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573 So. 2d 862

Docket No. 90-789.

Maf v. Glk

M.A.F., Appellant, v. G.L.K., Appellee.

District Court of Appeal of Florida

Decided October 10, 1990.

Rehearing Denied February 22, 1991.

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District Court of Appeal of Florida · decided 1990-10-10

Cited by 8 later decisions — most recently February 2007

8 state decisions

Key passage — most relied on by later courts

“Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized. At common law the presumption was at one time virtually conclusive. [Citations omitted]. .. . The rule is well established in this country that the husband may make the attack, but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony. [Citations omitted]. The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to clearly remove the presumption of legitimacy. The evidence must more than cast a strong suspicion or grave doubt on the paternity of the child. * * * * * * There is authority that the presumption is weakened in cases where it is shown that the child was born in wedlock but conceived prior thereto. [Citations omitted]. The better view which is adhered to by most courts is to the effect that under such circumstances the presumption is not weakened. We prefer to adhere to the latter rule. It is supported by public policy and a wealth of authority.”

quoted by 1 later decision, including Pitcairn v. Vowell

“when a wife knows that her husband is not the father of her children, and the husband does not know, concealment of that knowledge in a divorce proceeding involving child support is extrinsic fraud upon the court. The husband's petition was not barred by the doctrine of res judicata or the one year limitation of actions provision of Florida Rule of Civil Procedure 1.540(b).”

quoted by 1 later decision, including 950 So. 2d 388 - Parker v. Parker

Relies on 453 So. 2d 375 - DeClaire v. Yohanan · Eldridge v. Eldridge

Good law ✅— No negative treatment on recordhow we know

Decided 1990-10-10

View the full empirical analysis of this case →

¶1*863 M.A.F., pro se.

¶2Ben H. Wilkinson and Cathi C. Wilkinson, Tallahassee, for appellee.

¶3SHIVERS, Chief Judge.

¶4The former wife appeals a final judgment granting her former husband's petition to vacate the child support provisions of a settlement agreement which was incorporated into their 1982 final judgment of dissolution. Appellant is the mother of the three children born during the couple's marriage. The trial court found the former wife's "concealment from the Husband of the fact that he is not the biological father of the children constitutes extrinsic fraud." We affirm.

¶5The legitimacy of children born during the marriage is "one of the strongest rebuttable presumptions known to the law... ." Eldridge v. Eldridge,153 Fla. 873, 16 So.2d 163 (Fla. 1944). The wife admits, however — and Human Leukocyte Antigen Blood Grouping testing confirms — that the husband is not the father of any of the three children. The record reveals competent, substantial evidence that at the time of the parties' divorce, the husband had no doubts about being the children's father. The wife knew he was not the father and she concealed that fact until approximately four years after the divorce.

¶6A husband is entitled to presume he is the father of his wife's children. A husband has no affirmative duty in a divorce proceeding to question the virtue of his wife and the legitimacy of his children absent a sound basis to doubt otherwise. We therefore hold that when a wife knows that her husband is not the father of her children, and the husband does not know, concealment of that knowledge in a divorce proceeding involving child support is extrinsic fraud upon the court. The husband's petition was not barred by the doctrine of res judicata or the one year limitation of actions provision of Florida Rule of Civil Procedure 1.540(b). See DeClaire v. Yohanan,453 So.2d 375 (Fla. 1984).

¶7We conclude that the trial court did not abuse its discretion by refusing to require the former wife to reimburse monies already paid toward child support when there is no evidence that the funds paid were used for purposes other than support.

¶8AFFIRMED.

¶9JOANOS and ZEHMER, JJ., concur.

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