I.A. v. H.H., 96-05218
| Decision Date | 22 April 1998 |
| Docket Number | No. 96-05218,96-05218 |
| Citation | 710 So.2d 162 |
| Parties | 23 Fla. L. Weekly D1063 I.A., Appellant, v. H.H., Appellee. |
| Court | Florida District Court of Appeals |
Luis E. Insignares, Goldberg, Goldstein & Buckley, Fort Myers, for Appellant.
Michael P. Reiter, Fort Myers, for Appellee.
In this litigation involving the parentage of a young child, the man who has served as the child's father since its birth was ousted as its legal father, in favor of a man whose only connection to the child is biological. We conclude that the biological father had no right to bring the action, and we reverse.
The salient facts are uncontested. The child, K.H., was born August 1, 1991. Two months later the child's mother, I.A., married N.H., with whom she had been in a long-term relationship when the child was conceived. At the hearing below, N.H. testified that the couple delayed their marriage solely because of his hesitancy stemming from his own childhood in a broken home. Notwithstanding his concerns about marrying, N.H. enthusiastically undertook the responsibilities of fatherhood. He supported I.A. emotionally and financially throughout her pregnancy.
When K.H. was born, N.H. executed the documents necessary to have himself identified as the father on the birth certificate. Thereafter, N.H. gave the child his love, attention, and financial support.
After I.A. and N.H. married, they had another child. By all accounts, the couple and their children lived happily as a typical intact middle-class family, until August 1994, when K.H. was three years old. That month, life changed dramatically for the young family.
Unbeknown to N.H., for a time during the couple's courtship I.A. also had been involved with another man, H.H. The dalliance was secret and brief, and it ended shortly before I.A. learned that she was pregnant. I.A. later testified that, at the time, she was certain that N.H. was the father of the child she carried, and she told H.H. this. H.H. accepted I.A.'s word, and they went their separate ways. But in August 1994, H.H. filed a paternity suit against I.A., alleging that he was K.H.'s father.
In a motion to dismiss H.H.'s initial complaint, and again in an affirmative defense directed to an amended complaint, I.A. alleged that her husband, N.H., was presumed to be K.H.'s legal father and that H.H. had failed to join N.H. as an indispensable party. She also contended that H.H. had failed to allege facts sufficient to show that it would be in the child's best interest to question the presumption of the child's legitimacy, citing Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993).
Early in the proceedings the parties stipulated that the blood of H.H., I.A., and the child would be subjected to a Human Leukocyte Antigen (H.L.A.) test to determine the likelihood that H.H. was the child's biological father. The parties agreed that H.H.'s suit would be dismissed with prejudice if the test disclosed a 95 percent or smaller probability of paternity. But several weeks after the blood samples were submitted for analysis, the laboratory reported a 99.7 percent probability that H.H. was K.H.'s biological father.
Armed with the H.L.A. test result, H.H. moved for summary judgment on the question of paternity pursuant to section 742.12(1), Florida Statutes (1993). That statute provides that if an H.L.A. test reveals a 95 percent or greater probability that a person is the biological father of a child, there arises a rebuttable presumption of paternity. The statute further provides that if a party does not rebut the presumption, the court may enter a summary judgment of paternity based on the test result.
I.A. resisted the summary judgment motion. She moved the court to appoint a guardian ad litem for the child, and to interplead N.H. as a party, all pursuant to Privette. Her argument was to no avail. In late October 1995, the court entered a partial summary judgment declaring H.H. to be the child's biological father. The order also provided that the court would schedule a trial on "the issue of whether the parental rights of the plaintiff are to be severed."
Shortly after that order was entered, N.H. moved to intervene in the suit, and he filed a separate "Motion to be Declared the Legal Father of the Minor Child [K.H.]." The latter motion recited that N.H. had been named as the father on the child's birth certificate, married the child's mother, held himself out as the child's father, and supported the child financially and emotionally since birth.
The court held an evidentiary hearing on N.H.'s two motions in late January 1996. In addition to the facts previously described, the evidence showed that H.H. had seen the child only once, during a brief meeting between H.H. and I.A. not long before the suit was filed. Nevertheless, H.H.'s attorney argued that I.A. and N.H. had not proved any legal basis for depriving H.H. of his parental rights. Counsel for I.A. and N.H. contended the facts proved that N.H. was the child's legal father as a matter of law.
In December 1996, the court rendered a "Final Judgment of Paternity" in H.H.'s favor. Although the judgment noted that it arose from a hearing on N.H.'s motions to intervene and to be declared the child's legal father, it did not directly address those motions. The final judgment recognized H.H.'s parental rights, and found no basis for terminating them. It directed the parties and the child to undergo a psychological evaluation, following which the court would convene to
determine how H.H.'s rights were to be implemented. I.A. appealed.
I.A. contends the circuit court erred by failing to rule on her husband's motion to intervene, to appoint a guardian ad litem to represent the child or to conduct a hearing to determine the child's best interests pursuant to Privette, and by basing its decision in part on its belief that the child's Hispanic appearance should have alerted I.A. to the possibility that H.H. was its father. (Both I.A. and H.H. are Hispanic; N.H. is not.) On the first question, we conclude that the final judgment under review implicitly granted N.H.'s motion to intervene, and denied his motion to be declared K.H.'s legal father.
Beyond that, we find that I.A.'s other contentions are mooted by an issue which has not been raised in the appeal, but which involves an error that is of such a fundamental nature that we are duty bound to correct it: H.H. has been given relief pursuant to a cause of action that does not exist. See Smith v. Pattishall, 127 Fla. 474, 129 Fla. 498, 176 So. 568 (1937).
Seven weeks after rendition of the final judgment in this case, the Fifth District issued an opinion in which it examined the question whether a man claiming to be the biological father of a child born to an intact marriage between its mother and another man can petition to establish his paternity of the child pursuant to the paternity laws contained in chapter 742, Florida Statutes (1995). See G.F.C. v. S.G. and D.G., 686 So.2d 1382 (Fla. 5th DCA 1997). After carefully analyzing the common law, the statutes, and federal and state constitutional considerations, the court concluded that there is no such cause of action. We agree with the G.F.C. court's reasoning and conclusion.
Here, the child was not born to an intact marriage. But we believe that the holding in G.F.C. applies to this case nonetheless. We begin this analysis by noting, as did the Fifth District, that section 742.011 provides that a circuit court may entertain a paternity action when the child's paternity "has not been established by law or otherwise."
Paternity would be established "by law" when there has been an adjudication of paternity or by the filing of affidavits or stipulation acknowledging paternity as provided in section 742.10. Paternity would "otherwise" be established when a child is born to an intact marriage and recognized by the husband and the mother as being their child. In such a case, the husband would be the child's "legal father" to the exclusion of all others. Under any other interpretation, a husband could never be more than a presumptive father absent an adjudication of paternity.
Chapter 742 also recognizes another circumstance in which a child's paternity is "otherwise" established. Section 742.091 provides that "[i]f the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock...." The clear import of the statute is that in such circumstances the parties are accorded the same...
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