JOHN BAUGH BELL, APPELLANT,
v.
VIVIEN JOY TUFFNELL, APPELLEE
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A Tennessee resident appealed the trial court's denial of his motion to dismiss a paternity action brought by a Florida resident, challenging the court's jurisdiction under Florida's Long Arm Statute. The court affirmed, holding that the Long Arm Statute's "tortious act" provision applies to paternity cases where the defendant failed to support an alleged child, thereby subjecting the nonresident defendant to Florida jurisdiction.
The court held that Section 48.193(1)(b) of Florida's Long Arm Statute applies to paternity actions and brings a nonresident defendant within the trial court's jurisdiction. The alleged failure to fulfill the duty of support constitutes a tortious act within the meaning of the statute, making the defendant subject to Florida jurisdiction.
[1] A state's long-arm statute may confer jurisdiction over a nonresident defendant in a paternity action if the defendant committed a tortious act within the state.
[2] The failure of a putative father to fulfill the duty of support can constitute a tortious act for purposes of a long-arm statute.
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The relevant language of Florida's Long Arm Statute that the court applied to establish jurisdiction over the nonresident defendant in the paternity action.
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Join FLexlaw to unlock all legal intelligenceAppellee, a Florida resident with a child, brought a paternity action against appellant, a Tennessee resident who was never a Florida resident. The co…
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McCORD, Judge.
Appellant, a resident of Tennessee, appeals the trial court’s denial of his motion to dismiss, contending that the trial court does not have jurisdiction over him in this paternity action pursuant to the Florida Long Arm Statute. We affirm.
Appellee brought this paternity action seeking support for her child and alleging that appellant is the father of the child. Appellee and the child are residents of Florida. Appellant has never been a Florida resident, but the complaint alleges that the act of siring the child occurred in Florida.
The applicable portion of the Florida Long Arm Statute, Section 48.193(1)(b), provides as follows:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any causé of action arising from the doing of any of the following:
* * * * * *
(b) commits a tortious act within this state.
Appellant contends that to find that section applicable to him, the court must rule that the act of sexual intercourse between consenting adults is a commission of a tortious act. Appellant points out that some states have declined to extend similar Long Arm statutes to reach nonresident defendants in paternity suits, holding that sexual intercourse between consenting adults is not a tortious act. State ex rel. Larimore v. Snyder, 206 Neb. 64, 291 N.W. 2d 241 (1980); A. R. B. v. G. L. P., 180 Colo. 439, 507 P. 2d 468 (1973). In those cases, the courts declared that the duty to support an alleged child is only an ancillary issue in a paternity action. To the contrary, however, other jurisdictions have held that in a paternity case, the alleged failure by a putative father to fulfill the duty of support is alone sufficient to constitute a tortious act within the meaning of their Long Arm statutes, which are similar to the one in question. See Poindexter v. Willis, 87 Ill.App.2d 213, 231 N.E. 2d 1 (1967); Gentry v. Davis, 512 S.W. 2d 4 (Tenn.1974); Nelson v. Nelson, 298 Minn. 438, 216 N.W. 2d 140 (1974). We agree with the latter decisions and find that Section 48.193(1)(b), Florida Statutes, brings appellant within the jurisdiction of the trial court in this action.
Appellant argues that liability for support is not the primary issue in a paternity suit but is merely the second step in a paternity determination. However, in Estanislao v. State, Dept. of HRS, 368 So. 2d 677 (Fla. 1st DCA 1979), this Court rejected the similar contention of that appellant. We ruled that the suit was one to establish both paternity and support and is an “independent action for support of dependents” within the meaning of Section 48.193(1)(e), Fldrida Statutes.
AFFIRMED.
ERVIN and JOANOS, JJ., concur.
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Dep't OF Health & Rehabilitative Servs. v. Wright, 522 So. 2d 838 (Fla. 1988)…d support action against an out of state putative father on the ground that the court lacked personal jurisdiction over the putative father. Because that holding directly and expressly conflicts with the first district’s holding in Bell v. Tuffnell, 418 So. 2d 422 (Fla. 1st DCA 1982), rev. denied, 427 So. 2d 736 (Fla.1983), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the decision of the second district below and, to the extent that it conflicts with this opinion, we disapprove of the first…
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State v. Wright, 489 So. 2d 1148 (Fla. 2d DCA 1986)…ly an ancillary issue in a paternity proceeding and that the first issue to be determined is whether the named defendant is the father of the child. In doing so, we disagree with the holding of the First District Court of Appeal in Bell v. Tuffnell, 418 So. 2d 422 (1st DCA 1982), petition for review denied, 427 So. 2d 736 (Fla.1983).2 A court cannot, as an initial [*1151] matter, assume that a defendant is the father of a child so that it can adjudicate the matter of nonsupport, and upon finding nonsupport, u…
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Gioia v. Gioia, 435 So. 2d 367 (Fla. 4th DCA 1983)…rcise of personal jurisdiction over the father. The father’s unsuccessful prosecution of a child custody suit in Florida in 1967 does not constitute sufficient additional contact to satisfy Kulko’s due process requirements. But see Bell v. Tuffnell, 418 So. 2d 422 (Fla. 1st DCA 1982), which holds that the failure of an unwed father of a child residing in Florida to pay support constitutes a tortious act for purposes of invoking jurisdiction over the father. In Bell it was alleged that the child was conceived…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Isidor Estanislao, Jr. v. State, 368 So. 2d 677 (Fla. 1st DCA 1979)