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498 So. 2d 1008

498 So.2d 1008

11 Fla.L.Weekly 2640

Docket No. 85-2917.

STATE, DHRS v. Wright

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES OFFICE OF CHILD SUPPORT ENFORCEMENT, Appellant, v. Larry Alphonso WRIGHT, Appellee.

District Court of Appeal of Florida

Decided December 10, 1986.

District Court of Appeal of Florida · decided 1986-12-10

Key passage — most relied on by later courts

“the minor children born of the marriage,”

quoted by 1 later decision, including Parker v. Parker

Relies on 395 So. 2d 640 - Johnson v. Johnson · 276 So. 2d 227 - Hensel v. Hensel

Good law ✅— No negative treatment on recordhow we know

Decided 1986-12-10

How this case has been cited

Cited by 12 later decisions — most recently December 2005

12 state decisions

60198619902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Geraldyne H. Carlton of Carlton & Carlton, Lakeland, for appellant.

¶2Dennis A. Lopez of Rood and Associates, Tampa, for appellee.

¶3GRIMES, Acting Chief Judge.

¶4Appellant appeals from a nonfinal order entered nine years subsequent to a final judgment of dissolution of marriage requiring a Human Leukocyte Antigens blood test to determine paternity.

¶5Final judgment of dissolution of marriage of the wife, Joyce Wright, and appellee, Larry Wright, was entered on February 5, 1976. By the terms of the decree, the wife was awarded custody of "the minor child born of the marriage." Appellee was ordered to pay child support. At the time of dissolution, neither party contested the issue of paternity nor appealed the final judgment.

¶6In 1985, appellant, HRS, initiated an action on behalf of the wife for an increase in child support. In defending the petition *1009 for modification of the final judgment, appellee asserted for the first time that he was not the biological father of the child. In support of denial of paternity, appellee submitted affidavits signed by Rudolph Harris, Jr., and Joyce Wright acknowledging that Harris was the child's biological father. The court ordered the wife and the child to submit to blood tests for the purpose of determining paternity. HRS appealed.

¶7We treat this as a petition for certiorari as we did in Department of Health & Rehabilitative Services ex rel. Lara v. Lara, No. 86-638 (Fla. 2d DCA Oct. 8, 1986) [11 F.L.W. 2178], and Johnson v. Johnson,395 So.2d 640 (Fla. 2d DCA 1981). In those cases, as here, the final judgment of dissolution resolved the issue of paternity. Therefore, the issue is res judicata.

¶8Appellee's reliance upon Florida Rule of Civil Procedure 1.540(b)(5) which states that a party may be relieved from a final judgment when "it is no longer equitable that the judgment or decree should have prospective application" is misplaced. This provision contemplates equities that have arisen after the final judgment rather than those which would have been defenses to the action. Hensel v. Hensel,276 So.2d 227 (Fla. 2d DCA 1973).

¶9On the authority of Lara and Johnson, we quash the order and remand for further proceedings.

¶10CAMPBELL and SCHOONOVER, JJ., concur.

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