                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

COLE D. FAHEY,                         NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-910

MELISSA KAY FAHEY,

     Appellee.
__________________________/

Opinion filed July 25, 2016.

An appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

Cole D. Fahey, pro se, Appellant.

Melissa Kay Fahey, pro se, Appellee.




PER CURIAM.

      Appellant seeks relief from the trial court’s order that incorporated the

findings and conclusions of the magistrate’s recommended report and denied

Appellant’s exceptions to the report. For the following reasons, we affirm the trial

court’s order.
                                   Background

      Appellant and Appellee were married in February 2010 upon discovering

that Appellee was pregnant. A child, T.C.F., was born in September. The parties

separated in June 2011, and Appellee moved to Georgia with T.C.F. While in

Georgia, Appellee reconnected with John Pearce, her ex-boyfriend.          Appellee

convinced Pearce to take a paternity test, which revealed that he was T.C.F.’s

biological father.

      Appellant filed for divorce in Santa Rosa County in September 2011. Both

Appellant and Appellee were represented by counsel in their divorce proceeding,

and upon advice of counsel, the parties voluntarily stipulated that Appellant was

not the biological father of T.C.F. The final judgment of dissolution of marriage

was entered on March 13, 2012. Paragraph 4 of the judgment incorporated the

parties’ stipulation:

      Genetic testing has revealed that the Husband is not the biological
      father of the minor child. The Wife states that John Pierce [sic] is the
      biological father of the minor child. By stipulation of the parties, the
      Husband, Cole D. Fahey, shall have no parental rights or
      responsibilities regarding the minor child, [T.C.F.].

      In August 2012, Appellee began seeing Appellant again. During this time,

Pearce was seeking to make T.C.F. his legitimate child, and he filed a petition for

legitimation and custody in the Georgia Superior Court in November 2012.




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Meanwhile, Appellee moved back to Florida with the child, and Appellant and

Appellee were remarried December 31, 2012.

      Appellant then sought to intervene in Pearce’s legitimation and custody

lawsuit on the basis that he was the legitimate and legal father of T.C.F. Appellant

also moved to dismiss Pearce’s petition on the same grounds, asserting that the

court lacked subject-matter jurisdiction. The Georgia court denied both motions.

In October 2014, the Georgia court rendered its final order on Pearce’s petition,

finding T.C.F. to be Pearce’s legitimate child and awarding him primary physical

custody. The order was affirmed by the Georgia appellate court, which held that

the stipulation contained in the final judgment of dissolution rendered in Florida

had effectively terminated Appellant’s parental rights.

      Shortly after the Georgia appellate court issued its opinion, Appellant filed a

pro se motion in the Santa Rosa Circuit Court, seeking relief from the final

judgment of dissolution of marriage pursuant to rule 1.540(b)(4), Florida Rules of

Civil Procedure.    Appellant sought to void Paragraph 4 of the judgment that

contained the stipulation on the grounds that it purported to terminate his parental

rights to T.C.F. without invoking the safeguards of chapter 39, Florida Statutes.

Appellee filed a motion in agreement with Appellant’s motion. The motions were

heard before a magistrate, and following the hearing, the magistrate’s report

recommended that Appellant’s petition for relief be dismissed with prejudice. The

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magistrate found that the stipulation was not a termination of parental rights, but

instead was a stipulation as to Appellant’s non-paternity; therefore, there was no

legal basis upon which to void the final judgment of dissolution. The parties’

exceptions to the magistrate’s recommended report were denied by the trial court,

and the court issued an order incorporating the report. This appeal followed.

                                      Analysis

      A trial court reviews a magistrate’s report to ensure the magistrate’s findings

are not clearly erroneous and that the magistrate has not misconstrued the law.

Boykin v. Boykin, 843 So. 2d 317, 320 (Fla. 1st DCA 2003). Meanwhile, the trial

court’s adoption of a magistrate’s report is reviewed for abuse of discretion.

Brown v. Brown, 149 So. 3d 108, 110 (Fla. 1st DCA 2014).

      Under Florida law, parental rights may only be terminated through adoption

or the strict procedures set forth in chapter 39, Florida Statutes; thus, an agreement

purporting to terminate parental rights is void as a matter of public policy. Casbar

v. Dicanio, 666 So. 2d 1028, 1029-30 (Fla. 4th DCA 1996). However, stipulations

or agreements concerning paternity can validly serve as the basis for a court’s

paternity determination. See Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997)

(noting “the parties stipulated that Michael Daniel was not the biological father of

the child”); Nevitt v. Bonomo, 53 So. 3d 1078, 1080 (Fla. 1st DCA 2010) (noting

the trial court found Nevitt to be the biological father of the child “based upon an

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agreement between Mr. Nevitt and Ms. Bonomo”); L.S.H. v. P.L.H., 739 So. 2d

1264, 1265 (Fla. 2d DCA 1999) (“L.S.H. acknowledged that P.L.H. was not the

biological father of a child conceived and born during the marriage. While this

stipulation is valid, the wife’s waiver of child support cannot bind the court.”

(emphasis added)).

      Here, as noted by the magistrate, there is no suggestion in the final judgment

of dissolution that the parties’ stipulation was a termination of parental rights, and

there was also no “Final Judgment of Termination of Parental Rights.” Rather, the

final judgment provided that, based on genetic test results showing that Appellant

was not the biological father, the parties stipulated that Appellant “shall have no

parental rights or responsibilities regarding the minor child.” The stipulation can

easily be interpreted as flowing from the discovery that Appellant was not T.C.F.’s

biological father and reinforcing the well-settled principle that Appellant had no

legal duty to support the child, “who is neither his natural nor his adopted child and

for whose care and support he has not contracted.” Daniel, 695 So. 2d at 1254

(quoting Albert v. Albert, 415 So. 2d 818, 820 (Fla. 2d DCA 1982)).

      This non-paternity determination had no effect on T.C.F.’s status as a

legitimate child, born during the parties’ valid marriage. As held by the Florida

Supreme Court in Daniel, “paternity and legitimacy are related, but nevertheless

separate and distinct concepts,” and a child’s legitimacy “will not be affected by a

                                          5
determination of paternity or any orders of support that may follow such a

determination.” 695 So. 2d at 1254-55. Because T.C.F.’s legitimacy was not

contested in the dissolution proceeding, Appellant remained T.C.F.’s “legal

father,” and T.C.F. remained legitimate. Id. at 1255. However, while it may have

been an error under Florida law for the Georgia court to conclude that Appellant

was no longer the child’s legal father, its judgment is entitled to full faith and

credit, because the Georgia Court of Appeals found that the trial court did not

exceed its subject-matter jurisdiction under Georgia law by legitimating T.C.F.

Atwell v. Atwell, 730 So. 2d 858, 860 (Fla. 1st DCA 1999). When Appellant

attempted to intervene in the Georgia lawsuit, he also moved to dismiss for lack of

subject-matter jurisdiction.    While Appellant’s jurisdictional argument was

ultimately unsuccessful, it was raised and litigated in the Georgia proceeding;

therefore, res judicata precludes Appellant from using the same grounds to

collaterally attack the Georgia judgment in a Florida court. Id.; Kelley v. Kelley,

147 So. 3d 597, 602 (Fla. 4th DCA 2014) (holding that “collateral attacks wilt

against judgments involving parties who have had their day in court”).

      This court is sensitive to the effect the Georgia court’s final decision has had

on Appellant, and acknowledges that, while Appellant entered into the stipulation

voluntarily and while represented by counsel, he may not have foreseen the

possibility of T.C.F. becoming Pearce’s legitimate child. However, this court

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cannot conclude that the magistrate’s recommended report was clearly erroneous,

or that the trial court abused its discretion in adopting it.

      AFFIRMED.

B.L. THOMAS, WINOKUR, and JAY, JJ., CONCUR.




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