Third District Court of Appeal
State of Florida
Opinion filed August 3, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0795
Lower Tribunal No. 21-15390
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State of Florida, Department of Revenue, by and on behalf of
Sonia M. Murgas Zelaya,
Petitioner,
vs.
Hugo A. Trochez,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Marcia
del Rey, Judge.
Ashley Moody, Attorney General, and Toni C. Bernstein, Senior
Assistant Attorney General (Tallahassee), for petitioner.
No appearance for respondent.
Before HENDON, MILLER, and GORDO, JJ.
MILLER, J.
Petitioner, the Department of Revenue, by and on behalf of Sonia
Murgas Zelaya, the mother, seeks relief in certiorari from a non-final order
requiring the mother and her minor child submit to genetic testing. In these
proceedings, the Department contends that, because respondent, Hugo
Trochez, the presumed natural father, legally acknowledged paternity upon
the birth of the child and has not sought to disestablish paternity, certiorari
lies. Persuaded by the reasoning in State, Department of Revenue ex rel.
Sharif v. Brown,
980 So. 2d 590 (Fla. 1st DCA 2008) and its progeny, we
find that the challenged order constitutes a departure from the essential
requirements of law resulting in material injury irremediable on appeal. Thus,
we grant the petition.
BACKGROUND
The presumed father and the mother were involved in an intimate
relationship, but they never married. In 2016, the mother gave birth to the
child. Upon the birth, the presumed father formally acknowledged his
paternity. Approximately six years later, he filed a petition seeking to confirm
his paternity in the circuit court. In his petition, he conceded that his
involvement with the mother was consistent with his paternity. Nonetheless,
he requested that both the mother and child submit to genetic testing.
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The Department filed a complaint in intervention, seeking to recover
past due child support. The trial court ordered both the mother and child to
submit to testing, and the instant petition ensued.
STANDARD OF REVIEW
“Certiorari review is warranted when a non-final order (1) cannot be
remedied on postjudgment appeal, (2) results in material injury for the
remainder of the case, and (3) departs from the essential requirements of
law.” Dade Truss Co. Inc. v. Beaty,
271 So. 3d 59, 62 (Fla. 3d DCA 2019).
“The first two prongs of the analysis are jurisdictional.” Id.; see also Parkway
Bank v. Fort Myers Armature Works, Inc.,
658 So. 2d 646, 649 (Fla. 2d DCA
1995) (“[A] petitioner must establish that an interlocutory order creates
material harm irreparable by postjudgment appeal before [the] court has
power to determine whether the order departs from the essential
requirements of the law.”).
LEGAL ANALYSIS
It is well-established that “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.” State, Dep’t of Revenue ex rel. Carnley v. Lynch,
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So. 3d 1154, 1156 (Fla. 1st DCA 2011) (quoting State, Dep’t of Revenue ex
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rel. Chambers v. Travis,
971 So. 2d 157, 162 (Fla. 1st DCA 2007)); see also
Fla. Fam. L. R. P. 12.360(a); Fla. R. Civ. P. 1.360(a). A trial court is further
charged with determining that the testing would be in the “child’s best
interest.” Flores v. Sanchez,
137 So. 3d 1104, 1108 (Fla. 3d DCA 2014).
Section 742.10, Florida Statutes (2022), governs paternity
determinations for children born out of wedlock. As relevant to this dispute,
once a father executes a voluntary acknowledgment of paternity, the
document “constitutes the establishment of paternity for purposes of [chapter
742].” § 742.10(1), Fla. Stat. The acknowledgment additionally creates a
rebuttable presumption of paternity, which any signatory may rescind within
sixty days of execution. Id. After sixty days, however, the document “may
be challenged in court only on the basis of fraud, duress, or material mistake
of fact, with the burden of proof upon the challenger.” § 742.10(4), Fla. Stat.
(emphasis added). Alternatively, an affiant may file a petition to disestablish
paternity pursuant to section 742.18(1), Florida Statutes.
In the instant case, the presumed father conceded he executed the
acknowledgment of paternity, and the acknowledgment was never
rescinded. He did not allege in his petition that the document was the
product of fraud, duress, or material mistake of fact, or that he endeavored
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to disestablish paternity. See § 742.18, Fla. Stat. Instead, he sought testing
merely to confirm his paternity.
In State, Department of Revenue ex rel. Sharif v. Brown,
980 So. 2d
590, 591 (Fla. 1st DCA 2008), the First District Court of Appeal determined
under identical circumstances that such a petition was akin to a discovery
request and therefore insufficient to place paternity in controversy or
establish good cause for compelled genetic testing. Several other decisions
have adopted similar reasoning and concluded certiorari relief is proper in
this context. See, e.g., Dep’t Revenue ex rel. Corbitt v. Alletag,
156 So. 3d
1110, 1112 n.2 (Fla. 1st DCA 2015) (“[A] request for DNA testing in a
[Department of Revenue]-initiated child support proceeding is properly
viewed as a discovery request.”); State v. Ceasar,
188 So. 3d 989, 991 (Fla.
1st DCA 2016) (holding father’s motion for genetic testing essentially sought
discovery where father did not plead basis to disestablish paternity and, thus,
failed to place paternity in controversy); Dep’t of Revenue o/b/o Meeker v.
Silva,
214 So. 3d 766, 769 (Fla. 5th DCA 2017) (noting court order
compelling paternity test was analogous to discovery order and granting
certiorari relief because “trial court made no finding of ‘good cause’ . . . nor
was there any testimony or evidence presented that could have supported
such a finding”).
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We find this logic persuasive. Under the applicable statutory scheme,
the presumed father was required, at a minimum, to raise allegations of
fraud, duress, or mistake of fact, or communicate his intent to disestablish
paternity. He did neither, and the court failed to find the testing was in the
best interests of the child.
In view of these omissions, we find that the challenged order runs afoul
of the essential requirements of the law. See Alletag, 156 So. 3d at 1112–
13 (citations omitted) (“An order departs from the essential requirements of
law when it violates a clearly established principle of law (including
controlling case law) resulting in a miscarriage of justice. Here, the
challenged order violates controlling case law . . . because the record
establishes that the father did not place the child’s paternity in controversy
or establish good cause for paternity testing.”); Travis,
971 So. 2d at 162
(“Absent any allegation or proof of fraud, duress, material mistake of fact, or
newly discovered evidence, no good cause was shown to justify the hearing
officer’s recommendation to require the mother and child to submit to DNA
testing.”); Allison v. Medlock,
983 So. 2d 789, 790 (Fla. 4th DCA 2008)
(citations omitted) (“[P]aternity in this case has been presumptively
established and the only bases upon which the mother can disestablish
paternity are fraud, duress, or material mistake of fact, and she bears the
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burden of proof. At this point, the mother has not alleged or demonstrated
any of these grounds. As a result, there is no good cause for ordering DNA
testing.”). Given the intrusive nature of the compulsory testing, we further
conclude that the departure results in harm that cannot be remedied on
plenary appeal. See Dep’t of Revenue ex rel. T.E.P. v. Price,
958 So. 2d
1045, 1046 (Fla. 2d DCA 2007) (holding order compelling genetic test would
be irremediable on direct appeal, as “the improper genetic testing requiring
a blood draw would have already been completed”); Dep’t of Revenue ex rel.
Gardner v. Long,
937 So. 2d 1235, 1237 (Fla. 1st DCA 2006) (“We find that
subjecting Mother and Child to a potentially intrusive [paternity] test . . . is
enough to constitute irreparable harm.”); Llanos v. Huerta,
296 So. 3d 472,
474 (Fla. 3d DCA 2018) (“[T]he trial court departed from the essential
requirements of the law resulting in material injury for which there is no
adequate remedy upon post-judgment appeal when it compelled [the
parents] to submit their minor child to paternity testing.”). Consequently, we
grant the petition for writ of certiorari and quash the order under review.
Petition granted. Order quashed.
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