Herout v. Lawrence
| Decision Date | 15 December 1982 |
| Docket Number | No. AL-44,AL-44 |
| Citation | 423 So.2d 558 |
| Parties | Gladys M. HEROUT, Appellant, v. Freeman D. LAWRENCE, Appellee. |
| Court | Florida District Court of Appeals |
David G. White, Thomasville, Ga., for appellant.
Anthony J. Bajoczky and Albert Craig Penson of Barrett, Bajoczky & Barrett, Tallahassee, for appellee.
Herout appeals the trial court's grant of summary judgment in favor of Lawrence, the defendant in this paternity suit. We affirm.
Herout was married to Harold Jackson at the time of the conception and birth of her son, Lawrence Jackson. On 27 September 1967, Herout filed a petition for divorce from Harold Jackson, alleging that Lawrence Jackson was one of the children of the marriage and praying that Harold Jackson be ordered to pay child support. On 4 December 1967, the trial court granted a divorce to the parties and entered an order of child support for Lawrence Jackson.
On 14 October 1981, Herout filed this paternity action against Freeman D. Lawrence, alleging that he is the real father of Lawrence Jackson. The complaint prayed that "the issue of support be tried by the court and that the court order the Defendant to pay support from the birth of the child to age 18." At the time this action was filed, Lawrence Jackson was 19 years old. The trial court granted Lawrence's motion for summary judgment on the grounds that Herout was estopped from now denying the legitimacy of her son and that she was not the proper party plaintiff since her son had already reached the age of majority.
Formerly, a woman was not allowed to bring a paternity action against one other than her spouse when she was married at the time the child was conceived. Kennelly v. Davis, 221 So.2d 415 (Fla.1969); Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA 1970). However, in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), the Florida Supreme Court receded from Kennelly and allowed a married woman to sue for support benefits for her illegitimate child. Thus, it is clear that Herout is not precluded as a matter of law from bringing this action simply because she was married at the time of the conception and birth of her son.
However, this case presents a situation different than the one addressed in Gammon or in any of the cases decided since then. Here, the plaintiff previously alleged that her ex-spouse was the father of her son and obtained a court order to that effect. She now seeks to deny her former position by alleging that...
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Popper v. Popper
...Fountain of Youth Co. v. Day, 90 Fla. 197, 105 So. 814 (1925); Arnold v. Arnold, 500 So.2d 739 (Fla. 3d DCA 1987); Herout v. Lawrence, 423 So.2d 558 (Fla. 1st DCA 1982). II. STATUTE OF LIMITATIONS AND LACHES With regard to the trial court's ruling on Count II, the cause of action based on t......
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Van Nostrand v. Olivieri
...a right to reopen the proceedings and relitigate the matters which were resolved in the dissolution proceedings. In Herout v. Lawrence, 423 So.2d 558 (Fla. 1st DCA 1982), the mother gave birth to a son while married to Jackson. She later sued Jackson for divorce alleging that the son was a ......
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Hess v. Hess, 85-52
...have been barred by familiar principles of res judicata. See Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983); Herout v. Lawrence, 423 So.2d 558 (Fla. 1st DCA 1983). See also Freed v. Freed, 373 So.2d 436 (Fla. 3d DCA 1979). Cf. Decker v. Hunter, 460 So.2d 1014 (Fla. 3d DCA 1984) (hus......
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Estate of Robertson, In re, 87-2259
...that the decedent was her natural father. See Decker v. Hunter, 460 So.2d 1014 (Fla. 3d DCA 1984). See also Herout v. Lawrence, 423 So.2d 558 (Fla. 1st DCA 1982). The feature which prevents the cases so holding from being, by analogy, determinative of the claim of Nicole is the fact that Ni......