Dawkins v. Dawkins, 85-2077

• Decision Date: 17 September 1986
• Docket Number: No. 85-2077,85-2077
• Citation: 11 Fla. L. Weekly 2014,494 So.2d 282
• Parties: 11 Fla. L. Weekly 2014 Pauline DAWKINS, Appellant, v. Byron F. DAWKINS, Appellee.
• Court: Florida District Court of Appeals

Page 282

494 So.2d 282

11 Fla. L. Weekly 2014

Pauline DAWKINS, Appellant, v. Byron F. DAWKINS, Appellee.

No. 85-2077.

District Court of Appeal of Florida Second District.

Sept. 17, 1986.

William J. Terry and James M. Martin, Tampa, for appellant.

Ralph M. Guito, Jr., and W. Dale Gabbard of Ralph M. Guito, Jr., P.A., Tampa, for appellee.

SCHEB, Acting Chief Judge.

Pauline Dawkins, the wife, appeals a final order granting her former husband's motion for relief from a final judgment of dissolution of marriage. We affirm in part and reverse in part.

The parties married in 1947. After four children were born, the parties divorced in 1964 but remarried that same year. Then in 1982, the wife petitioned to dissolve the marriage. Her petition recited that the four children born of the marriage were adults. The wife requested disposition of the marital property and alimony.

On May 24, 1984, the court entered a final judgment dissolving the marriage and awarding the wife: (1) the furniture, furnishings, and appliances in the marital home; (2) a 1977 Cadillac; (3) the use of the marital home until she died or remarried with a proviso that the home could be partitioned and sold if she moved from it permanently; (4) a lump-sum payment for the husband's use of marital funds for his personal vacations; and (5) permanent alimony. The court ordered the husband to pay all joint debts of the marriage and awarded him his personal tools and belongings, a 1979 Pontiac, and the assets of his mother's will. The court reserved jurisdiction to consider attorney's fees and costs for the wife.

On June 20, 1984, the husband filed an appeal to this court which he voluntarily dismissed two and one-half months later. Also, on June 20, he filed a motion for relief from the final judgment in the trial court pursuant to Florida Rule of Civil Procedure 1.540(b). He alleged that after the final judgment he discovered that only the oldest of the parties' four children was his child and the other three were offspring of the wife and another man. Thus, he contended the wife had perpetrated a fraud on the court by concealing the children's parentage. The husband requested that the final judgment of May 24, 1984, be set aside, the wife pay all fees and costs, and the court impose sanctions against her for perpetrating fraud. On January 29, 1985, the wife replied to the husband's petition denying all his allegations and asserting the children were not an issue in the dissolution proceedings because they were all adults at that time.

After an evidentiary hearing, which the parties did not have recorded, the trial court, on August 13, 1985, granted the husband's motion for relief. The trial court, reciting portions of the evidence at the unrecorded hearing, found the wife had perpetrated a fraud because she had falsely alleged in writing and testified that she had been a faithful, dutiful wife and given birth to and raised the husband's four children. The court determined that the husband could not have obtained by due diligence the newly discovered evidence relating to the children's parentage. As a result, the court set aside all provisions of the May 24, 1984, final judgment except the dissolution of the marriage. This timely appeal by the wife ensued.

At the outset, we reject the wife's argument she was denied due process of law by the court's granting of the husband's motion. The record reflects that the issues were framed by the parties' pleadings and the wife had notice and an opportunity to be heard on the motion. Moreover, at oral argument, the wife's counsel conceded that she was present with counsel at the hearing and there was no request for a continuance to present any...