Whitney v. Hall

District Court of Appeal of Florida

Whitney v. Hall

434 So. 2d 40, 1983 Fla. App. LEXIS 19824

CourtDistrict Court of Appeal of Florida

DecidedJuly 8, 1983

DocketNo. AO-110

StatusPublished

Cited by3 cases

This text of 434 So. 2d 40 (Whitney v. Hall) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitney v. Hall, 434 So. 2d 40, 1983 Fla. App. LEXIS 19824 (Fla. Ct. App. 1983).

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Opinion

WENTWORTH, Judge.

Appellant seeks review of an order granting summary judgment in favor of appellee in an action brought by appellant to determine the paternity of a minor child. The summary judgment was predicated upon the existence of a prior order dissolving the marriage of appellee and the child’s mother and adopting a settlement agreement indicating that the minor is a child of the marriage. We conclude that the dissolution decree does not preclude appellant from maintaining his declaratory judgment action, and we therefore reverse the order appealed.

Although the paternity of the child was addressed in the prior order of dissolution, appellant was not a party to that order and the record on appeal does not indicate that he either participated in or acquiesced to that adjudication; therefore, neither res judicata nor estoppel would apply to bar the instant action. See Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983). In the circumstances of the present case we agree with Nostrand that, if the requisite standing under Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), is established, the existence of a prior dissolution decree addressing the issue does not preclude a putative father from obtaining a declaratory judgment as to the paternity of a minor child.

Accordingly, the order appealed is reversed and the cause remanded for further proceedings.

ROBERT P. SMITH, Jr., and ZEHMER, JJ., concur.

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WENTWORTH, Judge.

Appellant seeks review of an order granting summary judgment in favor of appellee in an action brought by appellant to determine the paternity of a minor child. The summary judgment was predicated upon the existence of a prior order dissolving the marriage of appellee and the child’s mother and adopting a settlement agreement indicating that the minor is a child of the marriage. We conclude that the dissolution decree does not preclude appellant from maintaining his declaratory judgment action, and we therefore reverse the order appealed.

Although the paternity of the child was addressed in the prior order of dissolution, appellant was not a party to that order and the record on appeal does not indicate that he either participated in or acquiesced to that adjudication; therefore, neither res judicata nor estoppel would apply to bar the instant action. See Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983). In the circumstances of the present case we agree with Nostrand that, if the requisite standing under Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), is established, the existence of a prior dissolution decree addressing the issue does not preclude a putative father from obtaining a declaratory judgment as to the paternity of a minor child.

Accordingly, the order appealed is reversed and the cause remanded for further proceedings.

ROBERT P. SMITH, Jr., and ZEHMER, JJ., concur.

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434 So. 2d 40, 1983 Fla. App. LEXIS 19824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-hall-fladistctapp-1983.

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