Opinion
No. 80-87.
July 29, 1981.
Interlocutory appeal treated as a petition for writ of certiorari to Circuit Court, Palm Beach County; Vaughn J. Rudnick, Judge.
Hubert R. Lindsey, West Palm Beach, for appellant.
Thomas A. Bratten, West Palm Beach, for appellee.
The former husband has filed an interlocutory appeal from an order of the trial court, striking his answer on the ground of legal insufficiency.
The order was not appealable under Florida Rule of Appellate Procedure 9.130. Accordingly, we consider this as a petition for writ of certiorari and deny same on the authority of Ford Motor Co. v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978).
PETITION FOR WRIT OF CERTIORARI DENIED.
HERSEY and GLICKSTEIN, JJ., concur.
BERANEK, J., concurs specially, with opinion.
I conclude that the trial court did not depart from the essential requirements of law in striking the answer of the former husband which sought to question the legitimacy of the minor child involved in this domestic matter. The answer raising the issue of legitimacy was properly stricken because these same parties had engaged in almost twenty years of sporadic litigation on the issue of child support for the four children in question. From the period of time subsequent to entry of the final judgment up to the present time, at least three petitions for modification of child support have been filed by the husband and at no time did he raise the legitimacy of any of the children. Over the years, at least seven orders relating to child support were issued by the trial court subsequent to entry of the final judgment. Several of these orders specifically noted that there were four minor children involved. In all seven orders, the husband has been compelled to pay child support for the minor child in question and the husband's successive petitions for modification regarding child support have all been denied. I conclude the husband has waived the right to contest the legitimacy of the child by his participation in this litigation over the years.