M.N., Jr. the Father v. Department of Children And Families and Guardian Ad Litem Program , 2015 Fla. App. LEXIS 5107 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.N., JR., the Father,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD
LITEM PROGRAM,
Appellees.
No. 4D14-2345
[April 8, 2015]
Appeal of a non-final order from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Lawrence Mirman, Judge; L.T. Case No.
10000019DPAXMX.
Chet E. Weinbaum, Fort Pierce, for appellant.
Karla Perkins, Miami, for appellee Department of Children & Families.
Laura E. Lawson, Sanford, for appellee Guardian Ad Litem Program.
PER CURIAM.
M.N., the Father, appeals the order dismissing his second motion to
set aside a final judgment of adoption. We affirm.
The Father’s biological child was born to a marriage between the
mother and the legal father. After the parental rights of the mother and
the legal father were terminated, a relative adopted the child. The Father
moved to set aside the adoption, claiming that notice required by statute
was not provided to the Father. The trial court denied the motion
without addressing the notice issue. Instead, the court found the Father
did not have standing to contest the adoption because he was not the
legal father.
After the Father’s appeal of the order was dismissed as untimely, the
Father filed his second motion to set aside the adoption, again relying on
the notice issue. The court accepted the state’s argument that the
motion was procedurally barred based on the doctrine of res judicata,
and the court denied the motion.
We find that the court erred in finding the second motion was
procedurally barred, as the court did not address the notice issue in its
first order. See State, Dep’t of Transp. v. Bailey, 603 So. 2d 1384, 1387
(Fla. 1st DCA 1992) (recognizing that the doctrine of res judicata is not
invoked if an issue was not “actually litigated and decided”). However,
without addressing the merits of the Father’s argument, we affirm.
Section 63.182(1), Florida Statutes (2013), a statute of repose,1
provides that “an action or proceeding of any kind to vacate, set aside, or
otherwise nullify a judgment of adoption . . . may not be filed more than
1 year after entry of the judgment terminating parental rights.” Because
the Father’s second motion was filed in December 2013, more than one
year after the termination order was entered, the statute bars his action
to set aside the adoption.
Affirmed.
STEVENSON, TAYLOR and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1“[S]tatutes of repose bar actions by setting a time limit within which an action
must be filed as measured from a specified act, after which time the cause of
action is extinguished . . . .” Merkle v. Robinson, 737 So. 2d 540, 542 n.6 (Fla.
1999).
2