15 So.3d 908 (Fla.App. 4 Dist. 2009), 4D08-3612, Daniels v. Greenfield

Docket Nº:4D08-3612.
Citation:15 So.3d 908, 34 Fla. L. Weekly D 1568
Opinion Judge:WARNER, J.
Party Name:Dorothea DANIELS, as Personal Representative of the Estate of Shea Daniels, deceased, Appellant, v. Jonathan GREENFIELD, M.D., Jonathan Greenfield, M.D., P.A., and Tenet St. Mary's, Inc., Appellees.
Attorney:Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellant. Lawrence E. Brownstein of Lawrence E. Brownstein, P.A., West Palm Beach, for appellees Jonathan Greenfield, M.D. and Jonathan Greenfield, M.D., P.A. Robert S. Covitz and Norman M. Waas of Falk...
Judge Panel:POLEN and TAYLOR, JJ., concur.
Case Date:August 05, 2009
Court:Florida Court of Appeals, Fourth District
 
FREE EXCERPT

Page 908

15 So.3d 908 (Fla.App. 4 Dist. 2009)

34 Fla. L. Weekly D 1568

Dorothea DANIELS, as Personal Representative of the Estate of Shea Daniels, deceased, Appellant,

v.

Jonathan GREENFIELD, M.D., Jonathan Greenfield, M.D., P.A., and Tenet St. Mary's, Inc., Appellees.

No. 4D08-3612.

Florida Court of Appeal, Fourth District.

August 5, 2009

Page 909

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellant.

Lawrence E. Brownstein of Lawrence E. Brownstein, P.A., West Palm Beach, for appellees Jonathan Greenfield, M.D. and Jonathan Greenfield, M.D., P.A.

Robert S. Covitz and Norman M. Waas of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appellee Tenet St. Mary's, Inc.

WARNER, J.

The personal representative of the estate of Shea Daniels appeals a summary judgment which determined that Daniels's son, Javon Daniels, was not a survivor under the Wrongful Death Act, because at the time of Javon's birth, his mother was married to another man, although the mother had not seen her husband for several years. We hold that under the unique circumstances of this case, the court erred in determining as a matter of law that the child is not a survivor in accordance with the wrongful death statute. We reverse.

Page 910

Javon Daniels was born to Rozine Cerine and the decedent, Shea Daniels. Rozine had been married to Willie Washington in 1999, but they separated in 2000 when Washington moved away and joined the military. She met Shea in May 2000, and Javon was born in September 2001. Shea's name was listed on the birth certificate as the father.

Shea and Rozine had a difficult relationship, but he supported Rozine and Javon by paying support of $50-70 per week. He also bought clothes for Javon. His mother, Dorothy, visited with Javon on occasion.

Rozine filed a petition to determine paternity and for child support against Shea in October 2004. Shea answered, demanding a DNA test, which was ordered but never conducted because Shea failed to appear. He was defaulted in the paternity proceeding, but a judgment establishing paternity was never entered. In November 2004, Rozine obtained a divorce from Willie Washington. The record does not contain a copy of the divorce decree.

Shea committed suicide in 2005, and his mother brought a wrongful death action on behalf of Javon against a psychiatrist and hospital. Both answered and claimed that Javon was not a survivor, because the presumption of legitimacy required that Willie Washington be deemed Shea's legal father. Thus, Javon could not be a survivor of Shea.

During the proceedings, the plaintiff conducted a paternity test which showed that Shea was the biological father of Javon. Although the court questioned whether such a test should have been authorized, it had granted a continuance for the plaintiff to obtain the test. The test merely confirmed what the birth certificate already recorded. Shea was Javon's father.

Despite the evidence supporting the fact that Shea was not only the biological father but also the only father that Javon knew, the court held that because Rozine was married to Willie Washington when Javon was born, the presumption of legitimacy required it to declare as a matter of law that Washington was Javon's legal father in the wrongful death action. The court granted the motion, excluding Javon as a survivor of his biological father. It also refused a request to abate the wrongful death action to permit a paternity action to be instituted to declare Shea's paternity of Javon. The personal representative appeals.

The personal representative argues that the trial court erred in refusing to allow her to prove that the decedent was Javon's father, because resolution of paternity may occur in a wrongful death case. The appellees contend that the trial court correctly granted summary judgment because the child was born during the mother's marriage to another man who, by operation of law, was the legal father of the child and his parental rights had not been legally divested. We hold that the presumption is not a conclusive presumption and the issue of survivorship is to be determined in the wrongful death proceeding.

Florida's Wrongful Death Act is codified in sections 768.16-768.26, Florida Statutes. The purpose of the Wrongful Death Act is to...

To continue reading

FREE SIGN UP