Contino v. Estate of Contino, 97-2180

• Decision Date: 12 August 1998
• Docket Number: No. 97-2180,97-2180
• Citation: 714 So.2d 1210
• Parties: 23 Fla. L. Weekly D1870 Greg CONTINO, as Personal Representative of the Estate of Charles A. Contino, Appellant, v. In re The ESTATE OF Charles A. CONTINO, Appellee.
• Court: Florida District Court of Appeals

Page 1210

714 So.2d 1210

23 Fla. L. Weekly D1870

Greg CONTINO, as Personal Representative of the Estate of Charles A. Contino, Appellant, v. In re The ESTATE OF Charles A. CONTINO, Appellee.

No. 97-2180.

District Court of Appeal of Florida,

Third District.

Aug. 12, 1998.

Stephen N. Rosenthal, Miami; Mark C. Katzef, Aventura, for appellant.

Ronald E. Temkin, Hallandale; Charles Goldman, Hollywood, for appellee.

Before JORGENSON, COPE and GODERICH, JJ.

PER CURIAM.

Greg Contino, as Personal Representative of the Estate of Charles A. Contino, appeals from an order denying his petition for authorization for DNA blood typing, and from an order determining that Daniel Contino is a child of the decedent and entitled to take a share of the estate. We affirm.

In October 1996, Greg Contino filed a petition for administration of the estate of his father, Charles A. Contino, seeking to be named personal representative. The court appointed Greg Contino as personal representative, issued letters of administration, and issued a schedule of beneficiaries listing Greg Contino, Anthony Contino, Mark Contino, Christopher Contino, and Angela Massey as such.

In December 1996, Daniel Contino filed a Petition to Determine Heirs stating that he is a rightful heir of the decedent and attaching a copy of his Birth Certificate. Daniel Contino also filed a Motion to Remove Personal Representative alleging that Greg Contino had deliberately tried to exclude him from the estate. In March 1997, the court granted Daniel Contino's Petition to Appoint Guardian Ad Litem to Determine Heirs. Greg Contino filed an answer to the motion to remove personal representative and to the petition to determine heirs.

In May 1997, Greg Contino filed a Petition for Authorization of DNA Blood Typing, pursuant to sections 742.10 and 742.12, Florida Statutes (1997), stating that all of the beneficiaries denied that Daniel Contino was an heir. This motion was heard, and on June 13, 1997, the trial court entered an order denying the motion.

On June 13, 1997, the Guardian Ad Litem filed her Initial Report giving a detailed account of the underlying facts. The facts, as found by the Guardian Ad litem, are summarized below.

Charles A. Contino, the decedent, was married to Barbara Burkhalter on July 22, 1950. During their marriage, five children were born: Anthony, Mark, Christopher, Angela, and Daniel. ¹ Daniel was born on February 23, 1966, and Charles A. Contino is listed as Daniel's father on his birth certificate and on his baptism certificate.

In December 1966, Charles A. Contino filed a complaint for divorce against Barbara wherein he alleged that there were five children born of the marriage, one of which was Daniel. The complaint alleged that Barbara had "taken up an extra-marital relationship with a young man whom she has been meeting and seeing clandestinely...." The complaint further alleged that Barbara "is not a fit and proper person to care for the minor children of the parties." The parties executed a separation agreement wherein they agreed to the following relevant provisions:

3. The care, custody and control of the minor children of the parties, namely, Anthony, Mark, Christopher and Angela, shall be awarded to the Husband; that the Wife shall have the rights of reasonable visitation to and with said minor children....

4. That the care, custody and control of the infant child, Daniel, shall be awarded to the Wife; that the Husband shall have the rights of reasonable visitation to and with said minor child....

5. The Wife waives support moneys from the Husband for the care and maintenance of the minor child Daniel for the reason that the Wife disclaims the Husband's paternity and states that the Husband is not the natural father of said minor child, Daniel.

At the dissolution hearing, when Charles was asked about Daniel, "Mrs. Contino disclaims that the child is yours, is that correct?", he answered, "That is correct." Thereafter, the trial court entered a final judgment of divorce incorporating the parties' separation agreement.

After the final judgment was entered, Charles asked his attorney, Anthony Demos, to draft a last will and testament. The will provided, in pertinent part, as follows:

FIRST:

I hereby declare that I am divorced and that I have six (6) children, one by my first wife, and five by my second wife, namely: ANTHONY CONTINO, MARK CONTINO, CHRISTOPHER CONTINO, ANGELO [sic] CONTINO, GREGORY C. CONTINO, and DANIEL P. CONTINO.

SECOND:

I hereby specifically disinherit my son, DANIEL P. CONTINO, from taking any part or portion of my estate.

Although Attorney Demos called Charles on several occasions to come execute the will, Charles never did. When asked, Attorney Demos told the Guardian Ad Litem that Charles seemed reluctant to execute the will and that he believed that Charles never executed the will because he did not want to disavow Daniel.

The Guardian Ad Litem also considered letters that were allegedly written by Barbara's paramour. In these letters, Barbara's paramour seemed to acknowledge that Daniel was his child.

The Guardian Ad Litem conducted several interviews. She spoke with Daniel who stated that, until age 7, he had an ongoing relationship with Charles, despite living with his mother. He stated that, at age 7, he discovered a picture of his mother in which she was severely beaten. He suspected that Charles had caused the injuries, and he had little contact with Charles thereafter. In Daniel's teenage years, Charles asked him to help a sibling, and Daniel made himself available. In later years, he had little contact with Charles but maintained a relationship with some of his siblings. Daniel went to see Charles in the hospital when he was near death but was asked to leave by other family members. Daniel believes that the divorce proceedings were handled improperly, that his mother was not independently represented, and that she was mentally ill and in no condition to competently represent herself. Daniel believes that Charles is his natural father.

The Guardian Ad Litem also interviewed Mark Contino who characterized Daniel as an "opportunist." Mark believed that the extramarital affair from which Daniel was born was the cause of his parents' divorce. He claims that he was present when his mother told his father that Daniel was not his son. At his deposition, he stated, "I was in the living room at the time when my mother told my father, 'You love Danny very much, don't you? Well, let me tell you something, he is not your son.' "

He stated that Daniel was never invited to Christmas dinners and that he did not receive financial assistance from Charles. He also stated that on two occasions governmental entities contacted Charles in an attempt to establish responsibility for Daniel's support and that both agencies determined that the evidence did not warrant such an obligation.

With regard to the last allegation, the Guardian Ad Litem contacted the State Attorney's Office. The State Attorney's Office searched its records and notified the Guardian Ad Litem that no information was found on either Charles Contino, Barbara Contino, or Daniel Contino.

The Guardian Ad Litem also interviewed Greg Contino who stated that Barbara was unstable, that she had made verbal threats to commit suicide, and that she was eventually diagnosed as a manic depressive. Greg believes that Daniel should not share in the estate. He stated that all of the siblings know that their father would not have wanted Daniel to share in the estate, but that the two youngest brothers have agreed to give Daniel part of their share.

The Guardian Ad Litem evaluated the foregoing evidence and concluded that although the proof against Daniel casts a strong suspicion or grave doubt as to Daniel's paternity, the evidence must do more to overcome the presumption of legitimacy. She noted that once a child is born into wedlock, "one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized." Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944). On this basis, the Guardian Ad Litem recommended that Daniel be considered a child of the decedent.

On June 30, 1997, the court conducted an evidentiary hearing where the court heard testimony that was substantially similar to that detailed in the Guardian Ad Litem's report. The only additional testimony received was from Mark Contino. When asked whether he had ever observed his father repudiate or disavow Daniel, he explained that when Daniel was living in foster homes, he asked his father to take Daniel in, but his father refused stating that Daniel was not his son and that he had no responsibility for him.

Despite this testimony, the court entered an order on the motion to determine heirs following the Guardian Ad Litem's recommendation and stating that Daniel Contino should be considered a child of the decedent and be entitled to take a share of the decedent's estate. Greg Contino, as Personal Representative of the Estate of Charles A. Contino, appeals.

Greg Contino contends that the trial court erred by determining that Daniel should be considered the decedent's child and entitled to take a share of the decedent's estate because the evidence adduced at the hearing overcame any presumption of legitimacy. We disagree.

In Eldridge, the Florida Supreme Court stated:

Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized.... The rule is well established in this country that the husband may make the attack, but in so doing, he must overcome the strong presumption of legitimacy by clear and satisfactory testimony.... The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to...