State Of Florida, Dept. Of Revenue v. Gary L. Ceasar, Jr. , 2016 Fla. App. LEXIS 6248 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF REVENUE, FILE MOTION FOR REHEARING AND
and ROSE THOMAS, DISPOSITION THEREOF IF FILED
Petitioners, CASE NO. 1D15-2708
v.
GARY L. CEASAR, JR.,
Respondent.
___________________________/
Opinion filed April 25, 2016.
Petition for Writ of Certiorari – Original Jurisdiction.
Pamela Jo Bondi, Attorney General, William H. Branch, Assistant Attorney
General, for Petitioner.
Gary L. Ceasar, Jr., pro se, Respondent.
PER CURIAM.
The Florida Department of Revenue seeks certiorari review of an order
directing respondent Gary L. Ceasar and a non-party, adult child, to submit to genetic
testing. Mr. Ceasar did not respond to the show cause orders entered by this court
directing him to respond to the Department’s petition. And now, upon consideration
of the merits in the absence of a response, we grant the petition and quash the order
compelling genetic testing, which shouldn’t have been entered in the absence of
proceedings placing paternity in controversy.
Mr. Ceasar moved for scientific paternity testing below, apparently as a step
toward challenging a more than five-year-old paternity order establishing him as the
father of a child. The paternity order also set a child support arrearage amount in
favor of the child’s grandmother, Rose Thomas. Mr. Ceasar has known about the
order for a while, asserting that thousands of dollars have been garnished from his
wages by the Department (consistent with his $258/month obligation). Mr. Ceasar
testified before the hearing officer below that the child could not be his because he
was just 12 when the child was born.
We have recognized that “no party to any family law proceeding is entitled to
an order requiring another party to submit to genetic testing unless the proceedings
place paternity ‘in controversy.’” Fla. Dep’t of Revenue ex rel. Corbitt v. Alletag,
156 So. 3d 1110, 1112–13 (Fla. 1st DCA 2015); State, Dep’t of Revenue ex rel.
Sharif v. Brown, 980 So. 2d 590, 591–92 (Fla. 1st DCA 2008); State, Dep’t of
Revenue ex rel. Chambers v. Travis, 971 So. 2d 157, 162 (Fla. 1st DCA 2007) (citing
Fla. R. Civ. P. 1.360). And we have described how to place paternity in controversy
in circumstances like this, as recently as in Florida Department of Revenue ex rel.
Torres v. Spraggs, 40 Fla. L. Weekly D2358 (Fla. 1st DCA Oct. 15, 2015), stating:
Florida law provides a statutory framework for contesting the
establishment of paternity for a child born out of wedlock and for
disestablishing paternity or terminating child support obligations when
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the male is not the biological father of the child. The establishment of
paternity for a child born out of wedlock “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. (2015).
Alternatively, a male may disestablish paternity or terminate a child
support obligation when the male is not the biological father of the
child, upon meeting specific pleading and proof requirements in circuit
court, which include attesting that newly discovered evidence relating
to the paternity of the child has come to the petitioner's knowledge since
the initial paternity determination or establishment of a child support
obligation. § 742.18, Fla. Stat. (2015).
In this case, however, Mr. Ceasar has not pled a basis to disestablish paternity under
either § 742.10(4) or § 742.18. And there were no pending paternity proceedings at
the time the order was entered below. Instead, Mr. Ceasar filed a bare motion for
genetic testing, essentially seeking discovery in a non-existent paternity
action. See Travis, 971 So. 2d at 161–62.1 Because Mr. Caesar has not placed
paternity in controversy, the order requiring genetic testing departed from clearly
1
There are jurisdictional and other problems associated with equating Mr. Ceasar’s
motion with an action to disestablish paternity. For instance, he did not allege the
specific things required by the statutes to plead an action to disestablish paternity.
Also, the family law rules of procedure provide that “[a] support enforcement
hearing officer does not have the authority to hear contested paternity cases,” see
Fla. Fam. L.R.P. 12.491(e). If paternity had been in controversy here, the hearing
officer could not have addressed it. See State, Dep’t of Revenue ex rel. Striggles v.
Standifer, 990 So. 2d 659, 661 (Fla. 1st DCA 2008). And the five-year period that
Mr. Ceasar waited to question his paternity may present a res judicata problem. See,
e.g., Dep’t of Revenue v. Myrick, 706 So. 2d 104, 105 (Fla. 5th DCA 1998) (“Once
paternity is established by court order, absent a showing of fraud upon the court, the
issue of paternity is res judicata and a subsequent judge has no jurisdiction to order
that the issue be relitigated.”); State, Dep’t of Revenue ex rel. Donaldson v. Blocker,
988 So. 2d 1292, 1293 (Fla. 2d DCA 2008) (vacating a paternity testing order where
a five-year-old paternity order had not been properly challenged).
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established legal principles. 2
For this reason, we GRANT the petition for writ of certiorari and QUASH the
trial court’s order compelling genetic testing.
ROBERTS, CJ., MAKAR and OSTERHAUS, JJ., concur.
2
We note that the 21-year-old child whom the court ordered to submit to a DNA test
was not a party below, nor apparently given notice of the proceedings. With paternity
not in controversy, the adult child possesses his own legal rights related to the
ordered testing, including notice. See § 760.40(2)(a), Fla. Stat. (“DNA analysis may
be performed only with the informed consent of the person to be tested, and the
results of such DNA analysis, whether held by a public or private entity, are the
exclusive property of the person tested, are confidential, and may not be disclosed
without the consent of the person tested.”). Cf. Chavez v. J & L Drywall & Travelers
Ins. Co., 858 So. 2d 1266, 1268-69 (Fla. 1st DCA 2003) (recognizing that a
compelled medical examination implicates the rights of the party being examined).
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