Department of Health and Rehabilitative Services, on Behalf of Ward v. Wyatt, 85-9
| Decision Date | 26 September 1985 |
| Docket Number | No. 85-9,85-9 |
| Citation | 10 Fla. L. Weekly 2229,475 So.2d 1332 |
| Parties | 10 Fla. L. Weekly 2229 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Barbara WARD, Appellant, v. Glenn WYATT, Appellee. |
| Court | Florida District Court of Appeals |
Charles Carlton, Lakeland, for appellant.
No appearance for appellee.
The Department of Health & Rehabilitative Services (HRS) appeals from an adverse summary judgment holding that the present action for determination of paternity and for support was barred by application of the doctrine of res judicata. We reverse.
In December 1982, HRS filed an amended two count complaint on behalf of Barbara Ward, plaintiff, against Glenn Wyatt, as defendant, seeking a declaration that Wyatt was the father of Tammy Burks, born out of wedlock to Barbara Ward on August 20, 1970. The complaint alleged the child was receiving public assistance and that HRS was subrogated to the support rights of the child pursuant to section 409.2561, Florida Statutes (1981). Count I prayed for a determination that Wyatt was the father of the child, that he be ordered to pay child support and that such payments be made to HRS until such time as the child was no longer receiving public assistance. Count II was almost identical to Count I, but was stated to be "an action for child support," brought on behalf of the minor child, Tammy Burks.
Wyatt answered the complaint and asserted the affirmative defense of res judicata. In April 1970, before the child was born, Barbara Ward filed an action against Glenn Wyatt under Chapter 742, Florida Statutes, alleging that she was unmarried and pregnant, and that Wyatt was the father of her unborn child. She requested a declaration of paternity, an award of hospital and medical fees for the forthcoming birth of the child, and child support after the birth of the child. After the child was born, a stipulation that the cause be dismissed with prejudice, signed by counsel for both parties, was presented to the trial judge. Based on the stipulation, the trial court dismissed the 1970 action "with prejudice." Nothing more is revealed to us in this record about the earlier case. On the basis of the earlier order of dismissal, the trial court in this case held that the current action was barred by application of the doctrine of res judicata, and entered the summary judgment appealed from.
No issue has been raised before us as to the correctness of the determination that the principle of res judicata bars this action by or on behalf of the mother. 1 But whatever effect the earlier dismissal had on the right of the mother to bring this action, an issue we do not decide, it did not affect the rights of the child. An illegitimate child has an independent right to support from its father. The mother merely serves as a conduit for such support benefits due the child, thus, the mother cannot contract away the child's rights or release the father from his obligation to support the child. State, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979); Gammon v. Cobb, 335 So.2d 261 (Fla.1976). In addition to the right of support, the child has other interests, such as the right to be an heir of its natural father, and thus has rights independent of the mother's which can be adjudicated by an action for paternity. While Chapter 742 has been construed to be the exclusive means by which the mother may seek a declaration of paternity, it is not the exclusive remedy by which the interests of the father or of the child may be determined, otherwise the rights of the father or of the child could be foreclosed by the failure of the mother to bring an action under the statute. See Kendrick v. Everheart, 390 So.2d 53 (Fla.1980).
Because the child was not a party to...
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