STATE OF FLORIDA, DEPARTMENT OF REVENUE, ON BEHALF OF SHIRLEY EVONNE BAGGS, APPELLANTS,
v.
PAUL D. PATE, APPELLEE
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The Florida Department of Revenue appealed the dismissal of a paternity case against a putative father, challenging whether the legal father (whose name is on the birth certificate) is an indispensable party. The court held that the legal father is not necessarily indispensable but must be given notice of the hearing and allowed to appear if he wishes.
The legal father is not necessarily an indispensable party; however, he must be given notice of the paternity hearing and an opportunity to appear if he wishes. The trial court erred in dismissing the case without first determining whether the legal father received notice and whether he wished to appear.
[1] A legal father named on a child's birth certificate is not necessarily an indispensable party in a paternity proceeding against a putative father.
[2] A legal father must be given notice of a paternity hearing, either actual or constructive, if he wishes to appear.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court was required to hear arguments from all parties, including the legal father "if he wishes to appear."”
Establishes that legal father must have opportunity to appear, but appearance is conditional on his wishes
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Join FLexlaw to unlock all legal intelligenceShirley Baggs sought to establish paternity against Paul Pate, a putative father. The child's birth certificate listed a husband as the legal father. …
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WOLF, J.
The Department of Revenue on behalf of Shirley Baggs is appealing the trial court’s order dismissing a paternity case against appellee, the putative father of Ms. Baggs’-child. The issue in this case is whether a husband/legal father whose name is on the child’s birth certificate is an indispensable party in a proceeding brought against a putative father to determine paternity. We find that the trial court erred in dismissing this case for failure to join the legal father as^an indispensable party.
In Department of Health & Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla.1993), the supreme court held that the trial court was required to hear arguments from all parties, including the legal father “if he wishes to appear.” Id. at 308. In determining whether the father wishes to appear, the supreme court notes that the legal father must be given notice of the paternity hearing “either actually if he is available or constructively if otherwise.” Id. at 308, n. 4. Although the opinion specifically states that the child, as represented by the guardian ad litem, is an indispensable party, in the same sentence it notes that the legal father only must be given notice of the hearing. Id. at 308. Thus, it appears that the supreme court does not necessarily deem the legal father to be an indispensable party.1
On remand, the trial court must determine, in accordance with the supreme court’s' opinion in Privette, whether the legal father has been provided notice of the hearing and whether he wishes to appear. Under Privette, if the legal father wishes to appear, then he “must be heard.” Id. at 308, n. 4. Conversely, it appears that if the legal father does not wish to appear after notice, he need not be heard. In this case there was no determination by the trial court in regard to whether the legal father was given notice or whether he wished to appear. Therefore, we must reverse and remand for proceedings consistent with this opinion.
BOOTH and LEWIS, JJ., concur. . In Pitcairn v. Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991), where a mother brought a paternity suit to obtain child support from a man who was not her husband, this court found that the husband/legal father was not an indispensable party. In Privette, the supreme court disapproved our Pitcairn decision "to the extent it is inconsistent with our views here.” Id. at 310.
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Fla. Dep't OF Revenue v. James (Willie) Cummings, 930 So. 2d 604 (Fla. 2006)…BELL, J. We have for review Department of Revenue ex rel. Preston v. Cummings, 871 So. 2d 1055 (Fla. 2d DCA 2004), which expressly and directly conflicts with State Department of Revenue ex rel. Baggs v. Pate, 824 So. 2d 1038 (Fla. 1st DCA 2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue before us is whether a legal father (i.e., a man married to the child’s mother at the time of birth) is an indispensable party in a paternity action brought by t…1 / 2
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Dep't OF Revenue v. James (Willie) Cummings, 871 So. 2d 1055 (Fla. 2d DCA 2004)…tment should initiate child support proceedings against the legal fathers instead of the putative fathers in all of these cases. Our decision requires us to certify conflict with the First District’s decision in State, Department of Revenue v. Pate, 824 So. 2d 1038 (Fla. 1st DCA 2002) (holding legal father listed on child’s birth certificate was not indispensable party to paternity action brought by Department to establish child support). In each of these cases, the Department filed a standard form complaint…1 / 3
Authorities Cited
- Dep't OF Health & Rehabilitative Servs. v. Privette, 617 So. 2d 305 (Fla. 1993)
- Pitcairn v. Francine Vowell, 580 So. 2d 219 (Fla. 1st DCA 1991)