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P.G. v. E.W.

Florida Court of Appeal, Second District

November 30, 2011

P.G., Appellant,
v.
E.W., Appellee.

Page 778

Mark P. Kelly of Lopez, Kelly & Bible, P.A., Tampa, for Appellant.

Donald A. Foster of The Foster Law Group, P.A., Tampa, for Appellee.

DAVIS, Judge.

P.G., the Former Husband, challenges the trial court's final order denying his petition to disestablish his paternity as to A.G., the minor child of the Former Wife, E.W. We reverse.

The Former Husband and the Former Wife maintained an " on and off" relationship prior to their marriage. During a period when their relationship was " off," the Former Wife dated other gentlemen. The parties subsequently reconciled and moved in together after the Former Wife learned that she was pregnant. Upon the birth of A.G., the Former Husband signed the birth certificate as the father. Then in 1996, when A.G. was approximately two years old, the parties married. However, the union did not last, and the parties divorced in September 2004.

As a part of the dissolution proceeding, the Former Husband acknowledged that he was the father of A.G., and the final judgment of dissolution treated him as such by naming him primary residential parent for A.G. and requiring him and the Former Wife to equally share in the child's medical bills, dental bills, and other childcare-related expenses.

According to the Former Husband, A.G. began experiencing behavioral and mental health issues in June 2009. Recognizing that there was no history of mental health issues in his family, the Former Husband began to question whether, in fact, he was A.G.'s biological father. To satisfy his curiosity, he took A.G. to a medical lab that specialized in DNA testing. The clinical results indicated that there was a zero percent chance that he was A.G.'s biological father, prompting the Former Husband to file a petition to disestablish paternity pursuant to section 742.18, Florida Statutes (2009).

At the hearing on the Former Husband's petition, the Former Wife testified that the parties never used any type of birth control and that at the time of A.G.'s birth, she was confident that the Former Husband was the child's biological father. She further testified that two days before the child's birth, the Former Husband questioned her as to whether he was in fact the father of the child considering the timing of their reconciliation and the date of the child's conception. However, after she reassured him, the Former Husband asserted that he did not care who the father was; that as far has he knew, he was the father; and that he wanted to be the father for her. Finally, the Former Wife testified that the Former Husband declined her offer to have testing done once the child was born.

The Former Husband, however, maintained that he always had believed that he

Page 779

was A.G.'s natural father despite his being aware that the Former Wife had been involved with other men around the time of A.G.'s conception and despite the fact that during that same time he and the Former Wife always used a condom during sexual intercourse.

The trial court entered an order denying the Former Husband's petition and concluding (1) that the Former Husband could not avail himself of section 742.18's mechanism for disestablishing paternity because he was not a " male ordered to pay child support" as referred to in the statute, (2) that the new DNA test results did not provide newly discovered evidence because he " knew all along there was some chance [A.G.] was not his biological child," and (3) that the Former Husband was estopped from denying that he is A.G.'s biological father because " he acted in every way as [her] father and primary custodian even after having conclusive proof that he is not her biological parent." The court also made a specific determination that the Former Wife's testimony " that she and [the Former Husband] reconciled and moved in ‘ permanently’ after the possibility that there could be another biological parent to [A.G.]" was more believable than the Former Husband's testimony that prior to receiving the DNA test results, he always had believed himself to be A.G.'s biological father.

On appeal, the Former Husband first argues that the trial court erred in determining that section 742.18 was inapplicable here because the Former Husband has not been ordered to pay child support. We agree with the Former Husband. As part of the final judgment of dissolution of the parties' marriage, he was ordered to share equally with the Former Wife the child's medical, dental, and childcare-related expenses. Additionally, as the child's primary residential parent, the Former Husband unquestionably was obligated to contribute to this child's support. As such, for purposes of the statute, he may be considered a " male ordered to pay child support."

The Former Husband also argues on appeal that the trial court erred in determining that the DNA test results attached to his petition did not constitute the " newly discovered evidence" required by the statute. See ยง 742.18(1)(a), (2)(a).

Section 742.18(1) provides as follows:

(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 ...

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