M.A.F., APPELLANT,
v.
G.L.K., APPELLEE
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Concealment of a husband's non-paternity in a divorce proceeding involving child support constitutes extrinsic fraud, and the husband's petition to vacate is not barred by res judicata or the one-year limitation.
[1] Concealment by a wife in a divorce proceeding of the fact that the husband is not the biological father of the children constitutes extrinsic fraud upon the court when th…
[2] A husband is entitled to presume he is the father of his wife's children and has no affirmative duty to question the legitimacy of children during a divorce absent a soun…
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Join FLexlaw to unlock all legal intelligenceThe former wife appealed a judgment vacating child support provisions based on the husband's petition. The wife had concealed the fact that the husban…
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SHIVERS, Chief Judge.
The former wife appeals a final judgment granting her former husband’s petition to vacate the child support provisions of a settlement agreement which was incorporated into their 1982 final judgment of dissolution. Appellant is the mother of the three children born during the couple’s marriage. The trial court found the former wife’s “concealment from the Husband of the fact that he is not the biological father of the children constitutes extrinsic fraud.” We affirm.
The legitimacy of children born during the marriage is “one of the strongest re-buttable presumptions known to the law....” Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (Fla.1944). The wife admits, however — and Human Leukocyte Antigen Blood Grouping testing confirms— that the husband is not the father of any of the three children. The record reveals competent, substantial evidence that at the time of the parties’ divorce, the husband had no doubts about being the children’s father. The wife knew he was not the father and she concealed that fact until approximately four years after the divorce.
A husband is entitled to presume he is the father of his wife’s children. A husband has no affirmative duty in a divorce proceeding to question the virtue of his wife and the legitimacy of his children absent a sound basis to doubt otherwise. We therefore hold that when a wife knows that her husband is not the father of her children, and the husband does not know, concealment of that knowledge in a divorce proceeding involving child support is extrinsic fraud upon the court. The husband’s petition was not barred by the doctrine of res judicata or the one year limitation of actions provision of Florida Rule of Civil Procedure 1.540(b). See DeClaire v. Yohanan, 453 So. 2d 375 (Fla.1984).
We conclude that the trial court did not abuse its discretion by refusing to require the former wife to reimburse monies already paid toward child support when there is no evidence that the funds paid were used for purposes other than support.
AFFIRMED.
JOANOS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Parker v. Parker, 950 So. 2d 388 (Fla. 2007)…BELL, J. We have for review Parker v. Parker, 916 So. 2d 926 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict with the First District Court of Appeal’s decision in M.A.F. v. G.L.K., 573 So. 2d 862 (Fla. 1st DCA 1990).1 The conflict issue is whether a wife’s misrepresentation of paternity in a dissolution of marriage proceeding is extrinsic or intrinsic fraud. This differentiation is significant because of the one-year limitation for filing a…
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Robbie Lefler v. Lefler, 776 So. 2d 319 (Fla. 4th DCA 2001)…ort. See also Wescott v. Wescott, 444 So. 2d 495 (Fla. 2d DCA 1984) (former husband’s alleged perjury at the dissolution hearing regarding his income and assets found to be classic example of intrinsic fraud). We recognize that in M.A.F. v. G.L.K., 573 So. 2d 862 (Fla. 1st DCA 1990), the district court determined that the wife’s concealment of the true parentage in that case constituted extrinsic fraud upon the court, such that the husband’s petition to set aside would not be barred by res judi-cata or the o…
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Pitcairn v. Francine Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991)…ed a situation where a presumed father used the presumption toward retaining his parental relationship where the mother sought to establish that someone else was the father. Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (1944), M.A.F. v. G.L.K., 573 So. 2d 862 (Fla. 1st DCA 1990), Blitch v. Blitch, 341 So. 2d 251 (Fla. 1st DCA 1976), and M.P.S.H. v. D.H., 516 So. 2d 1151 (Fla. 4th DCA 1987), involved situations where the mother used the presumption in attempting to prevent the husband from avoiding the re…1 / 2
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)
- Eldridge v. Eldridge, 153 Fla. 873 (Fla. 1944)