Opposition — Perez v. Stevens

In the Supreme Court of the United States

No. 78-1809

RICHARD EUGENE PEREZ,

Appellant / Petitioner,

vs. ¢

DARLENE STEVENS,

Appellee/Respondent.

AppEAL FROM THE SUPREME COURT OF FLORIDA

QUE RESPONDENT'S REPLY BRIEF

Epwarp L, MAGILL

MacILL, SEVIER & RE, P. A.

Suite 730 Ingraham Building

25 Southeast Second Avenue

Miami, Florida 33131

Attorneys for Appellee/Respondent

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo, 64106, (816) 421-8050

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TABLE OF CONTENTS

PRELIMINARY STATEMENT 2..c.....cccccssccscocsisscssacssesees. 1

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STATEMENT ee Ee MD asipnosecctnnseinstiaasvehicnmssiends 2

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APPENDIX—

Chapter 742, Florida Statutes, F.S.A. (1977) De-

termination of Paternity ........00.. eee wee |

Petition for a Final Judgment Establishing Pater-

ARS GE GARR TIE i cisserenggencicstrsnecsnnstnonsnias App.1

Motion to Dismiss and/or Summary Judgment ....App.3

SUR SO cisissinnsiesniventniatasnenbtadeopeabarsenntpeticsha App.5

Circuit Court’s Order on Respondent’s Motion to

SEINE: - <iicaisinciccsusibaconieehboirvinuhincdanscuresendignalipmamcnbenbeobeed App.6

Excerpt from Transcript of Hearing on Motion to

RII seniktivsccedassuonsaisipieesecnsconteeshdjyabichaplatienpimnccesesuaacled App.7

Opinion, District Court of Appeal of Florida, Tird

District, September 26, 1978 .......0..0..........::.ccc0-0- App.8

Order, District Court of Appeal of Florida, Third

District, October 20, 1978, denying petition for

NINES sis carcrh satis sacisewDhiatontecntinesh debates acalsbiedid App.10

Order, Supreme Court of Florida, March 23, 1979,

denying certiorari

ogg t pO yy He) gh) 9s, OSE a App.12

II

Table of Citations

CASES

(United States Supreme Court)

Califano v. Webster, 430 U.S. 313 (1977) ................ 9

Kahn v. Shevin, 416 U.S. 351 (1974) .........00...22.2..--- 10

Lalli v. Lalli, 47 U.S.L.W. 4061 (opinion filed De-

eeber: 55; Sere) ose eee 8

Parham v. Hughes, 47 U.S.L.W. 4457 (opinion filed

BE Bs TD oiiricisechccicaesencinbecanissidaeaelguaitiaeng nacaditle 8

Stanley v. Illinois, 405 U.S. 645 (1972)... 7,8

( Florida )

Bishop v. State, 136 Fla. 268, 186 So. 413 (1939) .... 6

Brown v. Bray, 300 So.2d 668 (Fla. 1974) -............... 7

Ford v. Loeffler, 363 So.2d 23 (Fla.3 DCA 1978) .... 7

Gammon v. Cobb, 335 So.2d 261 (Fla. 1976) .......... 7,9

In Re Estate of Burris, 361 So.2d 152 (Fla. 1978) .... 7

Knauer v. Barnett, 360 So.2d 399 (Fla. 1978) ........ 9

Lorenz v. Jiminez, 163 So.2d 500 (Fla. 3 DCA 1964) 6

Mixon v. Mize, 198 So.2d 373 (Fla. 1 DCA 1967) .... 4,7

Reed v. Reed, 354 So.2d 864 (Fla. 1978) ........00....... 9

State v. Roe, 99 Fla. 1032, 128 So. 7 (1930) ............ 6

(Other Jurisdictions )

Crane v. Battle, 307 N.Y.S.2d 355 (1970) —....0000...... 7

In Re: Lisa R., 119 Cal. Rptr. 475 (Calif 1975) ... 7

Johannesen v. Pfeiffer, 387 A.2d 1113 (Maine 1978) 7

Pettus v. Dawson, 92 Tex. 18, 17 S.W. 714 (1891) 5

Slawek v. Stroh, 215 N.W.2d 9 (Wisc. 1974) ............ 7

State v. Nestaval, 72 Minn. 415, 75 N.W. 725 (1898) 5

III

State ex rel. Lewis v. Lutheran Social Services of

Wisconsin, 207 N.W.2d 826 (Wisc. 1973) ............ 7

Willmott v. Decker, 541 P.2d 13 (Hawaii 1975) .. 7

(Statutes)

Chapter 742, Florida Statutes, F.S.A. 20.22... 3, 6, 8

$742.011, Florida Statutes, F.S.A. oo... 2, 3, 4, 5,6, 9

$742.021, Florida Statutes, F.S.A. .......................c...0... 3

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In the Supreme Court of the United States

No. 78-1809

RICHARD EUGENE PEREZ,

Appellant /Petitioner,

VS.

DARLENE STEVENS,

Appellee/Respondent.

APPEAL FROM THE SUPREME COURT OF FLORIDA

APPELLEE/RESPONDENT’S REPLY BRIEF

PRELIMINARY STATEMENT

The petitioner, RICHARD EUGENE PEREZ, was the

plaintiff in the Circuit Court, appellant in the District

Court of Appeal of Florida, Third District, and the peti-

tioner in the Supreme Court of Florida. The respondent,

DARLENE STEVENS, was the defendant in the Circuit

Court, appellee in the District Court of Appeal of Florida,

and the respondent in the Supreme Court of Florida. In

this reply brief the petitioner will be referred to as PEREZ

and the respondent as STEVENS. The symbol that will

be used is as follows:

App. for appendix to brief.

STATEMENT OF THE CASE

On January 7, 1977, a petition for final judgment

to establish the paternity of Alison Stevens was filed by

PEREZ in the Circuit Court, Sixteenth Judicial Circuit

of Florida in and for Monroe County (App.1). On May

5, 1977, STEVENS filed her motion to dismiss and/or

for summary judgment (App.3). By order dated Novem-

ber 10, 1977, the Circuit Court dismissed PEREZ’ complaint,

with prejudice (App.6), and he appealed to the District

Court of Appeal of Florida, Third District. On September

26, 1978, the Third District rendered its opinion affirming

the Circuit Court’s dismissal of the PEREZ complaint

(App.8). Rehearing was denied by the same Court on

October 20, 1978 (App.10). PEREZ filed a petition for

writ of certiorari with the Supreme Court of Florida on

October 26, 1978, which was denied by that Court on

March 23, 1979 (App.11). This appeal or petition for writ

of certiorari followed.

STATEMENT OF THE FACTS

STEVENS disagrees with much of PEREZ’ statement

of the facts and, therefore, restates them for clarification.

On January 7, 1977, PEREZ, a married man, filed

his petition for final judgment against STEVENS, who

was single at the time, seeking to establish his paternity

of Alison Stevens, a minor child, pursuant to the provisions

of §742.011, Florida Statutes, F.S.A. (App.1).. In the

petition, PEREZ alleged that he was the natural father

of the child and that STEVENS was the natural mother.

The petition failed to allege that the child was illegitimate

and also failed to comply with the requirements of

3

$742.021, Florida Statutes, F.S.A., in that it was not veri-

fied (App.1). STEVENS (whose married name is DAR-

LENE STEVENS BANG) filed her verified motion to dis-

miss and/or for summary judgment in pro se prior to

retaining counsel. In her motion, STEVENS set forth

that the child was the natural born child of her husband,

Leif Otto Bang; the child had been legitimatized by her

marriage to Leif Otto Bang, who recognized the child

as his own, and that a birth certificate for the child had

been issued that listed STEVENS as the natural mother

and Leif Otto Bang as the natural father of the child.

A copy of the child’s birth certificate was attached as

an exhibit thereto (App.5). On October 21, 1977, the

circuit court heard argument on STEVENS’ motion and

thereafter dismissed PEREZ’ complaint, with prejudice,

by order dated November 10, 1977. The Circuit Court’s

order concisely stated that:

“1. Florida Statutes Chapter 742 precludes the peti-

tioner from seeking a Final Judgment establishing his

paternity of Alison Stevens; and

2. Florida Statutes Chapter 742 et seq., is constitu-

tional.” (App.6)

POINT ON APPEAL

Absent Legislative Revision of Section 742.011, Florida

Statutes, Providing Jurisdictional Basis for a Court

to Determine Paternity, Putative Father Is Without

the Right to Have Himself Declared the Father of a

Child Who the Mother Denied Is His and Who Has

Been Legitimatized by Mother’s Marriage to Child’s

Acknowledged Father.

ARGUMENT

The issue raised by PEREZ with reference to §742.011,

Florida Statutes, is misleading and erroneous in that it

does not involve a matter which was not raised in the

state trial or appellate courts. The Florida courts were

presented with the following question, to wit: absent leg-

islative revision of $742.011, Florida Statutes, providing

a jurisdictional basis for a court to determine paternity,

is a putative father without the right to have himself

declared the father of a child whom the mother has denied

is his? The Florida courts all answered that question

in the affirmative. PEREZ’ present position is at odds

with Florida law as announced in the case of Mixon v.

Mize, 198 So.2d 373 (Fla. 1 DCA 1967), in which the

District Court of Appeal of Florida, First District, recog-

nized the right of a putative father who had acknowledged

his relationship to an illegitimate child, manifested a gen-

uine interest in the child’s welfare and provided him with

support, to have visitation rights with the child. In Mixon

v. Mize, supra, the putative father was acknowledged by

the natural mother as enjoying that status with respect

to the illegitimate child and was the only father known

to the child prior to his parents’ separation and the natural

mother marrying another man. The putative father, al-

though married to another woman during his entire rela-

tionship to the natural mother, filed for divorce alleging

a common law marriage and praying for a decree of divorce

and custody of the illegitimate child. The natural mother

did not deny the putative father’s claim of paternity of

the child but, instead, denied the existence of a common

law marriage between the parties and prayed the court

to award her custody of the child. The First District

decided the rights of the putative father, and, there was

5

no denial of those rights under Florida law with reference

to visitation with the illegitimate child.

By definition a “bastard” is “an illegitimate child,”

born out of wedlock and who has not been subsequently

legitimatized by marriage. Pettus v. Dawson, 92 Tex. 18,

17 S.W. 714 (1891). A “putative father” is defined as

“the alleged or reputed father of an illegitimate child.”

State v. Nestaval, 72 Minn. 415, 75 N.W. 725 (1898). In

this case, at the Circuit Court level, before the Florida

appellate courts and in the petition presently pending be-

fore this Court, the only person claiming that Alison

Stevens is illegitimate is PEREZ, and the only person

claiming that he is the “putative father” is PEREZ himself.

STEVENS has denied the paternity claim of PEREZ from

its inception and, in her verified motion to dismiss and/or

for summary judgment, she stated that the child is the

natural child of her husband, Leif Otto Bang. STEVENS

also set forth in her verified motion that Alison Stevens

had been legitimatized by her marriage to Leif Otto Bang,

and by his acknowledgement of the child as his which

culminated in the official change of the child’s birth cer-

tificate from STEVENS’ maiden name to Bang’s surname.

During the proceedings before the Circuit Court, and in

particular of the time of the hearing on STEVENS’ motion,

the Circuit Court recognized the lack of any evidence

to traverse the facts recited therein that the child was

not illegitimate but was, in fact, “legitimate.” The Circuit

Court stated that §742.011, Florida Statutes, et seq., ap-

plied only where an illegitimate child was involved. The

trial court, in addition to the colloquy set forth on page

7 of PEREZ’ brief, also stated in response to the argument

of PEREZ’ counsel as to the applicability of §742.011,

Florida Statutes, the following:

“No, but that only applies if there is an illegitimate

child. Somehow there is a recognition that the child

6

is the illegitimate child of the man. I think you’ve

got one hurdle to make before you start.” (App.7)

In dismissing the PEREZ complaint, with prejudice,

the Circuit Court acted in accordance with the Florida

law in refusing to allow any relief pursuant to the statute

because it was not shown that an illegitimate child was

involved. It is fundamental under Florida Bastardy Law,

Chapter 742, Florida Statutes, that before any party is

entitled to relief pursuant thereto, a determination or show-

ing that the child is a bastard is necessary in order for

a petitioner to be entitled to any relief as a matter of

law. See, State v. Roe, 99 Fla. 1032, 128 So. 7 (1930);

“ishop v. State, 136 Fla. 268, 186 So. 413 (1939); and

Lorenz v. Jiminez, 163 So.2d 500 (Fla. 3 DCA 1964).

In the Lorenz case, supra, the court dealt with the

requirements which would entitle a party to relief under

$742.011, Florida Statutes, et seq., and determined that

in order for any party to be entitled to any relief under

the Florida Bastardy Statutes, the child in question had

to be illegitimate.

In the instant case an attempt is being made by

PEREZ, a married man, by means of a bastardy proceeding

to legally stigmatize the origin of a child who was born

out of wedlock but subsequently legitimatized. That is

the type of inexplicable legal action which PEREZ would

like to have this Court condone as being in the best inter-

ests of the child.

PEREZ’ issue on appeal is not supported by the facts

of the case at bar. The purported unconstitutionality of

§742.011, Florida Statutes, for improperly limiting a cause

of action to determine the paternity of an illegitimate

child solely to the mother was never a question because

the legitimacy of Alison Stevens was never properly

brought into issue by the facts presented to the various

7

state courts. The District Court of Appeal of Florida,

Third District, in disposing of PEREZ’ appeal from the

Circuit Court’s dismissal of his complaint, with prejudice,

held that: :

“In the instant case, Appellee denies that Appellant

is the father of the child. We are unaware of any

authority which gives a putative father a cause of

action to establish that he is the father of a child

who the mother denies is his. Chapter 742, Florida

Statutes (1977), provides the jurisdictional basis for

a Court to determine paternity. No case interpreting

this Chapter has gone so far as to read into it an

intent to give such a cause of action to a putative

father. Absent legislative revision of Chapter 742,

a putative father is without the right to have himself

declared the father of a child who the mother denies

is his.” See, Ford v. Loeffler, 363 So.2d 23 (Fla.

3 DCA 1978) (App.9-10)

The instant case contains additional factors not found

in the Ford v. Loeffler case, supra, those being that the

natural mother, subsequent to the birth of the child, mar-

ried the father of the child who acknowledged the child

as his own and the child’s name on the birth certificate

was accordingly changed to that of the acknowledged fa-

ther.

The cases relied upon by PEREZ in his brief' are

readily distinguishable on the facts and the law from the

1. Stanley v. Illinois, 405 U.S. 645 (1972); In Re Estate of

Burris, 361 So.2d 152 (Fla. 1978); Ford v. Loeffler, 363 So.2d 23

(Fla. 3 DCA 1978); Johannesen v. Pfeiffer, 387 A.2d 1113 (Maine

1978); Gammon v. Cobb, 335 So.2d 261 (Fla. 1976); In Re: Lisa R.,

119 Cal. Rptr. 475 (Calif. 1975); Willmott v. Decker, 541 P.2d 13

(Hawaii 1975); Brown v. Bray, 300 So.2d 668 (Fla. 1974);

Slawek v. Stroh, 215 N.W.2a 9 (Wisc. 1974}; State ex rel. Lewis

v. Lutheran Social Services of Wisconsin, 207 N.W.2d 826 (Wisc.

1973); Crane v. Battle, 307 N.Y.S.2d 355 (1970); and Mixon v.

Mize, 198 So.2d 373 (Fla. 1 DCA 1967).

8

situation here present. The cited cases deal with the issue

of paternity in situations where the child involved was

admittedly illegitimate. That essential condition precedent

to maintaining a paternity action is non-existent in the

case, sub judice, because Alison Stevens is legitimate.

Further, PEREZ sought no affirmative relief as a putative

parent such as child custody, visitation or support, but

merely prayed the Court for a bare declaration of his

paternity of a legitimate child. The Constitutional protec-

tion pronounced in cases such as Stanley v. Illinois, 405

U.S. 645 (1972), is directed at putative parents’ rights

such as child custody, visitation, participation in adoption

proceedings and support. None of the cases cited by

PEREZ have elevated an action to obtain a bare declara-

tion as to the paternity of a child, without seeking some

other affirmative relief, to a constitutionally protected

right. Further, in proceedings where the rights of putative

parents are litigated, the courts have viewed such situations

on an individual case basis and have kept the interests

of the child paramount in any decision that has been

rendered. Stanley v. Illinois, supra.

Assuming, arguendo, that PEREZ had raised sufficient

facts to challenge the constitutionality of Chapter 742,

Florida Statutes (1977), or its application to this particular

case, his appeal or alternative petition for writ of certiorari

to this Court is inappropriate because he does not raise

a substantial federal question. In two recent decisions,

Parham v. Hughes, 47 U.S.L.W. 4457 (opinion filed April

24, 1979), and Lalli v. Lalli, 47 U.S.L.W. 4061 (opinion

filed December 11, 1978), this Court upheld the validity

of state illegitimacy statutes. The rationale in both of

these cases was that gender based distinctions in illegiti-

macy statutes do not violate equal protection when the

statutory classifications are rationally related to specified

legitimate state interests. This principle has been followed

9

in Florida cases that have constitutionally upheld the chal-

lenged bastardy statute in situations where the statutory

difference had a just and reasonable relationship to a legiti-

mate state purpose. Reed v. Reed, 354 So.2d 864, 865

(Fla. 1978) awl Gammon v. Cobb, 335 So.2d 261 (Fla.

1976).

The purpose of §742.011, Florida Statutes, is to pro-

vide a mechanism ‘whereby a woman seeks to have one

who is unwilling to accept the burdens of parenthood

adjudicated the father of her child so that he may be

legally compelled to accept those responsibilities.” Knauer

v. Barnett, 360 So.2d 399 (Fla. 1978). The law serves

the important objective of providing support for illegiti-

mate children without making them a burden on the State.

The sole effect. of this statute is to provide for a basis

of recovery from the natural father to support his child,

because a natural mother bears the responsibility of provid-

ing support for her child. The identity of a child’s mother

is evident and no legal action is needed to legalize

a mother’s responsibility to support her child.

Moreover, the welfare of the child is at stake here.

If PEREZ is allowed to obtain a bare declaration as to

his status as a parent of an otherwise legitimatized child,

it would thrust strong undesirable effects upon the mother

and, more importantly, the child. It would also disrupt

the integrity of a family in which a child born out of

wedlock has been subsequently legitimatized.

This example illustrates that the challenged Florida

statute is in compliance with this Court’s holding in Cali-

fano v. Webster, 430 U.S. 313 (1977), in that it serves

an important governmental objective, the cushioning of

the financial impact from the birth of an illegitimate child

upon that sex for which that event has traditionally im-

posed the heavier burden, and classification contained

10

therein is substantially related to achieving those objec-

tives. Therefore, it does not violate the equal protection

clause.

PEREZ has failed to show any arbitrary discrimination

pursuant to the Florida illegitimacy statute or any lack

of compelling state interest. Laws distinguishing between

males and females have been upheld by this Court where

a reasonable basis for such classification has been found.

Kahn v. Shevin, 416 U.S. 351 (1974). PEREZ has failed

to meet the threshold requirements in asserting a due

process challenge, precluding the constitutional issue from

being reached.

CONCLUSION

For the reasons hereinabove set forth, should the Court

elect to treat PEREZ’ petition as an appeal, then the deci-

sion of the Florida Courts should be affirmed. Alterna-

tively, should the Court choose PEREZ’ petition as an appli-

cation for writ of certiorari, then the petition should be

denied.

Respectfully submitted,

By Epwarp L. MAGILL

MAGILL, SEVIER AND RErp, P. A.

Suite 730 Ingraham Building

25 Southeast Second Avenue

Miami, Florida 33131

Attorneys for Appellee/Respondent

App.1

APPENDIX

CHAPTER 742, FLORIDA STATUTES, F.S.A. (1977)

DETERMINATION OF PATERNITY

742.011 Determination of paternity proceedings; circuit

court jurisdiction

Any unmarried woman who shall be pregnant or delivered

of a child may bring proceedings in the circuit court,

in chancery, to determine the paternity of such child.

742.021 Same; venue, process, complaint

The proceedings shall be by verified complaint filed in

the circuit court of the county in which the woman resides

or of the county in which the alleged father resides. The

complaint shall aver sufficient facts charging the paternity

of the child. Process directed to the defendant shall issue

forthwith requiring the defendant to file his written de-

fenses to the complaint in the same manner as suits in

chancery. Upon application and proof under oath, the

court may issue a writ of ne exeat against the defendant

on such terms and conditions and conditioned upon bond

in such amount as the court may determine.

PETITION FOR A FINAL JUDGMENT

ESTABLISHING PATERNITY OF

ALLISON STEVENS

(Filed January 7, 1977)

COMES NOW the Petitioner, RICHARD EUGENE

PEREZ, and moves this Honorable Court for the entry

App.2

of a Final Judgment establishing the paternity of Allison

Stevens, and as grounds therefore, states as follows:

1. That RICHARD EUGENE PEREZ is the natural

father of Allison Stevens, the minor child for whose benefit

the above entitled proceeding is being brought.

2. That DARLENE STEVENS is the mother of Al-

lison Stevens the minor child for whose benefit the above

preceding the birth of the minor child.

3. That Allison Stevens was born out of wedlock

on the 22nd day of June, 1976, at Key West, Monroe

County, Florida.

4. That DARLENE STEVENS has never been mar-

ried and was not married during the 12 month period

preceeding the birth of the minor child.

5. That RICHARD EUGENE PEREZ contributed to-

wards the expenses of the birth of the minor child by

both cash and checks.

6. That DARLENE STEVENS accepted said contribu-

tions in both cash and check.

7. That DARLENE STEVENS has acknowledged on

several occasions that RICHARD EUGENE PEREZ is the

natural father of Allison Stevens.

WHEREFORE, the Petitioner prays this Honorable

Court to enter a Final Judgment declaring that RICHARD

EUGENE PEREZ is the natural father and legal father

of Allison Stevens.

s/ Richard Eugene Perez s/ Manuel W. James

RICHARD EUGENE PEREZ MANUEL W. JAMES

Attorney for Petitioner

P. O. Box 1057

Key West, Florida 33040

App.3

MOTION TO DISMISS AND/OR SUMMARY

JUDGMENT

(Filed May 5, 1977)

COMES NOW the Defendant, DARLENE STEVENS

BANG, the former DARLENE STEVENS, and moves this

Court for an Order Dismissing this cause with prejudice

and alleges as follows:

1. That she, Darlene Stevens Bang, is the natural

mother of the minor child Alison Stevens Bang.

2. Leif Otto Bang is the natural father of the minor

child Alison Stevens Bang.

3. The minor child was born out of wedlock, but

the natural parents were married on the 4th day of April,

1977 at Williamstad, Curacao, Netherlands Antiles.

4. The minor child was legitimized by the subsequent

marriage of the natural parents.

5. The Department of Health and Rehabilitative Ser-

vices issued a birth certificate showing the said Darlene

Stevens Bang and Leif Otto Bang as the natural parents

of the said Alison Stevens Bang. A copy of the Certificate

of Live Birth is attached hereto and by reference made

a part hereof.

s/ Darlene Stevens Bang

DARLENE STEVENS BANG

App.4

STATE OF FLORIDA

ss

COUNTY OF MONROE

BEFORE ME the undersigned authority personally

appeared DARLENE STEVENS BANG, to me well known

and known to me to be the person described in and who

executed the foregoing instrument, and acknowledged to

and before me that she has read the foregoing instrument

and fully understards the contents thereof, and acknowl-

edged to and before me that she executed the said instru-

ment for the purpose therein expressed.

WITNESS my hand and official seal this 5th day. of

May, 1977.

s/ Raymond R. Lord

Notary Public -. State of Florida

My Commission Expires: 1-18-81

I HEREBY CERTIFY that a true and correct copy

of the foregoing Motion to Dismiss and/or Summary Judg-

ment was mailed to the office of ALVIN E. ENTIN, ESQ.,

Attorney at Law, 2020 N. E. 163rd Street, Suite 300, North

Miami Beach, Florida 33162, this 5th day of May, 1977.

s/ Darlene Stevens Bang

DARLENE STEVENS BANG

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App.6

IN THE CIRCUIT COURT OF THE 16th JUDICIAL

CIRCUIT IN AND FOR MONROE

COUNTY, FLORIDA.

CASE NO. 77-20-CA-18

RICHARD EUGENE PEREZ,

Petitioner,

VS.

DARLENE STEVENS,

Respondent.

ORDER ON RESPONDENT’S MOTION

TO DISMISS

THIS CAUSE CAME on to be heard pursuant to Re-

spondent’s Motion to Dismiss Petitioner’s Complaint. And

the Court, after hearing argument of Counsel, and review-

ing the Court file including Petitioner Counsel’s Memoran-

dum of Law in opposition to Respondent’s Motion to Dis-

miss, hereby makes the following findings of fact:

1. Florida Statutes chapter 742 precludes the Peti-

tioner from seeking a Final Judgment establishing his pa-

ternity of Allison Stevens.

2. Florida Statutes chapter 742 et seq., is constitu-

tional.

Based upon the foregoing findings of fact, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner’s petition for a final judgment establish-

ing paternity of Allison Stevens is dismissed against the

petitioner with prejudice.

App.7

DONE AND ORDERED in Chambers, Monroe County

this 10th day of November, 1977.

M. IGNATIUS LESTER

Judge Circuit Court

Copies furnished to:

Richard C. Entin

Hugh Papy

EXCERPT FROM TRANSCRIPT OF HEARING ON

MOTION TO DISMISS HELD ON OCTOBER 21, 1977,

IN THE CIRCUIT COURT OF THE SIXTEENTH

JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR

MONROE COUNTY, FLORIDA AT PAGE 8

THE COURT: No, but somehow that only applies

if there is an illegitimate child. Somehow if there is

recognition that the child is the illegitimate child of a

man. I think you have got one hurdle to make before

you start—

App.8

OPINION

Richard Eugene PEREZ,

Appellant,

V.

Darlene STEVENS,

Appellee.

No. 77-2395.

District Court of Appeal of Florida,

Third District

Sept. 26, 1978.

Rehearing Denied Oct. 20, 1978.

The Circuit Court, Monroe County, M. Ignatius Lester,

J., entered order on mother’s motion dismissing putative

father’s petition for final judgment establishing his pater-

nity as natural and legal father of minor child born out

of wedlock to mother. Putative father appealed. The

District Court of Appeal, Kehoe, J., held that absent legisla-

tive revision of chapter providing jurisdictional basis for

a court to determine paternity, putative father was without

right to have himself declared father of child who mother

denied was his.

Affirmed,

BASTARDS—8

Absent legislative revision of chapter providing juris-

dictional basis for a court to determine paternity, a putative

father is without right to have himself declared father

of a child who mother denies is his. West’s F.S.A. §742.-

011 et seq.

App.9

Franklin, Ullman, Kimler & Entin, North Miami

Beach, and Ronald A. Dion, Miami, for appellant.

Magill, Sevier & Reid and Hector J. Lombana, Miami,

Hugh R. Papy, Key West, for appellee.

Before BARKDULL, HUBBART and KEHOE, JJ.

KEHOE, Judge.

Appellant, petitioner below, brings this appeal from

an order on respondent’s [appellee] motion to dismiss

dated November 10, 1977, entered by the trial court dis-

missing his petition for a final judgment establishing his

paternity as the natural and legal father of a minor child

born out of wedlock to appellee. We affirm.

At common law, the putative father of an illegitimate

child had neither rights nor obligations toward that child.

When statutes were devised to protect the interests of

illegitimate children, the mother alone was given the right

to institute proceedings to determine paternity in order

that the innocent child have the benefit of support from

the father. See generally Gammon v. Cobb, 335 So.2d

261 (Fla. 1976); Clarke v. Blackburn, 151 So.2d 325 (Fla.

2d DCA 1963); and deMoya v. dePena, 148 So.2d 735 (Fla.

3d DCA 1963).

In the instant case, appellee denies that appellant is

the father of the child. We are unaware of any authority

which gives a putative father a cause of action to establish

that he is the father of a child who the mother denies

is his. Chapter 742, Florida Statutes (1977), provides the

jurisdictional basis for a court to determine paternity. No

case interpreting this Chapter has gone so far as to read

into it an intent to give such a cause of action to a putative

father. Absent legislative revision of Chapter 742, a puta-

tive father is without the right to have himself declared

the father of a child who the mother denies is his. Ford

App.10

v. Loeffler, ........ UE cin (Fla. 3d DCA, opinion filed

September 19, 1978). Accordingly, the order appealed is

affirmed.

Affirmed.

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1978

FRIDAY, OCTOBER 20, 1978

CASE NO. 77-2395

RICHAI.D EUGENE PEREZ,

Appellant,

vs.

DARLENE STEVENS,

Appellee.

Counsel for appellant having filed in this cause peti-

tion for rehearing, and same having been considered by

the court which determined the cause, it is ordered that

said petition be and it is hereby denied.

A True Copy

ATTEST:

/s/

Clerk District Court of

Appeal, Third District

cc: Ronald A. Dion

Magill, Sevier & Reid

/sh

(THE MANDATE IN THE ABOVE STYLED CAUSE HAS

TODAY BEEN ISSUED AND MAILED TO THE CLERK

OF THE CIRCUIT COURT IN AND FOR MONROE

COUNTY, FLORIDA)

App.11

SUPREME COURT OF FLORIDA

FRIDAY, MARCH 23, 1979

CASE NO. 55,396

District Court of Appeal, Third District

Case No. 77-2395

RICHARD EUGENE PEREZ

PETITIONER,

VS.

DARLENE STEVENS

RESPONDENT.

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Fla. R. App.

P.9.120, and it appearing to the Court that it is without

jurisdiction, it is ordered that certiorari is denied.

No Motion for Rehearing will be entertained by the

Court. See Fla.R.App. P. 9.330(d).

OVERTON, SUNDBERG, HATCHETT, and ALDERMAN,

JJ, concur

BOYD, Acting C.J., J., dissents

BDM

C: Hon. Louis J. Spallone, Clerk

Hon. M. Ignatius Lester, Judge

Hon. Ralph W. White, Clerk

Ronald A. Dion, Esquire

Magill, Sevier & Reid, P.A.

A True Copy

TEST:

Sid J. White

Clerk Supreme Court.

By: /s/ Barbara D Maxwell

Deputy Clerk

App.12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

Appellee/Respondent’s Reply Brief to the Supreme Court

of the United States was this ........ GAG OE icc , 1979,

mailed to Franklin, Ullman, Kimler & Entin, P. A., Attor-

neys for Appellant/Petitioner, 2020 N. E. 163rd Street,

Suite 300, North Miami Beach, Florida 33162.

By Epwarp L. MAGILL, Esq.