Prater v. Prater 491 So. 2d 1280

DAUKSCH, Judge.

This is an appeal from a marriage dissolution judgment. On appeal is that portion of the judgment which requires the appellant to provide child support for a child which appellant says is not his. In the petition for dissolution, appellant alleged that he was not the father. Because appel-lee failed to answer the complaint, a default was entered against her; the allegation is thus taken as true. After default was entered, appellee wrote a letter to the trial court admitting that appellant was not the father of her child.

Although we have no transcript of the final hearing, the appellant’s brief and the final judgment indicate that it was an uncontested hearing with no appearance by or on behalf of appellee. The paltry record and brief, including the pleadings and the judgment, indicate that appellant is not the father of appellee's child, but was married to appellee at the time the child was bom.

The trial court presumed appellant to be the father of the child by virtue of the fact that he was married to appellee at the time of the child’s birth, and thus ordered appellant to pay child support. This order was made despite the court’s awareness and acknowledgment of evidence from both sides that appellant was not the natural father of the child. Instead, the court directed the parties to make diligent efforts to locate and identify the natural father.

A presumption of paternity is re-buttable. Albert v. Albert, 415 So.2d 818 (Fla. 2d DCA 1982). The testimony and the evidence before the trial court apparently all rebut the presumption and the trial judge himself seems to concede that appellant is not the father of appellee’s child.

Appellee has not filed a brief in this court or done anything to support the judgment, either before trial or on appeal except to oppose a motion for rehearing below by writing a letter in which she states that appellant is the father of her child. This letter can be, and is, disregarded as a handclapping cheer for a windfall award she has always admitted she had no right to have.

That portion of the final judgment which orders appellant to pay $130 per month in child support is reversed. On all other points, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part.

UPCHURCH, C.J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

I agree with the result in this case: the court’s order requiring appellant to pay child support should be stricken. But, beyond that this court should not go. The issue of paternity was not tried in this case in such a manner as to be binding on the child, appellee, or any other party. I write this special concurrence to demonstrate that this is the situation in this case, all hyperbole in the majority opinion notwithstanding.

This was a typical ex parte dissolution case. Appellant/husband was living in Florida; his wife (appellee) and purported child were living in New Jersey. Appellee was served in New Jersey, pursuant to the Florida long-arm statute.1 She did not appear in this case at any stage, nor was she represented by counsel below or on appeal. *1282Nor did appellee file any pleading or “answer” which might subject her to the jurisdiction of the Florida court.

A default was entered against appellee on April 9, 1985. On April 10, 1985, the court filed a letter from appellee, which the majority opinion calls an “answer.” However, this is an erroneous characterization. Appellee’s letter was written and mailed from New Jersey; and it was addressed to appellant’s attorney. In the letter appellee said there were “no children” of this marriage. The appellant’s attorney then mailed the letter to the court, without any authority to do so. This fact is demonstrated by the envelope attached to the letter which shows it was mailed in Orlando, and which bears the return address of appellant’s attorney, Greenberg & Lester, 292 U.S. Highway 17-92, Fern Park, Florida.

It is well established in Florida that in. an ex parte dissolution case where one party resides outside of Florida, and that party does not appear in the suit, the Florida court has jurisdiction solely to grant the divorce. It cannot determine support obligations, nor determine property rights between the parties; nor can it make a binding determination concerning the paternity of a non-resident child. See Sorrells v. Sorrells, 82 So.2d 684 (Fla.1955); Kruvand v. Kruvand, 59 So.2d 857 (Fla.1952); Pawley v. Pawley, 46 So.2d 464 (Fla.), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950); Wright v. Wright, 411 So.2d 1334 (Fla. 4th DCA 1982); Hunter v. Hunter, 359 So.2d 500 (Fla. 4th DCA), cert. denied, 365 So.2d 712 (Fla.1978); Ciociola v. Ciociola, 302 So.2d 462 (Fla. 3rd DCA 1974); Storer v. Storer, 305 So.2d 212 (Fla. 3rd DCA 1974), cert. denied, 346 So.2d 994 (Fla.), cert. denied, 434 U.S. 955, 98 S.Ct. 482, 54 L.Ed.2d 314 (1977); Klein v. Klein, 113 So.2d 855 (Fla. 3rd DCA), cert. denied, 116 So.2d 773 (Fla.1959). The determination of the paternity of this child in this case must be left to another day and another court with jurisdiction over the parties.