Lupton v. Department of Health & Rehabilitative Services

MOORE, Judge. Defendant appeals a final judgment in a paternity action which, inter alia, determined him to be the father of a child born to Sharon Smith. He contends that the evidence was insufficient to support a finding of paternity. We reverse. The Department of Health and Rehabilitative Services brought this action as as-signee and subrogee of the rights of Sharon Smith. During trial, Ms. Smith admitted having intercourse with another man, in addition to the appellant, during the medically recognized period when conception could have occurred. No evidence was adduced by the Department which eliminated the other man as the father, nor which pinpointed appellant as the father. Rather, the court was left to speculate which of the two men was the father of the child, which it may not do. Yarmark v. Strickland, 193 So.2d 212 (Fla. 3rd DCA 1966), cert. denied 201 So.2d 559 (Fla.1967). Compare Roe v. Macy, 363 So.2d 616 (Fla. 1st DCA 1978). [693] Accordingly, the final judgment is reversed. DOWNEY, C. J., and LETTS, J., concur.