PHYLLIS KENNELLY, APPELLANT,
v.
RICHARD E. DAVIS, APPELLEE
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Phyllis Kennelly sought to establish that Richard E. Davis was the father of her child under Florida's paternity statute, even though she was married to another man when the child was conceived. The trial court entered summary judgment for Davis, and the appellate court affirmed, holding that an unmarried woman cannot use the paternity statute to establish paternity when she was married at the time of conception.
The court held that a woman may not use § 742.011 to establish paternity of a child conceived while she was married to another man, even if she was unmarried when the child was born. The court affirmed the summary judgment against Kennelly and adhered to the reasoning in Sanders v. Yancey.
“Any unmarried woman who shall be pregnant or delivered of a bastard child, may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.”
The statutory provision at issue defining who may bring paternity proceedings under § 742.011
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Join FLexlaw to unlock all legal intelligenceKennelly was married to John J. Kennelly on May 29, 1963, and they were divorced on July 26, 1967. The child was conceived in June 1967 while she rema…
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Phyllis Kennelly in a circuit court action filed pursuant to § 742.011, Fla.Stat.,1 F.S.A., sought to establish that Richard E. Davis was the father of her unborn child. This appeal is from a summary judgment2 in favor of Davis.
The appellant was married to John J. Kennelly on May 29, 1963. She was still married to him when the child was conceived in June 1967. They were divorced on July 26, 1967. The present suit was filed in the circuit court on December 13, 1967.
The appellant alleged in her complaint and subsequently in an affidavit that Davis is the only man with whom she had sexual intercourse in the year 1967. She further states that she engaged in sexual intercourse with Davis at various times in May, June, July, and August 1967. In his affidavit the former husband confirmed the dates of the marriage and divorce. In addition he averred that he had been separated from the appellant since March 1966 and that he had no sexual intercourse with her at any time in 1967. Davis deposed that he had sexual intercourse with the appellant several times in June 1967.
If these various statements are true, they establish a strong suspicion that Davis was the father of the appellant’s child. The decision of the trial judge was clearly based upon Sanders v. Yancey, Fla.App.1960, 122 So.2d 202. The parties agree that Sanders is “on all fours” with the present case.
The appellant’s first point is that the trial judge erred in entering the summary judgment because he misinterpreted the meaning of § 742.011. Under this point the appellant argues that “[a]s set forth * * * in Sanders * * *, the rule prohibiting an unmarried mother from *797bringing a paternity suit on behalf of her child, who was conceived during but born out of wedlock, is the combined product of statutory construction * * * based on an incomplete and misleading quote, and [a] common law rule * * * based on inappropriate policy and facts.” In her second point the appellant urges that for reasons of public policy, the statute should be interpreted to authorize her to prosecute her claim even .though she, was married when the child was conceived.3
After, considering the appellant’s contentions, we decided to adhere to the reasoning and the holding in the Sanders case. We summarized the arguments advanced because we have determined to certify our decision to the Supreme Court of Florida as one which passes upon a question of great public interest.
Affirmed.
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Citator
Cited By
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Smith v. Wise, 234 So. 2d 145 (Fla. 3d DCA 1970)…e pregnant or delivered of a bastard child, may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.” . See also, so holding, Illgen v. Carter, Fla.App.1960, 123 So. 2d 368; Kennelly v. Davis, Fla.App.1968, 216 So. 2d 795; aff’d. Kennelly v. Davis, Fla.1969, 221 So. 2d 415, cert. den. 396 Ü.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193. In the last fiited ease, the Supreme Court of Florida said: “The study of the eases and the statute lends us to conclude that Section 742.011…
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Kennelly v. Davis, 221 So. 2d 415 (Fla. 1969)…BOYD, Justice. The District Court of Appeal, Third District, has certified to us that its decision in the case of Kennelly v. Davis, 216 So. 2d 795, passes upon a question of great public interest “regarding the rights of unmarried mothers and the support of persons born out of wedlock.” We, therefore, have jurisdiction of the petition for certiorari herein pursuant to Section 4 (2), Article V,…
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Sacks v. Sacks, 254 So. 2d 572 (Fla. 3d DCA 1971)…it a woman to have her child declared illegitimate and thus receive support for said child from its putative father if she was married to another person at the time of conception.” Kennedy v. Davis, Fla.1969, 221 So. 2d 415, affirming Fla.App.1968, 216 So. 2d 795, cert. den. (1969), 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193. This court has emphasized that: “The mother of a child born in wedlock, or conceived while she was married (which includes a child born ‘within a competent time afterwards’), cannot ma…
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- Sanders v. Yancey, 122 So. 2d 202 (Fla. 2d DCA 1960)