ROBERT A. LATHROP, APPELLANT,
v.
DORINDA E. LATHROP, APPELLEE
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The court held that the ex-husband waived his right to contest paternity by failing to raise the issue before the final judgment of dissolution was entered, despite having prior doubts.
The ex-husband doubted paternity before the final dissolution judgment, ordered inconclusive blood tests, and signed a stipulation agreeing he was the…
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PER CURIAM.
In this appeal, the ex-husband argues that the trial court erred in denying his motion under rule 1.540(b) for partial relief from final judgment of dissolution of marriage. We affirm.
The ex-husband mainly argues that the ex-wife committed a fraud on the issue of paternity. We do not agree because our review of the record convinces us that while the dissolution proceeding was still pending, he already had doubts over whether he was the father of the child in question due to rumors he had heard. Before the dissolution was final, he ordered blood tests, which were inconclusive.
However, the ex-husband did not take the additional step of obtaining HLA testing pri-or to entry of the final judgment of dissolution of marriage. In fact, he signed a stipulation and agreement that indicated he was the father of the child in question. The final judgment incorporated this stipulation by reference. Only several months after entry of final judgment did he decide to seek HLA testing.
We recognize that our affirmance may have the harsh result of requiring the ex-husband to pay child support for a child that may have been fathered by another man. However, the fact remains that for reasons known only to the ex-husband, he chose not to contest paternity before entry of final judgment although at the time he had reason to believe that he might not have been the child’s father. Under this circumstance, he should have raised the paternity issue prior to entry of final judgment of dissolution of marriage. Miller v. Cowart, 546 So. 2d 768 (Fla. 2d DCA 1989).
DANAHY, A.C.J., SCHOONOVER, J., and GALLEN, THOMAS M., Associate Judge, concur.
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State v. Sullivan, 727 So. 2d 1085 (Fla. 2d DCA 1999)…rt, a trial court does not have jurisdiction to set aside a judgment of paternity more than one year after its rendition, even where a private blood test suggests that the party is not the biological fáther. 691 So. 2d at 12. See Lathrop v. Lathrop, 627 So. 2d 1317 (Fla. 2d DCA 1993); Miller v. Cowart, 546 So. 2d 768 (Fla. 2d DCA 1989). In the present case,, there was no showing of fraud on the court. Therefore, it was error for the trial court to find that Sullivan was not the biological father of the child.…
Authorities Cited
- Michelle Miller & the Fla. Dep't of Health & Rehabilitative Servs. v. Cowart, 546 So. 2d 768 (Fla. 2d DCA 1989)