Gammon v. Cobb

• Decision Date: 30 June 1976
• Docket Number: No. 46616,46616
• Citation: 335 So.2d 261
• Parties: Laura Jean Hill GAMMON, Appellant, v. Ernest COBB, Appellee.
• Court: Florida Supreme Court

Page 261

335 So.2d 261

Laura Jean Hill GAMMON, Appellant, v. Ernest COBB, Appellee.

No. 46616.

Supreme Court of Florida.

June 30, 1976.

J. E. Satterfield, Clearwater, for appellant.

SUNDBERG, Justice.

This cause reaches us on direct appeal from the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida. We have jurisdiction of the appeal pursuant to Article V, § 3(b)(1), Florida Constitution, and Rule 2.1 subd. a (5)(a), Florida Appellate Rules, in that the Circuit Court initially and directly passed upon the validity of Chapter 742, Florida Statutes, by holding that such statute is not unconstitutional, either facially or as applied to the circumstances of the instant case. Appellant filed suit in the Circuit Court below alleging in her complaint that appellant and appellee had cohabited together as man and wife for some twenty years, but that at the time they commenced cohabiting each had a living spouse by prior marriages, which had not been dissolved. Appellant further alleged that as a consequence of the cohabitation the parties were delivered of seven children and that until shortly before the filing of the instant suit the appellee accepted paternity of the children and regularly contributed to their support. The parties are now separated and at disagreement, and by her complaint appellant sought to have appellee designated as the natural father of the children and to require that he support them.

Appellee filed a Motion to Dismiss the complaint on the ground that on its face the appellant was without standing to seek the relief prayed for in that under Chapter 742, Florida Statutes, actions are limited to unmarried women, an essential allegation absent from the appellant's complaint. The very able trial judge, upon the authority of Lorenz v. Jiminez, 163 So.2d 500 (Fla.App.3d 1964), dismissed the complaint with prejudice and ordered that the cause be removed from the court's registry of pending cases. In the Lorenz case, Supra, the District Court of Appeal of Florida, Third District, affirmed the dismissal of a complaint on the ground that it failed to allege that the child whose paternity was sought to be established was born out of wedlock to an unmarried woman, and the trial court in the case Sub judice concluded on the authority of that case that the unmarried status of the plaintiff in a paternity proceeding is jurisdictional under Chapter 742.

Thereupon plaintiff timely filed a Motion for Rehearing and Amendment of Order on Motion to Dismiss, in order to gain a ruling on the constitutionality of Chapter 742, Florida Statutes, as applied to the instant case. The trial court, accordingly, entered its amended order on defendant's Motion to Dismiss, ordering and adjudging that Chapter 742, Florida Statutes, is not unconstitutional, either facially or as applied to the circumstances of this cause, citing as authority the opinions of this Court in Kennelly v. Davis, 221 So.2d 415 (Fla.1969) and Brown v. Bray, 300 So.2d 668 (Fla.1974). This appeal ensued.

The issue squarely presented again to this Court, in light of our decision in Kennelly, supra, is whether the Legislature may constitutionally limit actions for determination of paternity and support of illegitimate children by the natural father to unmarried mothers of illegitimate children, precluding married mothers of illegitimate children such relief. The appellant asserts in the first instance that Chapter 742, Florida Statutes, should be so construed by this Court as to judicially excise the word 'unmarried' from the statute; and if we are unwilling so to do, then, in the alternative, to rule that the statute violates the provisions of Article I, § 2 of the Constitution of the State of Florida and Amendment Fourteen of the Constitution of the United States as depriving equal protection; of Article I, § 21 of the Constitution of the State of Florida, providing that the courts shall be open to every person for the redress of any injury; and of Amendment XIX of the United States Constitution prohibiting discrimination by reason of sex.

The pertinent sections of the statute under attack are § 742.011, Florida Statutes, providing:

'Any Unmarried woman who shall be pregnant or delivered of a bastard child may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.' (Emphasis supplied)

Also, § 742.10, Florida Statutes, providing:

'This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of bastard children.'

The Florida Bastardy Act had its genesis in 1828. Act of January 5, 1828, Section 1. At that time proceedings were unitiated by a complaint before a justice of the peace or magistrate, who, upon a finding of sufficient grounds, ordered the defendant to appear before the circuit court. Consequently, the proceedings were quasicriminal in their inception but became civil once they reached the circuit court. State v. Rowe, 99 Fla. 972, 128 So. 7 (1930). Today the proceedings are civil in nature from their inception. Section 742.011, Florida Statutes. As initially enacted in 1828 the law provided that any 'single woman who shall be pregnant or delivered of a child, who by law would be deemed and held a bastard' was entitled to bring an action for a limited recovery 'not exceeding fifty dollars yearly,' for expenses attending birth, etc. (Emphasis supplied). This provision was changed by Chapter 26, 949, Laws of Florida 1951, to read that any 'unmarried woman who shall be pregnant or delivered of a bastard child may bring proceedings' and then provided for a more liberal allowance for the expenses involved. (Emphasis supplied). In Sanders v. Yancey, 122 So.2d 202 (Fla.App.2d 1960) it was concluded that the indicated change in wording was not sufficient to merit a construction of the statute other than that placed on the wording of the former provision by the Supreme Court.

Although this Court and the District Courts of Appeal of this state in Kennelly, supra, and Lorenz, supra, have previously held that a married woman may not maintain an action to prove the illegitimacy of her child, the rule is just the contrary with respect to a husband. As stated in Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944) '. . . 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.' In that case the Court reiterated the almost universal rule of Anglo-American jurisprudence that 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.

We turn now to the appellant's assertion that this Court might properly construe out the word 'unmarried' in Section 742.011, Florida Statutes. Although we might be greatly tempted to engage in such statutory construction to reach a desirable result in this case, no sort of mental gymnastics available to the writer can bring about an intellectually honest construction of the word 'unmarried' to include a woman who is legally married to other than the natural father of the child at the time of that child's conception and birth. Laudable results cannot justify patently ignoring a plain term such as 'unmarried.' Appellant urges us to determine that she was 'de facto' unmarried at the time the children here involved were conceived since appellant has had no contact with her legal husband for a period of twenty years and has cohabited with appellee during that period of time. This is too fragile a basis upon which to bottom a decision. In every suit brought by a married woman under Chapter 742, Florida Statutes, it would be incumbent upon the trial judge to inquire into every aspect of the then existing relationship between the plaintiff and her legal husband to ascertain whether the marriage relationship has been de facto dissolved. The result would be to convert each such Chapter 742 proceeding into a quasi dissolution of marriage proceeding. At what point in time and under what circumstances does she become 'unmarried'? What standing would the legal husband have to controvert the assertion by the wife that she has become 'de facto unmarried'?

Since we are unable to construe the statute in the fashion asserted by the appellant and are unwilling to accept a principle of law that a woman can somehow become 'de facto unmarried' there remains the question of the constitutionality of § 742.011, Florida Statutes. Plainly stated, does the statute deny the children of the appellant equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article I, § 2 of the Constitution of the State of Florida or access to the courts mandated by Article I, § 21 of the Constitution of the State of Florida? The test, basically, is whether the classification made by the Legislature in § 742.011, Florida Statutes, is reasonable. As pointed out in McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) in order for a statutory classification not to deny equal protection, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. Were we restricted to an examination of Chapter 742, Florida Statutes, and the cases expressly construing it we would be impotent to entertain an equal protection attack on its constitutionality, particularly in view of the principle binding upon this Court that 'all reasonable doubts as to the validity of statutes under the Constitution are to be resolved in favor of constitutionality.' In re Estate of Caldwell, 247 So.2d 1 (Fla.1971); Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Kass v. Lewin, 104 So.2d 572 (Fla.1958);...