Parker v. Parker

• Court: Florida Supreme Court
• Writing for the Court: Taylor
• Citation: Parker v. Parker, 916 So.2d 926 (Fla. 2005)
• Decision Date: 30 November 2005
• Docket Number: No. 4D04-1266.,4D04-1266.
• Parties: Richard Edward PARKER, Appellant, v. Margaret J. PARKER, Appellee.

916 So.2d 926

Richard Edward PARKER, Appellant, v. Margaret J. PARKER, Appellee.

No. 4D04-1266.

District Court of Appeal of Florida, Fourth District.

November 30, 2005.

Scott A. Lazar of Koltun & Lazar, P.A., Miami, for appellant.

No appearance for appellee.

TAYLOR, J.

Richard Parker [former husband] appeals an order dismissing his petition for relief based on fraud. The petition alleged that Margaret Parker [former wife] defrauded the former husband during their marital dissolution by misrepresenting the paternity of a minor child born during the marriage. According to the former husband, this misrepresentation resulted in his child support obligation. We conclude that the trial court correctly dismissed the petition, because the petition, which alleged intrinsic fraud, was not brought within one year of the dissolution decree.

The Facts

The petition filed by appellant alleged that the parties were married on June 26, 1996. A minor child was born of the marriage on June 10, 1998. The former wife represented to the former husband that he was the biological father, and the former husband had no reason to suspect otherwise.

On December 5, 2001, when the child was three and a half years old, the parties entered into a marital settlement agreement which obligated the former husband to pay $1,200 monthly in child support. This agreement was based on the former wife's representation that the former husband was the child's biological father. The marital settlement agreement was incorporated into the final judgment of dissolution dated December 7, 2001. During the dissolution of marriage proceeding, the former wife represented to the court and the former husband that the former husband was the child's biological father.

On or about March 28, 2003, the former wife filed a motion for contempt and enforcement, alleging that the former husband owed her certain monies for child support and the child's medical expenses. One week later, the former husband subjected the child to DNA paternity testing. The testing excluded the former husband as the child's biological father.

Immediately after the child's fifth birthday, the former husband filed this independent action, alleging that at all material times, the former wife knew that the former husband was not the child's biological father due to sexual relations she had with another man. He claims that she purposefully concealed the fact that he was not the child's biological father to collect child support from him.

Procedural Setting

The trial court dismissed the petition with prejudice. The de novo standard of review applies to an order granting a motion to dismiss. Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13 (Fla. 3d DCA 2002). In ruling on a motion to dismiss, courts are limited to the four corners of the complaint, must accept the allegations as true, and may not speculate as to what facts may ultimately be proven at trial. Id.

As a preliminary matter, we note that the husband filed this petition as an action for compensatory damages for past and future child support obligations. He did not file a motion for relief from judgment pursuant to Florida Rules of Civil Procedure 1.540, even though his petition alleges that the former wife perpetrated a fraud upon the court by falsely stating that the former husband was the biological father of the minor child. However, in his brief, he asks us to either consider this as a fraud on the court or remand so that he can amend to argue that theory in his pleading. Because he has not suggested that there are any additional facts which he seeks to add by amendment, we accept his invitation to treat this as if he had alleged in his petition that this was fraud on the court under Rule 1.540.

Because we are faced here with an attempt to upset the marital presumption of legitimacy in favor of a conclusion of illegitimacy and adultery, we are in territory "fraught with difficult social issues." Lefler v. Lefler, 722 So.2d 941, 943 (Fla. 4th DCA 1998) (Klein J., concurring) (Lefler I). One report states that as many as ten percent of all children born to married women during the 1940's were the product of adultery. Chris W. Altenbernd, Quasi-Marital Children: The Common Law's Failure in Privette and Daniel Calls for Statutory Reform, 26 FLA. ST. U.L.REV. 219, 227-28 (1999) (citing Jared Diamond, The Third Chimpanzee 85-87 (1992)). There is little reason to suspect that this number has declined.

The advancing technology has made the temptation to DNA test a child even greater:

While testing at one time involved a blood draw, many laboratories now offer testing with sample collection by mail ... using cheek swabs. Testing hair and other materials easily collected without the knowledge or cooperation of the subject is increasingly available.

Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. CENTER FOR FAMILIES, CHILD. & CTS. 3, 4 (2003). Thus, the instant case presents a question which can be expected to recur with increasing frequency.

Florida Paternity Law

In Daniel v. Daniel, 695 So.2d 1253 (Fla.1997), the trial court had required the former husband to pay child support as part of the marital dissolution decree, despite the fact that the child born during the marriage was not his biological child. The Second District Court of Appeal reversed. The Florida Supreme Court approved that decision, declaring it:

... the well-settled rule of law in this state that "a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted."

Id. at 1254 (quoting Albert v. Albert, 415 So.2d 818, 820 (Fla. 2d DCA 1982)). Thus, had the former husband in this case presented the DNA test results at the time of dissolution, Daniel would have controlled and he would have no child support obligation. However, because he did not present these test results until more than a year after the dissolution decree, he runs headlong into principles of res judicata.

In State, Department. of Health & Rehabilitative Services v. Robison, 629 So.2d 1000 (Fla. 3d DCA 1993), the court held that because the dissolution decree discussed "the minor children born of the marriage," the attempted re-determination of the paternity of the children was barred on res judicata grounds. Id.; see also Vereen v. Vereen, 581 So.2d 1004 (Fla. 1st DCA 1991) (post-dissolution paternity testing was barred by res judicata); State, Dep't. of Health and Rehabilitative Servs. Office of Child Support Enforcement v. Wright, 498 So.2d 1008 (Fla. 2d DCA 1986) (post-dissolution paternity issue res judicata); Decker v. Hunter, 460 So.2d 1014 (Fla. 3d DCA 1984) (same).

In D.F. v. Department of Revenue, 823 So.2d 97, 100 (Fla.2002), the Florida Supreme Court stated bluntly:

We hold that a final judgment of dissolution of marriage which establishes a child support obligation for a former husband is a final determination of paternity. Any subsequent challenge of paternity must be brought under the provisions of Florida Rule of Civil Procedure 1.540.

Relief from Judgments in Florida

Florida Rule of Civil Procedure 1.540(b) permits relief from judgments on grounds of fraud "whether heretofore denominated intrinsic or extrinsic" within one year of the judgment. This claim was brought outside one year, so this main fraud provision does not apply. See Anderson v. Anderson, 845 So.2d 870, 872 (Fla.2003) (stating that presumed father acted within "one-year window" after divorce decree to set aside paternity based on fraud). However, this rule further provides:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Fla. R. Civ. P. 1.540(b) (2004). The former husband argues, and we agree, that his action is essentially an attempt to set aside the dissolution decree's paternity and child support obligations for fraud on the court, i.e., extrinsic fraud. See Dep't. of Revenue v. Byrd, 710 So.2d 1036 (Fla. 1st DCA 1998) (stating that seven year old paternity judgment could be set aside only on ground of extrinsic fraud); State Dep't. of Revenue v. Harris, 684 So.2d 231, 232 (Fla. 2d DCA 1996) (stating that in the paternity context the only way to get relief from judgment after one year is by showing extrinsic rather than intrinsic fraud).¹

The distinction between intrinsic and extrinsic fraud is "elusive," particularly where the circumstances appear to be somewhat of a "hybrid" nature. Guerriero v. Schaub, 579 So.2d 370, 371 (Fla. 4th DCA 1991). "Extrinsic fraud, which constitutes fraud on the court, involves conduct which is collateral to the issues tried in a case." Cerniglia v. Cerniglia, 679 So.2d 1160, 1163 (Fla.1996). The leading Florida case on extrinsic fraud, DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984), summed up the concept, stating that extrinsic fraud occurs "where a defendant has somehow been prevented from participating in a cause." 453 So.2d at 377. It defined intrinsic fraud as "fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried." Id. The court went on to state:

When an issue is before a court for resolution, and the complaining party could have addressed the issue in the proceeding, such as attacking the false testimony or misrepresentation through cross-examination and other evidence, then the improper conduct, even though it may be perjury, is intrinsic fraud and an attack on a final judgment based on such fraud must be made within one year of the entry of the judgment.

Id. at 380.²

In Winston v. Winston, 684 So.2d 315, 319 (Fla. 4th DCA 1996), we stated:

Where a claim of fraud rests on the contention that a party has been misled as to the meaning or effect of documents actually presented to the...