PHYLLIS KENNELLY, PETITIONER,
v.
RICHARD E. DAVIS, RESPONDENT
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Florida Supreme Court upheld a summary judgment dismissing an unmarried mother's paternity action against the alleged father of her child conceived while she was married to another man. The Court held that Florida's paternity statute does not permit establishing paternity and obtaining support when the child was conceived during the mother's marriage, even if another man was the biological father.
The statute does not permit establishment of paternity and support for a child conceived during the mother's marriage to another man. The distinction between children conceived out of wedlock and those conceived during wedlock does not violate equal protection because the situations are vastly different: illegitimate children already have that status at birth, while children conceived during wedlock are presumed legitimate.
“Section 742.011, Fla.Stat., F.S.A., does not permit 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.”
States the Court's holding on the primary legal issue regarding the scope of the paternity statute
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Join FLexlaw to unlock all legal intelligencePhyllis Kennelly was married to John J. Kennelly in May 1963 and became pregnant in June 1967, while still married. She and her husband separated in M…
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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, Florida Constitution, F.S.A.
The facts as stated in the opinion of the District Court are:
“Phyllis Kennelly in a circuit court action filed pursuant to § 742.011, Fla.Stat., F.S.A., sought to establish that Richard E. Davis was the father of her unborn child. This appeal is from a summary judgment 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, 19§7. 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 hus*416band 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 District Court affirmed the lower court, holding that it would adhere to the holding of the Sanders case, supra.
The study of the cases and the statute leads us to conclude that Section 742.011, Fla.Stat., F.S.A., does not permit 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.
The question has been raised as to whether this interpretation may violate the equal protection clauses of both the Federal and Florida Constitutions in view of the fact that mothers of children conceived out of wedlock have a cause of action under the statute. There is no merit in this argument because the two situations are vastly different. Children who are both conceived and born to mothers who are unmarried already have the status of illegitimacy at the time of birth. Children who are conceived during wedlock or bom to their mothers while married are presumed to be legitimate.
The District Court of Appeal correctly decided the matter and its order is herewith affirmed.
It is so ordered.
DREW and ADKINS, JJ., and SPEC-TOR, District Court Judge, concur.
ROBERTS, Acting C. J., agrees to judgment.
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Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976)…defendant’s Motion to Dismiss, ordering and adjudging that Chapter 742, Florida Statutes, is not unconstitutional, either facially or as applied to the circumstances of this cause, citing as authority the opinions of this Court in Kennelly v. Davis, 221 So. 2d 415 (Fla.1969) and Brown v. Bray, 300 So. 2d 668 (Fla.1974). This appeal ensued. The issue squarely presented again to this Court, in light of our decision in Ken-nelly, supra, is whether the Legislature may constitutionally limit actions for determina…1 / 2
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G.F.C. v. S.G. and D.G., 686 So. 2d 1382 (Fla. 5th DCA 1997)….C.’s petition because Chapter 742 does not afford G.F.C. the statutory right to sue for paternity since the child in question here was not born “out of wedlock” and the paternity of the child had been “otherwise” established. See Kennelly v. Davis, 221 So. 2d 415 (Fla.), cert. denied, 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193 (1969). See generally, Purvis v. State, 377 So. 2d 674 (Fla.1979); Knauer v. Barnett, 360 So. 2d 399 (Fla.1978). We also reject G.F.C.’s claim of a constitutional right to assert pate…
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Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972)…ated in March 1968. Thereafter, respondent sporadically contributed support to the petitioner and his daughter. As noted above, the District Court of Appeal, Third District, reversed the Circuit Court. They did so on the basis of Kennelly v. Davis, 221 So. 2d 415 (Fla.1969). This was a paternity action brought under Fla.Stat. § 742.011, F.S.A., wherein a woman gave birth to a child conceived in, but born outside of, wedlock. The evidence tended to “[Establish a strong suspicion that Davis was the father of…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanders v. Yancey, 122 So. 2d 202 (Fla. 2d DCA 1960)
- Kennelly v. Davis, 216 So. 2d 795 (Fla. 3d DCA 1968)