Family Law Appellate Update for week ending 10/7/16

FelixBaseman
FelixBaseman

Sheridan v. Rennhack (First DCA, October 4, 2016)

The trial court entered a final judgment of paternity finding that Sheridan was the legal and biological father of the parties’ child.  Sheridan did not contest this finding.

After entry of the final judgment, Sheridan took a paternity test that showed he was want the father.  Sheridan filed a motion to set aside the judgment under rule 1.540(b)(3) arguing that the judgment was the product of fraud because Sheridan had relied on the mother’s statements regarding paternity.  The trial court dismissed the motion.

Sheridan thereafter filed a petition to disestablish paternity pursuant to section 742.18, Florida Statutes.  Instead of arguing fraud, Sheridan asserted that the petition was based on newly discovered evidence since entry of the final judgment.  The mother moved for summary judgment and the trial court granted her motion.

The First DCA reversed. First, it noted that the trial court was not obligated to deny the petition simply because it had dismissed the prior motion to set aside the judgment because the trial court had not considered whether there had been newly discovered evidence when ruling on that issue.

Second, the Court explained that although there is precedent for holding that a paternity test after the fact is not “newly discovered evidence,” such conclusion is a fact-based inquiry.  The Court agreed that if Sheridan had not exercised his due diligence during the initial paternity proceedings that he would be barred from relief.  However, if Sheridan could present circumstances explaining why the late acquisition of the paternity test constituted “due diligence,” then he may be able to succeed on his petition.  Accordingly, the matter was not ripe for summary judgment.

Korkmaz v. Korkmaz (First DCA, October 4, 2016)

The trial court dismissed the father’s supplemental petition to modify timesharing and the father appealed.  The First DCA affirmed.

The father filed a supplemental petition to modify timesharing alleging that the mother was alienating him from and undermining his relationship with his daughter.  In support of this “conclusory” statement, the father gave examples of communication and cooperation issues that he had with the mother, along with examples of their hostile relationship.  The trial court dismissed the father’s petition as legally insufficient.  The father appealed and the First DCA affirmed.

The District Court noted that although parental alienation may be grounds for a modification of timesharing, the moving party must still allege the ultimate facts that entitle him or her to such modification.  Here, the facts alleged related only to communication and hostility issues between the parties, which are insufficient as a matter of law—whether proven true or not—to justify a modification of timesharing.  Therefore, the trial court was right to dismiss the petition.