793 So.2d 1013 (Fla.App. 5 Dist. 2001), 5D00-2486, Achumba v. Neustein

Docket Nº:Case No. 5D00-2486
Citation:793 So.2d 1013, 26 Fla. L. Weekly D 1659
Party Name:JASMINE ACHUMBA, ETC., Appellant, v. CHARLES L. NEUSTEIN, M.D., Appellee.
Case Date:July 06, 2001
Court:Florida Court of Appeals, Fifth District

Page 1013

793 So.2d 1013 (Fla.App. 5 Dist. 2001)

26 Fla. L. Weekly D 1659




Case No. 5D00-2486

Florida Court of Appeals, Fifth District.

July 6, 2001

Appeal from the Circuit Court for Marion County, Jack Singbush, Judge.

Page 1014

Martin J. Goldberg, Don Geier and A. Scott Toney, of Goldberg Law Office, Gainesville, for Appellant.

Kelly G. Hamer and M. Suzanne Christolini of Siboni, Hamer & Buchanan, P.A., Ocala, for Appellee.


Jasmine Achumba (Achumba), as personal representative of the estate of Larry Honor (Honor), deceased, appeals the trial court's summary judgment finding that Natre Smoot (Smoot) is not Honor's "survivor," as defined by the Florida Wrongful Death Act. 1 We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(k). Finding no error in the trial court's judgment, we affirm.

Achumba, Smoot's mother, was married to Ruebin S. Beckford (Beckford) at the time of Smoot's birth. Beckford was listed on Smoot's birth certificate as her father. Subsequent to Smoot's birth, Achumba and Beckford divorced. Achumba, in her capacity as personal representative of Honor's estate, brought a claim on behalf of Smoot pursuant to the Wrongful Death Act against Charles L. Neustein, M.D. (Neustein) contending that Neustein provided negligent medical treatment to Honor which resulted in his death.

In her complaint, Achumba alleges that Honor is Smoot's biological father, though Achumba and Honor were never married to each other. In support of her claim, Achumba produced a letter, purportedly signed by Honor, wherein he acknowledged paternity of Smoot. 2 Therefore, Achumba maintains that Smoot is entitled to recover under section 768.18 as Honor's "survivor." After answering the complaint, Neustein filed a motion for summary judgment arguing that Smoot could not be Honor's "survivor" pursuant to section 768.18(1), because she was born during the marriage between Achumba and Beckford, and Beckford is listed on Smoot's birth certificate as her father. 3 Achumba asserts that Smoot is a survivor pursuant to section 768.21(1), because she was born "out of wedlock of the father," and Honor recognized a responsibility for her support. For the following reasons, we disagree with Achumba's arguments.

Section 768.18(1) defines survivors thusly:

"Survivors" means the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child's support.

Because Smoot was born during the marriage of Achumba and Beckford, and Beckford is listed on Smoot's birth certificate as the father, there is a presumption of paternity in favor of Beckford. Contino v. Estate of Contino, 714 So.2d 1210, 1214 (Fla. 3d DCA 1998). Under Florida law, Beckford is Smoot's "legal father." 4 See Dep't of Health & Rehabilitative Servs. v.

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Privette, 617 So.2d 305, 307 (Fla. 1993). Hence, she was not, as asserted by Achumba, born "out of wedlock of the father." To recognize Honor as Smoot's father would necessarily impugn Beckford's parental rights. A child's legally recognized father has an unmistakable interest in maintaining the relationship with his child unimpugned. See id.; see also Santosky v. Kramer, 455 U.S. 745 (1982).

Historically, Florida's common law viewed any action challenging a child's legitimacy with great disfavor. G.F.C. v. S.G. & D.G., 686 So.2d 1382, 1384 (Fla. 5th DCA 1997). "There existed almost an irrebuttable presumption that the husband was the father of his wife's children, a presumption which could be overcome only upon a showing that the husband either was impotent or lacked access to...

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