Summary
granting certiorari petition and quashing an order compelling genetic testing of nonparty where trial court had subject matter jurisdiction over only a child support petition and thus lacked subject matter jurisdiction over the paternity issue
Summary of this case from T. Hawley Ins. Co. v. RussoOpinion
Case No. 2D20-271
02-12-2021
DEPARTMENT OF REVENUE O/B/O T.H.W., Petitioner, v. D.E.B., Respondent.
Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Petitioner. No appearance for Respondent.
Ashley Moody, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Petitioner.
No appearance for Respondent.
LaROSE, Judge.
The Florida Department of Revenue (DOR) petitions for issuance of a writ of certiorari to quash the trial court's "Order Compelling Genetic Testing" of a nonparty in a child support action. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(A). We grant the writ and quash the order.
Background
DOR filed a "Petition for Support and Other Relief" on behalf of the mother (T.H.W.), seeking child support from D.E.B., who is listed as the biological father on the minor child's birth certificate. D.E.B., pro se, filed an answer. He acknowledged that he had signed the child's birth certificate "because [he] was told [the child] was [his]"; however, he had "since learned that [the child] lives with the biological father and mother and using me for financial benefits." In addition to denying paternity, D.E.B. "request[ed] a DNA test."
DOR serves as Florida's child support enforcement agency pursuant to Title IV–D of the Social Security Act.
A child support hearing officer referred the petition to the trial court "as a contested paternity matter." See Fla. Fam. L. R. P. 12.491(e) ("A support enforcement hearing officer does not have the authority to hear contested paternity cases."). The trial court conducted a hearing. D.E.B. appeared at the hearing, along with T.H.W., and an attorney from the Florida Attorney General's Office.
T.H.W. acknowledged that D.E.B. is not the child's father. She admitted that D.L.B. is the biological father. As best as we can tell from our limited record, this was the first time in this proceeding that D.L.B. was identified as the biological father. T.H.W. told the trial court that "[D.L.B.] knows he's the father."
After the hearing, the trial court entered its "Order Compelling Genetic Testing." The order required T.H.W., the child, and D.E.B. to complete DNA testing. Further, the order acknowledged that "[a]lthough he is not a party to this action, it is also appropriate to allow the alleged biological father, D.L.B., an opportunity to participate in genetic testing." Thus, the trial court also ordered D.L.B. to submit to DNA testing, with the provision that DOR pay the initial costs of the genetic testing; if the test revealed that D.L.B. is the child's biological father, the "total cost of the genetic testing may be assessed ... against [D.L.B.]." The order allowed that, because "he is not a party to this action, [D.L.B.] may challenge this Order compelling genetic testing."
This payment scheme is seemingly inconsistent with the one set forth in the disestablishment of paternity statute. See § 742.18(7)(c), Fla. Stat. (2019) ("The party requesting applicable scientific testing shall pay any fees charged for the tests. If the custodian of the child is receiving services from an administrative agency in its role as an agency providing enforcement of child support orders, that agency shall pay the cost of the testing if it requests the test and may seek reimbursement for the fees from the person against whom the court assesses the costs of the action."). Neither D.L.B. (who was not served a copy of or named as a party in the petition) nor DOR requested the genetic test.
DOR seeks to quash the trial court's order. DOR contends that the order requires DOR "to pay for and have genetic testing done on a [nonparty] to the case" over whom the trial court "lacked personal jurisdiction."
Standard of Review
To grant this petition for writ of certiorari, we must determine whether the trial court, by issuing the order requiring genetic testing, "departed from the essential requirements of the law." Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) ; Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So. 2d 578, 581 (Fla. 2d DCA 2003). To warrant relief, the departure must be so serious and "so erroneous that justice requires that it be corrected." Haines City, 658 So. 2d at 531 (quoting Combs v. State, 436 So. 2d 93, 95 (Fla. 1983) ). A violation of "clearly established law" can come from "controlling case law, rules of court, statutes, and constitutional law." Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).
Dep't of Revenue ex rel. T.E.P. v. Price, 958 So. 2d 1045, 1046 (Fla. 2d DCA 2007). "Certiorari is an original proceeding designed to provide extraordinary relief. It is not intended to provide review when an error can be repaired on appeal." State v. Bjorkland, 924 So. 2d 971, 975 (Fla. 2d DCA 2006). Thus, "[t]o be entitled to certiorari relief, the petitioner must demonstrate [(1)] that the order under review departs from the essential requirements of the law and [(2)] that the order will cause irreparable harm that cannot be remedied via plenary appeal." Dep't of Revenue ex rel. Carnley v. Lynch, 53 So. 3d 1154, 1156 (Fla. 1st DCA 2011) (citing Dep't of Revenue ex rel. Chambers v. Travis, 971 So. 2d 157, 158-59 (Fla. 1st DCA 2007) ).
Analysis
I. Trial court lacked personal jurisdiction over D.L.B.
The only matter before the trial court was DOR's child support petition against D.E.B. D.L.B. was not a party to the action. Cf. Travis, 971 So. 2d at 162 ("[N]o 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." (emphasis added) (citing Dep't of Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 857-58 (Fla. 4th DCA 1995) )). As DOR points out, "[t]here are no allegations pending as to [D.L.B.] so that, even if he were served ... he would [not] be on notice that he was a party to the actions." The trial court lacked personal jurisdiction over D.L.B. Therefore, the genetic testing order, as to D.L.B., is void. See Wiggins v. Tigrent, Inc., 147 So. 3d 76, 81 (Fla. 2d DCA 2014) ("A judgment that is entered against a defendant over whom the court lacks personal jurisdiction is a void judgment." (citing Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So. 2d 658, 665 (Fla. 2d DCA 2007) )). After all, D.L.B. "possesses his own legal rights related to the ordered [genetic] testing, including notice." State v. Ceasar, 188 So. 3d 989, 991 n.2 (Fla. 1st DCA 2016) ; see, e.g., Price, 958 So. 2d at 1046 ("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.").
D.L.B. took no part in this certiorari proceeding. DOR's petition states that the only actions "[p]ending before the circuit court were [DOR]'s petition for support against [D.E.B.], and [D.E.B.]'s petition to disestablish his paternity of the minor child." We do not address whether D.E.B.'s answer qualified as a sufficient action to disestablish paternity. See § 742.18(1), Fla. Stat. (2018) (setting forth the pleading requirements for a petition to disestablish paternity or terminate a child support obligation).
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We do not suggest that DOR can assert the privacy rights of D.L.B. That is not part of our calculus. Rather, we look to the harm visited upon DOR by the order. The trial court ordered genetic testing of a nonparty. DOR would have to assist, financially and otherwise, in arranging for and conducting a genetic test on someone who is not before the court. To be clear, we do not issue the writ because D.L.B.'s rights have necessarily been violated. We issue the writ because DOR will be irreparably harmed by being required to carry out the terms of a void order as it relates to D.L.B. Cf. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003) ("[C]ertiorari should not be used to grant a second appeal, but instead is limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law.").
II. Trial court lacked subject matter jurisdiction to order genetic testing of D.L.B.
Although a trial court possesses subject matter jurisdiction to order genetic testing, such jurisdiction was not properly invoked here. See, e.g., Dep't of Child. & Fams. v. D.A., 279 So. 3d 1268, 1269 (Fla. 5th DCA 2019) ("[T]he order [compelling genetic testing] departs from the essential requirements of law because no party has put the issue of paternity into controversy and there was no evidence or testimony to support the trial court's oral findings of good cause."); Ceasar, 188 So. 3d at 991 (granting certiorari petition and quashing the order directing Mr. Ceasar and a nonparty adult child to submit to genetic testing, because, aside from Mr. Ceasar's failure to plead "a basis to disestablish paternity under either § 742.10(4) or § 742.18 [,] ... there were no pending paternity proceedings at the time the order was entered below" (emphasis added)); Fla. Dep't of Revenue ex rel. Torres v. Spraggs, 213 So. 3d 959, 961 (Fla. 1st DCA 2015) ("In the case before us, it is clear that the father did not plead any basis to contest or disestablish paternity under subsection 742.10(4) or under section 742.18. Simply put, there was no paternity action pending before the court upon which a paternity test could be ordered. The only issue before the court was the Department's petition to modify the father's child support obligation." (emphasis added)).
Similarly, here, the only issue before the court was DOR's child support petition and, maybe, D.E.B.'s request to disestablish his paternity. See Spraggs, 213 So. 3d at 961. Consequently, the trial court lacked subject matter jurisdiction to order genetic testing of D.L.B. None of the prescribed procedures were followed such that the trial court possessed the necessary authority to issue the order as to D.L.B.:
Under section 742.10(1), Florida Statutes (2006), out-of-wedlock paternity can be established through a number of methods, including a voluntarily signed and notarized acknowledgment by the father. The father then has sixty days to challenge the paternity. Upon expiration of the sixty-day period, the paternity may be challenged only for fraud, duress, or material mistake of fact. § 742.10(4). To disestablish paternity, a contesting father must file a petition with the court and follow the requirements enunciated in section 742.18(1). The court may not set aside paternity if the "father" signed a paternity acknowledgment form unless the court determines that all factors listed in section 742.18(2) existed.
Price, 958 So. 2d at 1046 (emphasis omitted); see Ceasar, 188 So. 3d at 991 ; see also A.D.A. v. D.M.F., 204 So. 3d 523, 527 (Fla. 4th DCA 2016) ("A voluntary acknowledgement [of paternity] constitutes an establishment of paternity that can only be challenged in court 'on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.' " (quoting § 742.10(4), Fla. Stat. (2010) )).
In relevant part, section 742.12 entitled "Scientific testing to determine paternity," provides:
(1) In any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
(2) In any proceeding to establish paternity, the court may, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to
show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
There was no action to establish paternity, as to either D.E.B. or D.L.B., before the trial court. Consequently, the trial court's subject matter jurisdiction to order D.L.B. to submit to genetic testing was not properly invoked. See Price, 958 So. 2d at 1047 (Villanti, J., concurring specially with opinion) ("[S]ection 742.12 only authorizes the trial court to order DNA testing '[i]n any proceeding to establish paternity.' Because paternity had previously been established and Mr. Price did not properly bring a proceeding to challenge that establishment of paternity, the law suit below did not involve an action to establish paternity. Under these facts, the trial court did not have authority to order DNA testing.").
Although section 742.18 permits the trial court to order genetic testing in a disestablishment action, it does not allow for genetic testing of nonparties. And for good reason. Such testing is not necessary to disestablish D.E.B.'s paternity, nor is such testing relevant as the trial court could not establish D.L.B.'s paternity in the absence of an action to establish his paternity under section 742.10. And, D.L.B.'s paternity (or lack thereof) strikes us as irrelevant to D.E.B.'s support obligation. Cf. § 742.18(1)(c) (requiring that a petition to disestablish paternity include "[a]n affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom [disestablishment of paternity] is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due"). D.E.B. is the father or he is not. Therefore, until D.E.B.'s paternity is disestablished and there is a pending action to establish D.L.B.'s paternity, the trial court cannot order D.L.B. to undergo genetic testing at DOR's expense and with its assistance.
III. Irreparable harm that cannot be corrected on postjudgment appeal
We can conceive of several harms wrought by the genetic testing order against DOR. Most significantly, the order requires DOR to expend its finite resources to carry out the genetic testing of a nonparty. And, notwithstanding the trial court's efforts to allow for DOR's reimbursement, the trial court "departed from the essential requirements of law when it ordered [DOR] to pay for the paternity testing." D.A., 279 So. 3d at 1269 ("[A]n order of a trial court compelling a governmental department or agency to pay for a service or to incur another expense to the benefit of a private party interferes with both legislative discretion in determining the funds required of an agency and executive discretion in spending those appropriated funds, in derogation of the doctrine of separation of powers." (alteration in original) (quoting Dep't of Child. & Fams. v. K.R., 946 So. 2d 106, 107 (Fla. 5th DCA 2007) )). After all, D.L.B. was not a party and DOR did not request DNA testing.
Conclusion
The trial court lacked personal and subject matter jurisdiction as to D.L.B. Allowing the order to stand pending plenary appeal would result in irreparable harm to DOR. Therefore, we grant the petition for writ of certiorari and quash the trial court's genetic testing order as to D.L.B.
Petition granted.
CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.