Department of Revenue Ex Rel. Meeker v. Silva , 2017 Fla. App. LEXIS 3897 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DEPARTMENT OF REVENUE,
O/B/O ERIN MEEKER,
Petitioner,
v. Case No. 5D16-2470
ROBERT SILVA,
Respondent.
________________________________/
Opinion filed March 24, 2017
Petition for Certiorari Review of Order
from the Circuit Court
for Hernando County,
Donald E. Scaglione, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Carrie R. McNair,
Assistant Attorney General, Tallahassee,
for Petitioner.
Richard L. Trionfo, of Richard L. Trionfo,
P.A., Brandon, for Respondent.
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 Texas. 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.
1The modification order reflects that Silva personally appeared before the court
and agreed to the entry of this order.
2 Chapter 88, Florida Statutes (2013).
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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 certiorari 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, rules 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.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DEPARTMENT OF REVENUE,
O/B/O ERIN MEEKER,
Petitioner,
v. Case No. 5D16-2470
ROBERT SILVA,
Respondent.
________________________________/
Opinion filed March 24, 2017
Petition for Certiorari Review of Order
from the Circuit Court
for Hernando County,
Donald E. Scaglione, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Carrie R. McNair,
Assistant Attorney General, Tallahassee,
for Petitioner.
Richard L. Trionfo, of Richard L. Trionfo,
P.A., Brandon, for Respondent.
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
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 CERTIORARI GRANTED; ORDER QUASHED.
BERGER, J., and JACOBUS, B.W., Senior Judge, concur.
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