Black v. Nesmith
| Decision Date | 10 September 1985 |
| Docket Number | No. BC-441,BC-441 |
| Citation | 10 Fla. L. Weekly 2092,475 So.2d 963 |
| Parties | 10 Fla. L. Weekly 2092 Gwendolyn BLACK and State of Florida, Department of Health and Rehabilitative Services, Appellants, v. Clifford NESMITH, Appellee. |
| Court | Florida District Court of Appeals |
Joseph R. Boyd, Susan S. Thompson and William H. Branch of Boyd, Thompson & Williams, P.A., and Chriss Walker, Tallahassee, for appellants.
Robert B. Persons, Jr., Jacksonville, for appellee.
Black and Department of Health and Rehabilitative Services (HRS) appeal from an order of the trial court granting Nesmith's motion to dismiss, with prejudice. We reverse.
On 17 March 1970, Black gave birth to a child. She was at that time married to John Black but claims that no sexual relations occurred with him at the time of the child's conception. The statute in effect at the time of the birth provided that:
Any unmarried woman who shall be pregnant or delivered of a child may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.
Section 742.011, Florida Statutes (1969), (emphasis supplied). The statute was amended in 1983, eliminating the term "unmarried."
On 1 May 1984, Black, with HRS, filed a Complaint to Determine Paternity against Nesmith, seeking child support and reimbursement to the State for past payments of welfare assistance to Black. Nesmith moved to dismiss the complaint, arguing that the statute at the time of the child's birth required the complainant to be unmarried and Black was then married. He contended that retrospective application of the 1983 amendment to permit the suit against him would be unconstitutional. The trial court agreed and dismissed the complaint with prejudice.
It is true, as Nesmith contends on appeal, that, in the absence of clear legislative expression to the contrary, a law is presumed to operate prospectively only. Van Bibber v. Hartford Accident and Indemnity Insurance Co., 439 So.2d 880 (Fla.1983). However, he neglects to recognize that the 1983 amendment of Section 742.011 was merely the legislative codification of an earlier judicial decision, Gammon v. Cobb, 335 So.2d 261 (Fla.1976), which held that the statute's limitation of the right to bring paternity actions to unmarried women was unconstitutional as a deprivation of equal protection. This decision overruled Kennelly v. Davis, 221 So.2d 415 (Fla.1969), cert. den. 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193 (1969). Therefore, the issue before us is not the propriety of the retrospective application of the amended statute, but rather the effect of Gammon, given the earlier holding in Kennelly.
The general rule regarding retroactivity of a decision of a court of last resort overruling a decision is that such a decision is retrospective as well as prospective in its operation unless declared by the opinion to have a prospective effect only. Department of Revenue v. Anderson, 389 So.2d 1034 (Fla. 1st DCA 1980); International Studio Apartment Assn., Inc. v. Lockwood, 421 So.2d 1119 (Fla. 4th DCA 1982). The Gammon decision makes no such declaration in fact, the woman involved was permitted to return to the trial court for further proceedings as a result of the decision.
Nesmith argues, however, that "where a statute has received a given construction by a court of superior jurisdiction and property or contract rights have been acquired under and in accordance with such construction, such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation." Department of Revenue, supra, citing Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251, 253 (1944) (emphasis supplied). We do not find that...
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