2d DCA 1981). Nothing in Daniel or Department of Health & Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla.1993), changes the law announced in Johnson, Wright, and Robison. This co…
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Fla. Dep't OF Revenue ex rel. R.A.E. v. M.L.S., 756 So. 2d 125 (Fla. 2d DCA 2000)…quiring "clear and compelling reason” based primarily upon child's best interests to overcome presumption of legitimacy). . There is little case law on this provision. Nonetheless, in State, Department of Health & Rehabilitative Services v. Wright, 498 So. 2d 1008 (Fla. 2d DCA 1986), we denied a husband’s request to set aside a final judgment of dissolution of marriage that ordered him to pay child support when he claimed, for the first time, that he was not the child's biological father. We reasoned that Flo…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Johnson, 395 So. 2d 640 (Fla. 2d DCA 1981)
- Hensel v. Hensel, 276 So. 2d 227 (Fla. 2d DCA 1973)