Nevitt v. Bonomo

• Decision Date: 21 December 2010
• Docket Number: No. 1D10–3333.,1D10–3333.
• Parties: Tommy NEVITT, Appellant,v.Nicole BONOMO and Vince Bonomo, Appellees.
• Court: Florida District Court of Appeals

53 So.3d 1078

Tommy NEVITT, Appellant,

v.Nicole BONOMO and Vince Bonomo, Appellees.

No. 1D10–3333.

District Court of Appeal of Florida, First District.

Dec. 21, 2010.

Jason K. Hutchinson and Scott Ellerin, of Ellerin Hutchinson, Jacksonville, for Appellant.Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.WETHERELL, J.

Appellant, Tommy Nevitt, seeks review of the trial court's order dismissing his paternity action against Appellees, Nicole and Vince Bonomo. We reverse and remand for further proceedings.

Appellees' marriage was dissolved through a final judgment entered on February 10, 2010. At the time of the dissolution, Ms. Bonomo was pregnant with Mr. Nevitt's child. The child was conceived while Appellees were married, but the child was not born until after Appellees' divorce was final. The record does not reflect when the child was born, but the amended complaint alleged that the child was due on or about April 20, 2010.

On February 11, 2010, Mr. Nevitt filed a complaint pursuant to chapter 742, Florida Statutes (2009), seeking a determination that he was the biological father of the child as well as other relief. The complaint alleged that, at the time of the child's conception, Appellees were not living together and that their marriage was not intact. The complaint also alleged that Mr. Nevitt “has manifested a substantial concern for the welfare of [the] child by keeping in touch with the mother regarding the pregnancy and giving the mother financial help during the pregnancy.” An amended complaint was filed on February 25, 2010, which added an allegation regarding the dissolution of Appellees' marriage as well as an allegation that Mr. Bonomo had undergone a vasectomy long before the conception of the child making it “biologically impossible” for him to have fathered the child.

On March 25, 2010, in response to Mr. Nevitt's emergency motion for DNA testing, the trial court entered an order finding that Mr. Nevitt “is the biological father of Ms. Bonomo's unborn child and shall heretofore be known as the biological father of said unborn child.” The order reflects that this finding was based upon an agreement between Mr. Nevitt and Ms. Bonomo. The order does not reflect that Mr. Bonomo was party to that agreement, but he subsequently admitted in his answer to the amended complaint that Mr. Nevitt is the child's biological father. Appellees have not contested this order, and the trial court has not vacated the order.

The amended complaint alleged that Ms. Bonomo had initiated adoption proceedings for the child. Mr. Nevitt was opposed to the adoption, and on March 31, 2010, he filed an emergency motion seeking full custody of the child when the child was born and placement of his name on the child's birth certificate as the father. The trial court denied the motion, but prohibited the child from being placed with the prospective adoptive parents upon birth. The order directed that the child be placed with foster parents or Ms. Bonomo until further order of the court. The record does not reflect the child's current placement, and Mr. Nevitt represented in his brief that the adoption proceeding was stayed pending resolution of this paternity action.

Appellees' answer to the amended complaint denied the allegation that Mr. Nevitt had manifested a substantial concern for the child during Ms. Bonomo's pregnancy. The answer acknowledged the pending adoption proceeding for the child, but stated that Appellees “are ready, willing and able to undertake full 100% responsibility for the child in the event the proposed adoption is disrupted.” The answer also stated that Mr. Bonomo, as the child's “legal father,” “continues to have interest in the present and future well-being of the child, and this can include the right to make an adoption plan for the child in lieu of parenting the child.”

On May 6, 2010, two weeks after Appellees filed their answer to the amended complaint, they served a motion to dismiss the paternity action. The motion argued that Mr. Nevitt lacked standing to contest the paternity of the child because the final judgment dissolving Appellees' marriage had been set aside and vacated nunc pro tunc to February 10, 2010, and, thus, the child was born during Appellees' marriage. Attached to the motion was a copy of the order setting aside and vacating the final judgment of dissolution.¹ The order, which was entered on the same day that the motion to dismiss was served in the paternity action, reflects that Appellees consented to setting aside the final judgment and that the judgment was vacated because “it failed to include a child born of the marriage.”

On May 12, 2010, the trial court entered an order granting Appellees' motion to dismiss. The court reasoned that because the final judgment of dissolution had been set aside and vacated, Appellees had been restored to the status of a married couple and, thus, Mr. Nevitt “has no standing to assert any paternity rights or claim to a child born of the marriage.” ² The trial court denied Mr. Nevitt's motion for rehearing and thereafter entered a final judgment dismissing the paternity action with prejudice. This timely appeal followed.

This court reviews de novo an order of dismissal for lack of standing. See Roos v. Morrison, 913 So.2d 59, 62 (Fla. 1st DCA 2005) (reviewing ruling on a motion to dismiss de novo ); see also Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003) (stating that whether a party has standing is a pure question of law which is reviewed de novo ). For purposes of ruling on a motion to dismiss, the trial court may look no further than the four corners of the complaint, and all allegations in the complaint must be accepted as true. Roos, 913 So.2d at 62. A reviewing court operates under the same constraints. Id.

A child born or conceived during marriage is legitimate, and a person seeking to challenge the child's paternity must overcome the strong, albeit rebuttable, presumption of legitimacy. See In re Adoption of Baby James Doe, 572 So.2d 986, 988 (Fla. 1st DCA 1990) (quoting Knauer v. Barnett, 360 So.2d 399, 403 (Fla.1978)); see also Smith v. Wise, 234 So.2d 145, 146 (Fla. 3d DCA 1970) (“A child conceived in wedlock, but born after termination of the marriage is legitimate.”). The presumption is so strong that it “can defeat the claim of a man proven beyond all doubt to be the biological father.” Dep't of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 308 (Fla.1993); see also Dep't of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006) (“The presumption of legitimacy is one of the strongest rebuttable presumptions known to law.”) (internal quotations and citations omitted).

In order to contest the paternity of a child conceived while the mother was married to another man, the putative biological father must allege more than a mere genetic link to the child; he must “show that he has manifested a substantial concern for the welfare of [the] child.” See Kendrick v. Everheart, 390 So.2d 53, 60 (Fla.1980); see also L.J. v. A.S., 25 So.3d 1284, 1286–87 (Fla. 2d DCA 2010) (applying Kendrick under circumstances similar to this case); G.F.C. v. S.G., 686 So.2d 1382, 1386 (Fla. 5th DCA 1997) (“[I]n order for a man to institute an action for paternity of a child born during a marriage, the man would be required to at least allege that a developed relationship exists between himself and the child; an allegation of a mere biological link to the child would not suffice.”). However, a putative biological 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, 1275–76 (Fla. 4th DCA 2000); see also Tijerino v. Estrella, 843 So.2d 984 (Fla. 3d DCA 2003); S.D. v. A.G., 764 So.2d 807, 809 (Fla. 2d DCA 2000); S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999); I.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998); G.F.C., 686 So.2d at 1386. An intact marriage has been described as “the existence of a marriage without the pendency of divorce proceedings.” Lander v. Smith, 906 So.2d 1130, 1134 (Fla. 4th DCA 2005); see also S.B., 736 So.2d at 767 (“So long as the husband and wife are married and have no pending divorce proceeding, we will not authorize the trial court to conduct any qualitative evaluation of whether the marriage is ‘intact.’ ”); but cf. Lohman v. Carnahan, 963 So.2d 985, 988 (Fla. 4th DCA 2007) (characterizing this language in Lander as dicta and stating that “[a] marriage is either intact or it is not”), rev. denied, 981 So.2d 1199 (Fla.2008).

Here, the amended complaint alleged that Mr. Nevitt is the biological father of Ms. Bonomo's child; that the child was conceived while Ms. Bonomo was married to, but separated from, Mr. Bonomo; that Mr. Nevitt manifested a substantial concern for the welfare of the child by providing support to Ms. Bonomo during the pregnancy; and that the child would not be born into an intact marriage because Appellees had divorced several months before the child was due to be born. These allegations are sufficient to withstand Appellees' motion to dismiss.

The trial court erred in relying on the nunc pro tunc order vacating the final judgment of dissolution in dismissing the amended complaint. The order was extrinsic to the amended complaint and, thus, could not be considered by the trial court in ruling on the motion to dismiss. See Crews v. Ellis, 531 So.2d 1372, 1376 (Fla. 1st DCA 1988) (“[A] motion to dismiss may not address factual matters not disclosed by the complaint.”); see also J.W.T. v. S.T., 974 So.2d 436 (Fla. 2d DCA 2007) (reversing the dismissal of a paternity action where the trial court considered matters outside of the petition).

Moreover, under the circumstances of this case, we cannot agree with the trial court that the nunc pro tunc order (or the subsequent dismissal of the dissolution petition by Mr....