State of Florida, Department of etc. v. Jesse L. Smith

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
ON BEHALF OF BONNIE DISPOSITION THEREOF IF FILED
BARNHILL,
CASE NO. 1D15-1587
Petitioner,
v.
JESSE L. SMITH,
Respondent.
___________________________/
Opinion filed November 9, 2015.
Petition for Writ of Certiorari.
Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney
General, Tallahassee, for Petitioner.
No appearance for Respondent.
PER CURIAM.
The Florida Department of Revenue (“DOR”) petitions for a writ of certiorari to
review the lower court’s order adopting verbatim the order of the general magistrate
granting the father’s motion for genetic testing and ordering the “custodian to produce
the minor child” for said purpose. As did the order in Florida Department of Revenue
ex rel. Corbitt v. Alletag, 156 So. 3d 1110 (Fla. 1st DCA 2015), the order in this case
departs from the essential requirements of law because the issue of paternity was not
placed in controversy by the father and good cause was not shown for paternity testing.
Accord Fla. Dep’t of Revenue ex rel. Haye v. Kerr, 155 So. 3d 1262 (Fla. 1st DCA
2015). Furthermore, although this cause was initiated by DOR in a proceeding to
establish the father’s child support obligation when the child was in the custody of his
grandmother, the “custodian” of the child at the time of the hearing before the general
magistrate was the child’s mother. As she candidly acknowledged during the hearing,
the general magistrate (and, hence, the lower court) lacked personal jurisdiction over
the mother to order her to produce the child for testing.
PETITION GRANTED; ORDER QUASHED.
LEWIS, SWANSON, and WINOKUR, JJ., CONCUR.
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