Anderson v. Anderson, 98-04452.

• Decision Date: 10 December 1999
• Docket Number: No. 98-04452.,98-04452.
• Citation: 746 So.2d 525
• Parties: Michael ANDERSON, Appellant, v. Cathy ANDERSON, Appellee.
• Court: Florida District Court of Appeals

746 So.2d 525

Michael ANDERSON, Appellant, v. Cathy ANDERSON, Appellee.

No. 98-04452.

District Court of Appeal of Florida, Second District.

December 10, 1999.

Catherine M. Catlin of Catherine M. Catlin, P.A., Tampa, and Raymond T. Elligett, Jr. of Schropp, Buell & Elligett, P.A. Tampa, for Appellant.

Thomas D. Casper, Tampa, for Appellee.

CARLIN, JOHN S., Associate Judge.

Michael Anderson appeals a final judgment denying him relief after he filed a motion pursuant to Florida Family Law Rule of Procedure 12.540(b). The circuit court found that he had not proven fraud so as to entitle him to the requested relief. We agree that he was not entitled to the relief he sought based upon the evidence presented, and affirm. We also certify conflict with DeRico v. Wilson, 714 So.2d 623 (Fla. 5th DCA 1998).

The following evidence was adduced at the hearing before the general master. Michael and Cathy Anderson were married when Cathy was already pregnant. Cathy thought the baby was Michael's and had told him so. About a year and a half after their daughter was born, Cathy petitioned for dissolution. During the pendency of the dissolution proceedings, and sometime prior to the first hearing in this matter in June, 1996, Cathy's sister alerted Michael to the fact that Cathy, unbeknownst to him, had been married before and had a son from a relationship prior to that. When Michael, after the June hearing, confronted Cathy with this information, he also asked her if their daughter was his. Cathy denied having been married before and also said he was the father of their child. She added that if he doubted her, he could "check it out," thus implying that he could have a paternity test done. Michael had secured a copy of the prior marriage certificate so he knew Cathy had been untruthful about the prior marriage. He did not question his own paternity further and the dissolution proceedings continued through another hearing in October, 1996; the final judgment was filed in December, 1996.

Soon thereafter, problems arose. Cathy allegedly interfered with Michael's court-ordered visitation. Michael then submitted himself and his daughter to DNA testing. The results excluded him as the biological father. At the end of May, 1997, Michael filed a motion, pursuant to Rule 12.540, for relief from the dissolution judgment and his duty to pay child support. An evidentiary hearing was held, at which Cathy continued to maintain that Michael was the father of their daughter.

The circuit court adopted the carefully reasoned recommendation of the general master, which noted that all the information which led Michael to suspect his paternity was known to him at the time of the June, 1996, hearing as well as at the time of the final hearing in October, 1996. Further, no information came to his attention after the final judgment was entered that he did not have before. Although Michael testified that he had no doubt that he was the biological father, even at the time he was obtaining the DNA testing, the general master concluded that some nagging suspicion obviously prompted him to obtain the DNA testing anyway. Because Michael had no information post-dissolution that he did not have pre-dissolution regarding what he viewed as his former wife's deceptions, the general master found Michael was barred from setting aside the final judgment based on fraud, mistake, inadvertence, or newly discovered evidence. The general master concluded that while the DNA test results were...