Kennelly v. Davis
| Decision Date | 09 April 1969 |
| Docket Number | No. 38208,38208 |
| Parties | Phyllis KENNELLY, Petitioner, v. Richard E. DAVIS, Respondent. |
| Court | Florida Supreme Court |
Hollander & Pestcoe and Bernard C. Pestcoe, Miami, for petitioner.
Davis, Estes & Perez-Casalduc and R. K. Estes, Miami, for respondent.
The District Court of Appeal, Third District, has certified to us that its decision in the case of Kennelly v. Davis, 216 So.2d 795, passes upon a question of great public interest 'regarding the rights of unmarried mothers and the support of persons born out of wedlock.' We, therefore, have jurisdiction of the petition for certiorari herein pursuant to Section 4(2), Article V. Florida Constitution, F.S.A.
The facts as stated in the opinion of the District Court are:
'Phyllis Kennelly in a circuit court action filed pursuant to § 742.011, Fla.Stat., F.S.A., sought to establish that Richard E. Davis was the father of her unborn child. This appeal is from a summary judgment in favor of Davis.
'The appellant was married to John J. Kennelly on May 29, 1963. She was still married to him when the child was conceived in June 1967. They were divorced on July 26, 1967. The present suit was filed in the circuit court on December 13, 1967.
'The appellant alleged in her complaint and subsequently in an affidavit that Davis is the only man with whom she had sexual intercourse in the year 1967. She further states that she engaged in sexual intercourse with Davis at various times in May, June, July, and August 1967. In his affidavit the former husband confirmed the dates of the marriage and divorce. In addition he averred that he had been separated from the appellant since March 1966 and that he had no sexual intercourse with her at any time in 1967. Davis deposed that he had sexual intercourse with the appellant several times in June 1967.
'If these various statements are true, they establish a strong suspicion that Davis was the father of the appellant's child. The decision of the trial judge was clearly based upon Sanders v. Yancey, Fla.App.1960, 122 So.2d 202. The parties agree that Sanders is 'on all fours' with the present case.'
The District Court affirmed the lower Court, holding that it would adhere to the holding of the Sanders case, supra.
The study of the cases and the statute leads us to conclude that Section 742.011, Fla.Stat., F.S.A., does not permit a woman to have her child declared illegitimate and thus receive support for said child from its putative fa...
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Gammon v. Cobb
...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 The issue squarely presented again to this Court, in light of our decision......
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Smith v. Wise, s. 69--679
...See also, so holding, Illgen v. Carter, Fla.App.1960, 123 So.2d 368; Kennelly v. Davis, Fla.App.1968, 216 So.2d 795; aff'd. Kennelly v. Davis, Fla.1969, 221 So.2d 415, cert. den. 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193. In the last cited case, the Supreme Court of Florida said: 'The stud......
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G.F.C. v. S.G., 95-2165
...child in question here was not born "out of wedlock" and the paternity of the child had been "otherwise" established. See Kennelly v. Davis, 221 So.2d 415 (Fla.), cert. denied, 396 U.S. 916, 90 S.Ct. 237, 24 L.Ed.2d 193 (1969). See generally, Purvis v. State, 377 So.2d 674 (Fla.1979); Knaue......
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Herout v. Lawrence
...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 Cou......