Legal Cases/Articles - Divorce, Deceit, and DNA
Divorce, Deceit, and DNA
By Jaime E. Suarez
Earlier this month, the Florida Supreme Court addressed a landmark case involving divorce and fraud.1
Background2
Richard and Margaret were married in 1996. During their marriage, Margaret gave birth to a child. In 2001, during their divorce proceeding, Margaret told both Richard and the court that Richard was the child’s biological father. On December 7, 2001, a final judgment was entered dissolving the parties' marriage. At this time, the child was 3-1/2 years old. The final judgment contained an agreement acknowledging that Richard was the father of the couple's minor child. This agreement also required Richard to pay child support.
In March 2003, Margaret filed a petition to enforce child support against Richard. In response, Richard had a DNA paternity test conducted. Soon thereafter, Richard discovered that he was not the child's biological father.
In June 2003, Richard filed an independent civil action against Margaret claiming fraud and seeking damages for past and future child support obligations. At this time, the child was five years old.
The trial court dismissed Richard's civil action with prejudice. Richard eventually appealed this case to Florida’s Supreme Court. Here the Court treated Richard’s case as a motion for relief from the dissolution of marriage final order pursuant to Florida Rule of Civil Procedure 1.540(b).
What Type of Fraud Is This?
Florida’s Supreme Court identified that the critical issue in this case was whether a wife's misrepresentation of paternity in a divorce proceeding is extrinsic or intrinsic fraud. The court stated that this distinction was important because of the one-year limitation for filing a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b).
In its analysis, the court stated that:
where fraud is extrinsic, it is deemed independent of the action and, therefore, must be attacked independent of the action. However, where fraud is intrinsic, it is deemed to have occurred in the current action and must be attacked by a rule 1.540(b) motion directed at the current action. And because rule 1.540(b) seeks to achieve finality, the motion must be filed within one year of the final judgment.3
The Florida Supreme Court referred to lower court’s reasoning, stating:
We conclude, along with the majority of states, that the issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later. Any relevant policy considerations that would compel a different result are best addressed by the legislature4.
The Florida Supreme Court then stated that although there were strong arguments in favor of finding the wife's misconduct to be extrinsic fraud, they nevertheless concluded that the former wife's misrepresentation concerning paternity during the dissolution of marriage proceedings constituted intrinsic fraud. Therefore Richard’s motion was barred because it was not brought within one year of the judgment dissolving the marriage and establishing paternity.
What Is In The Child’s Best Interest?
The Florida Supreme Court also analyzed the case from the perspective of policy considerations. The Court stated that “the balance of policy considerations does not require a different result, particularly with regard to the presumption of legitimacy.”5 The Court further stated that they “find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.”6
The Court also recognized that although the former husband may feel victimized, the policy considerations were more important. The court found the following excerpt persuasive:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present.... The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.7
The Florida Supreme Court also rejected another argument that stated that because paternity is presumed when a child is born to a marriage due to the presumption of legitimacy, the child’s father is under no obligation to contest or try the issue of paternity during the dissolution of marriage proceedings; and because child’s father in that case had no reason to contest paternity otherwise, the wife's misrepresentation concerning paternity constituted extrinsic fraud which may be attacked any time.8
The Presumption of Legitimacy Is a Constitutional Right
The Florida Supreme Court concluded that “the presumption of legitimacy was created primarily to protect the welfare of the child.”9 Furthermore, “[t]he presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the child the right to remain legitimate, both legally and factually, if doing so is in the child's best interest.”10 Moreover, “courts have consistently held that it is generally in a child's best interest to promote stability and finality in matters of paternity.”11
Finally, the Florida Supreme Court finished by saying “[w]hile we certainly are mindful of the impact this decision has on the petitioner's interests, […] the current balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding.”
Florida Statute § 742.18
The Florida Supreme Court also noted that the Florida Legislature addressed some of the above policy considerations when it enacted section 742.18, Florida Statutes, in 2006.12 This statute outlines the circumstances in which a male may “disestablish” paternity or terminate a child support obligation. For example, Florida Statute § 742.18(1) states in pertinent part:
742.18 Disestablishment of paternity or termination of child support obligation.--
(1) This section establishes circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child. To disestablish paternity or terminate a child support obligation, the male must file a petition in the circuit court having jurisdiction over the child support obligation. The petition must be served on the mother or other legal guardian or custodian of the child. If the child support obligation was determined administratively and has not been ratified by a court, then the petition must be filed in the circuit court where the mother or legal guardian or custodian resides. Such a petition must be served on the Department of Revenue and on the mother or legal guardian or custodian. If the mother or legal guardian or custodian no longer resides in the state, the petition may be filed in the circuit court in the county where the petitioner resides. The petition must include:
(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.
However, the Florida Supreme Court did not consider and address the applicability of this new statute to Richard and Margaret’s circumstances.
More information regarding the above statute can be found at the State of Florida’s website: http://www.leg.state.fl.us/statutes/.
1 See Parker v. Parker, --- So.2d ----, 2007 WL 268780 *4 (Fla. 2007) (Not Final Until Time Expires to File Rehearing Motion, and if Filed, Determined).
2 The outline of facts is from both Parker v. Parker, --- So.2d ----, 2007 WL 268780 *1 (Fla. 2007), and Parker v. Parker, 916 So.2d 926, 927 (Fla. 4th DCA 2005).
3 See Parker v. Parker, --- So.2d ----, 2007 WL 268780 *4 (Fla. 2007);
4 Id. (citing Parker v. Parker, 916 So.2d at 934) (affirming the trial court's dismissal of the husband's petition for relief based on fraud).
5 See Parker v. Parker, --- So.2d ----, 2007 WL 268780 *5 (Fla. 2007).
6 Id.
7 Id. (quoting [Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003) ] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol'y 269, 275 (2001))).
8 Id. (rejecting the argument in M.A .F. v. G.L.K., 573 So.2d 862, 863 (Fla. 1st DCA 1990)).
9 Id. (citing Sacks v. Sacks, 267 So.2d 73, 76 (Fla.1972)).
10 Id. (citing art. I, § 9, Fla. Const.; see also Dep't of Health & Rehab. Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993)).
11 Id. (citing Fla. Dep't of Revenue ex rel. R.A.E. v. M.L.S., 756 So.2d 125, 127 (Fla. 2d DCA 2000) (citing Benac v. Bree, 590 So.2d 536 (Fla. 2d DCA 1991); Marshall v. Marshall, 386 So.2d 11 (Fla. 5th DCA 1980)).
12 See Parker v. Parker, --- So.2d ----, 2007 WL 268780 *6, note 5 (Fla. 2007).
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