JACOB MASON A/K/A JACKIE MASON, APPELLANT,
v.
GINGER JEAN REITER, APPELLEE; GINGER JEAN REITER, PETITIONER, V. JACOB MASON A/K/A JACKIE MASON, RESPONDENT
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In a consolidated appeal from a paternity proceeding, the Third District Court of Appeal affirmed the trial court's determination that Jacob Mason was the father of the child Sheeba and upheld the temporary child support award, but reversed a criminal contempt conviction against the mother for inadequate notice of the hearing.
The paternity determination was supported by clear and convincing evidence; denying the deposition request was an appropriate sanction for Mason's refusal to cooperate with discovery; the HLA summary was properly admitted under the parties' stipulation; temporary child support could be awarded following paternity adjudication where the child's need and father's ability to pay were established; but the contempt notice violated due process by failing to adequately inform the mother of the court order allegedly violated and whether the contempt was civil or criminal.
[1] A trial court may deny a party's request to testify by deposition as a sanction for that party's refusal to respond to discovery requests.
[2] Clear and convincing evidence of paternity may include HLA test results, proof of an ongoing sexual relationship during the period of conception, the court's observation…
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Join FLexlaw to unlock all legal intelligence“The HLA test results, which showed a 99.94% probability that the appellant was the baby's father, along with the proof that the parties had an ongoing sexual relationship during the period of conception, the court's observation of a striking resemblance between the father and two and one-half year old child, and the appellant's admission to a disinterested person that he was the child's father, constituted clear and convincing proof of paternity.”
Establishes the court's basis for finding paternity supported by clear and convincing evidence
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Join FLexlaw to unlock all legal intelligenceMason and Reiter had an ongoing sexual relationship during the period of conception. HLA test results showed a 99.94% probability that Mason was the f…
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PER CURIAM.
Several of the issues raised in these consolidated appeals from a paternity proceeding include: (1) the determination that the appellant is the father of the baby, Sheeba, is not supported by clear and convincing evidence; (2) the denial of the appellant’s request to testify by deposition was an abuse of discretion; (3) the use of a Human Leucocyte Antigen (HLA) test summary to support the paternity finding violated section 90.956, Florida Statutes (1987); (4) the award of temporary child support is not provided for by the paternity statutes; and (5) a criminal contempt adjudication against the mother for disobeying a gag order violated due process requirements for adequate notice and a fair opportunity to be heard.
There was no error in denying the appellant/father’s request to testify by deposition. It was made clear by the appellant early in the proceeding that he would exercise his right of privacy by not giving testimony in the case. Further, he refused to respond to requests for discovery. Denial of the request to testify by deposition was an appropriate sanction. See Southern Bell Tel. & Tel. Co. v. Kaminester, 400 So. 2d 804 (Fla. 3d DCA 1981).
The HLA test results, which showed a 99.94% probability that the appellant was the baby’s father, along with the proof that the parties had an ongoing sexual relationship during the period of conception, the court’s observation of a striking resemblance between the father and two and one-half year old child, and the appellant’s admission to a disinterested person that he was the child’s father, constituted clear and convincing proof of paternity. See Hill v. Jackson, 497 So. 2d 688 (Fla. 1st DCA 1986).
By an order dated September 27, 1987, the court approved a stipulation of the parties that the HLA summary could be admitted as evidence without production of the detailed laboratory data. That there was no ambiguity in the stipulation is evidenced by the fact that the expert named to testify to the test results was deposed on the same summary in preparation for trial with no reference to the test details. On this point the claimed error is baseless.
Nothing in chapter 742, Florida Statutes, the paternity statutes, prevents a trial judge from making a temporary award of child support after a paternity adjudication, but before a hearing on the support issue, where the two issues are bifurcated for trial. See Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984) (reversing award of temporary fees in paternity action where mother failed to establish the need for the fees and the father’s ability to pay). Here the child’s need for support was adequately demonstrated and the father stipulated to his ability to pay.
We have examined the notice provided the mother on the hearing for contempt and agree that it fails to adequately inform as to what order of the court was violated and whether the contempt was civil or criminal in nature. A notice of hearing on a motion for indirect contempt must apprise an accused adequately so as to not frustrate the preparation of a defense. In this case the appellant/mother was sentenced in violation of the due process requirements of rule 3.840, Florida Rules of Criminal Procedure. See Pugliese v. Pugliese, 347 So. 2d 422 (Fla.1977).
The judgments and orders entered on paternity and temporary support are affirmed; the order of contempt entered in case no. 88-1220 is reversed and that cause remanded for a new proceeding.
Cases With Similar Vibessemantic neighbors from the corpus
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Mason v. Reiter, 564 So. 2d 142 (Fla. 3d DCA 1990)…Mason [“the child”], on May 10, 1988 nunc pro tunc to April 26, 1988. At the same time, the trial court reserved jurisdiction to hear remaining matters of support, medical expenses, temporary and final attorney’s fees and costs. See Mason v. Reiter, 531 So. 2d 348 (Fla. 3d DCA 1988), review denied, 542 So. 2d 989 (Fla.1989). After the hearing held on August 18 and 19, 1988, the court entered a final judgment on child support, hospital and medical expenses, attorney’s fees and costs. This judgment ordered Jack…
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De Mauro v. State, 632 So. 2d 727 (Fla. 3d DCA 1994)…; accord In re Luskin, 552 So. 2d 942, 943 (Fla. 4th DCA 1989); see also Fla.R.Crim.P. 3.840; State ex rel. Coody v. Muszynski, 404 So. 2d 165, 167 (Fla. 5th DCA 1981); Deter v. Deter, 353 So. 2d 614, 617-18 (Fla. 4th DCA 1977); cf. Mason v. Reiter, 531 So. 2d 348, 349 (Fla. 3d DCA 1988) (“A notice of hearing on a motion for indirect [criminal] contempt must apprise an accused adequately so as to not frustrate the preparation of a defense.”), review denied, 542 So. 2d 989 (Fla.1989). The Florida Supreme Cour…
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Reiter v. Mason, 563 So. 2d 749 (Fla. 3d DCA 1990)…tay of the injunction pending appeal. We conclude that the motion should have been granted and reverse the trial court order. Reiter filed an action for determination of paternity and child support against appellee Jacob Mason. See Mason v. Reiter, 531 So. 2d 348 (Fla. 3d DCA 1988), review denied, 542 So. 2d 989 (Fla.1989). On January 11, 1988 the trial court entered a temporary injunction which ordered, in part, that Reiter shall not “in any way defame or disparage Respondent’s [Mason’s] character or reputa…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rocco Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977)
- S. Bell Tel. & Tel. Co. v. Lewis H. Kaminester, M. D., P. A., 400 So. 2d 804 (Fla. 3d DCA 1981)
- Hornsby v. Newman, 444 So. 2d 90 (Fla. 4th DCA 1984)
- Hill v. Elconnie Jackson, 497 So. 2d 688 (Fla. 1st DCA 1986)