Lander v. Smith
| Decision Date | 15 June 2005 |
| Docket Number | No. 4D04-1547.,4D04-1547. |
| Citation | 906 So.2d 1130 |
| Parties | Mark S. LANDER, Appellant, v. Carolyn L. SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Lewis Kapner of the Law Offices of Lewis Kapner, P.A., West Palm Beach, and Esther G. Tamburo of Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC, for appellant.
Neil Jagolinzer and Jeffrey M. Clyman of Christiansen & Jacknin, West Palm Beach, for appellee.
Mark Lander seeks to establish paternity over a child he fathered with Carolyn Smith while she was married to, but separated from, Adam Meyers. The trial court granted a motion to dismiss and a summary judgment based mainly on Florida's presumption of legitimacy regarding children born during an intact marriage. Lander appeals contending that the presumption of legitimacy should not bar him from establishing paternity under the facts of this case. We agree and reverse.
Lander and Smith were involved in a relationship beginning in September 1999 and continuing through March 2001. In August 2001, Smith married Meyers. In September 2001, Smith and Meyers separated and she moved to Florida while he remained in New York. Smith contacted Lander about a reconciliation, and they resumed their relationship, which continued until December 2002. In June 2002, Lander and Smith engaged in sexual intercourse and conceived a boy. The boy, T.R.S., was born on February 28, 2003. Lander's name was placed on T.R.S.'s birth certificate as his father.
Lander filed suit against Smith, and subsequently filed an Amended Verified Petition to Establish Paternity, Parental Rights and Responsibilities, Including Time-Sharing, Child Support and Other Relief. In it Lander asserts that he provided financial support to Smith prior to T.R.S.'s birth, provided financial support to pay for the expenses of T.R.S.'s birth and his care, paid child support to Smith, and developed a relationship with T.R.S.
Smith filed a motion to dismiss the petition asserting that Lander had no parental rights to a child born during an intact marriage. Meyers filed a verified response objecting to the paternity action. He claimed to have been continuously married to Smith since August 2001 and that no divorce or dissolution of marriage action had been pursued.
The trial court held a hearing on the motion to dismiss and entered a written Order Granting Respondent's Motion to Dismiss. The trial court concluded that "Adam Meyer[s], as the husband of the mother, is indisputably the subject child's legal father,1" based on Florida's presumption of legitimacy. As such, Lander had no standing to seek parental rights to a child born during an intact marriage, which the trial court defined as requiring a marriage and no pending divorce action. The trial court granted the motion to dismiss without prejudice to Lander filing an amended petition.
Lander filed a second amended petition and included additional allegations. Lander claimed that when Smith contacted him about reconciliation in September 2001, she indicated that her marriage to Meyers was over. Lander indicated that he resumed his relationship with Smith in reliance on her representations that she and Meyers were separated and not engaging in sexual intercourse. Lander further alleged that Smith repeatedly told him that she was in the process of obtaining a divorce from Meyers.
Smith filed a motion to dismiss this petition. The trial court entered a written Order Granting and Denying Motion to Dismiss and Bifurcating Case. In denying the motion to dismiss, the trial court vacated the factual findings contained in the first order on dismissal and recognized a factual dispute concerning whether Smith was in the process of divorcing. The trial court, however, reiterated its conclusions regarding intact marriages from the first order and granted the motion to dismiss in all other respects.
Smith then filed an answer and affidavit on the matter of marriage and divorce, asserting that she was continuously married to Meyers since August 2001 and that no divorce or dissolution action had ever been filed. She also filed a motion for summary judgment asserting that no factual dispute existed regarding the status of her marriage to Meyers. The trial court entered a written Final Summary Judgment finding that there was no issue of material fact.
Lander appeals both the dismissal orders and the final summary judgment. Thus, the standard of review applicable to this appeal is de novo. "The standard of review of orders granting motions to dismiss with prejudice is de novo." MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). "In assessing the adequacy of the pleading of a claim, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader." Id. The standard of review applicable to orders on summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000); see also Reeves v. No. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002)
. "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Aberdeen, 760 So.2d at 131. Furthermore, "[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available." Reeves, 821 So.2d at 321.
Dep't of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993)(internal citation omitted). To this end, "there exists a strong presumption of the legitimacy of children." Hill v. Parks, 373 So.2d 376, 376 (Fla. 2d DCA 1979); see also Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163, 163 (1944); Casbar v. Dicanio, 666 So.2d 1028, 1029 (Fla. 4th DCA 1996); Dep't of Revenue v. Cummings, 871 So.2d 1055, 1061 (Fla. 2d DCA 2004),rev. granted, 895 So.2d 405 (Fla.2005). The presumption is, however, rebuttable. Hill, 373 So.2d at 376. Nevertheless, "[c]ourt after court in the United States has held that the presumption and its related policies are so weighty that they can defeat even the claim of a man proven beyond all doubt to be the biological father." Privette, 617 So.2d at 308. In general, the presumption will not be overcome "unless common sense and reason are outraged by applying it to the case at hand." Id. at 309. This means that "there must be a clear and compelling reason based primarily on the child's best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father." Id. (emphasis in original).
As a result of the strong presumption of legitimacy, "[t]he prevailing law in this state, however, is that a putative father has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object." Johnson v. Ruby, 771 So.2d 1275, 1275 (Fla. 4th DCA 2000); see also Tijerino v. Estrella, 843 So.2d 984, 985 (Fla. 3d DCA 2003)
; Bellomo v. Gagliano, 815 So.2d 721, 722 (Fla. 5th DCA 2002)("The court expressly held that section 742.011 does not extend to permit the alleged biological father of a child born of an intact marriage to sue for a determination of paternity."). However, it must be kept in mind that Privette, 617 So.2d at 307.
Lander contends that applying the presumption of legitimacy under the unique circumstances of the case at bar is outrageous to common sense and reason, especially where there are sufficient facts to overcome the presumption: Smith and Meyers were separated, Smith acknowledged Lander as T.R.S.'s father, Lander supported T.R.S., Lander bonded with T.R.S., Smith told Lander that her marriage to Meyers was over, and Meyers was absent as a husband and a father. Furthermore, Lander contends that the non-access rule, one of the few circumstances capable of overcoming the presumption, applies in this case. The non-access rule defeats the presumption by showing that the husband "lacked access to his wife at the time of conception." G.F.C. v. S.G., 686 So.2d 1382, 1384 (Fla. 5th DCA 1997); see also Jones v. Stoutenburgh, 91 So.2d 299, 303 (Fla.1956)
(self-incrimination context); In re: Estate of Jerrido, 339 So.2d 237, 239 (Fla. 4th DCA 1976)(heirship context). Lander contends that the sixteen month separation of Meyers and Smith while they were living in separate states (not to mention Smith's representations that she was not engaging in sexual intercourse with Meyers during this time period) establish non-access so as to overcome the presumption of legitimacy. Finally, Lander contends that the trial court erred by not undertaking a best interests analysis.
Smith responds that this case is straightforward and that Lander's arguments constitute nothing more than an invitation to open...
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