Jefferis v. May, 91-1241

• Decision Date: 31 July 1992
• Docket Number: No. 91-1241,91-1241
• Parties: Jeanette JEFFERIS, Appellant, v. Steven A. MAY, Appellee. 603 So.2d 84, 17 Fla. L. Week. D1828
• Court: Florida District Court of Appeals

Page 84

603 So.2d 84

Jeanette JEFFERIS, Appellant, v. Steven A. MAY, Appellee.

No. 91-1241.

603 So.2d 84, 17 Fla. L. Week. D1828

District Court of Appeal of Florida,

Fifth District.

July 31, 1992.

David G. White, Cedar Key, for appellant.

Phil Trovillo of Phil Trovillo, P.A., Ocala, for appellee.

PETERSON, Judge.

Jeanette Jefferis appeals a final judgment entered in an action brought by Steven A. May to set aside, pursuant to rule 1.540, Florida Rules of Civil Procedure, a final judgment of adoption.

Prior to their divorce, Steven and Jeanette adopted Brittany, who is also Jeanette's maternal granddaughter. The final judgment of adoption was entered on February 2, 1989. The final judgment of dissolution, dated March 1, 1990, required Steven to pay $50 per week as child support. Steven did not attend the final hearing on the dissolution but apparently did receive a copy of the final judgment. After the Department of Health and Rehabilitative Services initiated an action against him for collection of child support, Steven initiated this action, on November 9, 1990, to set aside the judgment of adoption. The final judgment in the instant matter modified the previous judgment of adoption by deleting Steven as the named adoptive father. The court noted that it had "determined as a matter of fact that there was fraud, intrinsic or extrinsic, in the procurement of the final judgment of adoption and therefore said final judgment should be set aside as to the plaintiff." We reverse.

The gravamen of Steven's complaint to set aside the judgment of adoption was that Jeanette had promised him that, if he proceeded with the adoption, he would never have to support Brittany financially. He alleged that he proceeded with the adoption in reliance upon her representations. He also alleged that the parties executed a marital dissolution settlement agreement about one year after the adoption that included a provision which stated: "The parties have reached no agreement on child support. It is the parties' intent that the Court set an appropriate child support amount at the Final Hearing." Steven stated that he understood this to mean that he would not have to pay child support, especially in view of Jeanette's alleged repeated oral assurances that he would not have to contribute financially to Brittany's support.

The issue is whether there was evidence of a fraud upon the court in the procurement of the judgment of adoption and, if so, whether the fraud is sufficient to set it aside. Fla.R.Civ.P. 1.540. In DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984), the supreme court explained the difference between intrinsic and extrinsic fraud and the legal consequences of each and stated, "Only extrinsic fraud may constitute fraud on the court." DeClaire, at 377. The court noted that previously it had defined extrinsic fraud as:

[P]revention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat.... Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946).

DeClaire, at 377.

In the instant case, Steven alleged in his complaint that Jeanette committed fraud when she promised that he would never have to support Brittany financially, and, based upon that representation, he continued as copetitioner in the adoption proceeding. We need not decide whether this alleged fraud was a fraud upon the court, extrinsic fraud or intrinsic fraud, since we find that no fraud was committed at all. The complaint did not allege that Jeanette's promise was made with a knowing intention not to act...