DEPARTMENT OF REVENUE, O/B/O ERIN MEEKER, PETITIONER,
v.
ROBERT SILVA, RESPONDENT

Fla. 5th DCA | 2017-03-24
No. Case No. 5D16-2470
BERGER, J., and JACOBUS, B.W., Senior Judge, concur.
214 So. 3d 766 Florida District Court of Appeal, Fifth District (2017) Positive Treatment
Cited by 4 cases

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Synopsis

The Florida Department of Revenue sought certiorari review to quash a trial court order requiring paternity testing in a proceeding to register and enforce a Texas child support order. The court held that paternity testing was improper because paternity had already been conclusively established in Texas, the applicable statute for paternity testing applies only to proceedings to establish paternity (not enforce existing orders), and the defendant had not filed the required petition to disestablish paternity.


Holding

The court held that the trial court order violated the essential requirements of law because: (1) Section 88.3151, Florida Statutes prohibits a party whose parentage has been previously determined from pleading nonparentage in enforcement proceedings; (2) Section 742.12 applies only to proceedings to establish paternity, not enforce existing orders; and (3) if construed as a discovery order, it was improvidently entered because no finding of good cause was made and paternity was not in controversy.


Headnotes

[1] An order requiring a child to submit to paternity testing causes irreparable harm that cannot be cured on plenary appeal.

[2] A party whose parentage of a child has been previously determined by law may not plead nonparentage as a defense in a proceeding to register and enforce an out-of-state c…

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Key Quotes

“a party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this act”

Establishes the statutory bar to raising nonparentage in enforcement proceedings under the Uniform Interstate Family Support Act

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Facts & Procedural History

Erin Meeker gave birth to V.S. in Texas on August 16, 2006. Robert Silva executed an affidavit acknowledging paternity the next day. A Texas court fou…

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Opinion of the Court
LAMBERT, J.

LAMBERT, J.

The Florida Department of Revenue (“DOR”) seeks certiorari review of an order directing the parties and minor child to submit to scientific paternity testing in a proceeding brought by DOR to register and enforce a child support obligation previously ordered by a court in the State of *768Texas. Concluding that the order departs from the essential requirements of law and will cause irreparable harm that cannot be cured on plenary appeal, we grant the petition and quash the order.

On August 16, 2006, Erin Meeker (“Meeker”) gave birth to the minor child, V.S., in Texas. The following day, the Respondent, Robert Silva (“Silva”), who was not married to Meeker, executed an affidavit acknowledging the paternity of V.S. On August 19, 2008, an order was issued by the Texas court finding Silva to be the father of V.S. and establishing Silva’s child support obligation for his child. Thereafter, on October 7, 2009, Silva’s child support obligation to V.S. was modified by the Texas court, which entered an “Agreed Order in Suit for Modification of Support Order and to Confirm [Silva’s] Support Arrearage.”1

Meeker subsequently moved with the minor child to Maine, where she and the child continue to reside. Silva now resides in Florida. In July 2013, DOR registered the October 7, 2009 Texas order (modifying child support) in Florida pursuant to the Florida Uniform Interstate Family Support Act.2 In response, Silva filed a motion pursuant to section 742.12, Florida Statutes (2014), requesting scientific paternity testing, asserting that he believed he may not be the biological father of V.S. based upon his “investigation of [Meeker’s] behavior during the time of conception of the minor child.” Following a hearing at which no testimony was taken, the trial court entered the unelaborated order now under review, granting Silva’s motion.

To be entitled to certiorari relief, DOR must establish that the circuit court order departs from the essential requirements of law and that the order will cause irreparable harm that cannot be cured on plenary appeal. State, Dep’t of Rev. ex rel. Carnley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011) (citations omitted). Here, the irreparable harm requirement allowing this court to exercise jurisdiction has been met because any error in an order requiring a child to submit to paternity testing cannot be corrected on plenary appeal once the genetic testing is completed. See State, Dep’t of Rev. ex rel. Striggles v. Standifer, 990 So.2d 659, 661 (Fla. 1st DCA 2008) (“[S]ubjecting the mother and child to a potentially intrusive paternity test threatened irreparable harm that could not be remedied on plenary appeal.” (additional citations omitted) (citing State Dep’t of Rev. ex rel. Sharif v. Brown, 980 So.2d 590 (Fla. 1st DCA 2008))); see also Dep’t of Rev. ex rel. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007) (“Because this error cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed, the error must be corrected through certiorari proceedings.” (citing State v. Bjorkland, 924 So.2d 971, 975 (Fla. 2d DCA 2006))).

Having certiorari jurisdiction to review the order, we next address whether the order departs from the essential requirements of law. For purposes of cer-tiorari relief, an order departs from the essential requirements of law when it violates clearly established principles of law which can come from “controlling case law, rales of court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). For the following reasons, we conclude that the instant order violates these principles.

*769First, the proceeding before the circuit court was to register and enforce a child support order entered in another state after paternity had been conclusively established. Section 88.3151, Florida Statutes (2015), provides that “[a] party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this act.” Second, Silva filed his motion for scientific paternity testing pursuant to section 742.12, which, by its own terms, is not applicable to the present proceeding as this statute pertains to “any proceeding to establish paternity.” § 742.12(1), Fla. Stat. (2014) (emphasis added). Paternity regarding this minor child was established long ago. Third, although there are circumstances under which a male may seek to disestablish paternity or terminate a child support obligation when he is not the biological father of the child, to do so requires the filing of a petition and affidavit with specific pleading requirements. See § 742.18(1), Fla. Stat. (2014). However, Silva has not filed such a petition. Additionally, Silva acknowledged in his response to DOR’s certiorari petition that he is not requesting that the Florida court disestablish paternity if the testing shows that he is not the biological father of V.S. and “understands that ... he would have to go to the court that has jurisdiction to go forward with his action to disestablish paternity.”

Simply put, there was no basis for the circuit court to order paternity testing because no paternity action was pending before it. Under these circumstances, the court order compelling scientific paternity testing was akin to a discovery order. However, “no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy" and (2) ‘good cause’ exists for the testing.” Fla. Dep’t of Rev. ex rel. Corbitt v. Alletag, 156 So.3d 1110, 1112 (Fla. 1st DCA 2015) (quoting Lynch, 53 So.3d at 1156-57). Here, the trial court made no finding of “good cause” in the challenged order nor was there any testimony or evidence presented that could have supported such a finding. Thus, if construed as a discovery order, it was improvidently entered.

Accordingly, we grant DOR’s petition for a writ of certiorari and quash the trial court’s order that directed the parties and the minor child to make themselves available for scientific paternity testing.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED.

BERGER, J., and JACOBUS, B.W., Senior Judge, concur.


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Citator

Cited By

  • …ered in error, an order that compels paternity testing causes irreparable harm because it cannot be corrected once the testing occurs. Dep’t of Child. & Fams. v. D.A., 279 So. 3d 1268, 1269 (Fla. 5th DCA 2019); Dep’t of Rev. ex rel. Meeker v. Silva, 214 So. 3d 766, 768 (Fla. 5th DCA 2017). This irreparable harm activates our certiorari jurisdiction, which allows us to consider if the order departs from the essential requirements of law. See N. Brevard Cnty. Hosp. Dist. v. Deligdish, 398 So. 3d 1126, 1130 (Fla…
  • State v. Trochez (Fla. 3d DCA 2022)

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