STATE, DEPT. OF REVENUE v. Travis

971 So. 2d 157, 2007 WL 4372795
CourtDistrict Court of Appeal of Florida
DecidedDecember 17, 2007
Docket1D07-2833
StatusPublished
Cited by25 cases

This text of 971 So. 2d 157 (STATE, DEPT. OF REVENUE v. Travis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE, DEPT. OF REVENUE v. Travis, 971 So. 2d 157, 2007 WL 4372795 (Fla. Ct. App. 2007).

Opinion

971 So.2d 157 (2007)

STATE of Florida, DEPARTMENT OF REVENUE on behalf of Donneshia CHAMBERS, Petitioner,
v.
Terrell D. TRAVIS, Respondent.

No. 1D07-2833.

District Court of Appeal of Florida, First District.

December 17, 2007.

*158 Bill McCollum, Attorney General, Melody A. Hadley, Assistant Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner.

John J. Maceluch, Jr., Tallahassee, for Respondent.

BENTON, J.

By petition for writ of certiorari, the Department of Revenue (DOR) seeks review *159 of a non-final circuit court order denying DOR's motion to vacate an order requiring paternity testing. In the absence of any showing of good cause, the circuit court departed from the essential requirements of law in requiring the mother (along with respondent and the child) to submit to DNA testing. Because this departure may result in harm that cannot be remedied on plenary appeal,[1] we grant the petition.

I.

We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A) (2007). The petition for writ of certiorari was filed within 30 days of the circuit court's order denying DOR's motion to vacate (although more than 30 days after the initial order was entered). See Fla. R.App. P. 9.100(c)(1) (2007). Florida Family Law Rule of Procedure 12.491(f) (2007), provides that the circuit court, upon review of a hearing officer's recommended order, "shall enter an order promptly" but authorizes "[a]ny party affected by the order [to] move to vacate the order by filing a motion to vacate within 10 days from the date of entry" and sets forth procedures for the hearing on the motion to vacate.[2]See Fla. Fam. L.R.P. 12.491(f)-(h) (2007) (contemplating, inter alia, preparation of a record of the proceedings before the hearing officer). Under the circumstances, petitioner's compliance with the specific procedures set forth in rule 12.491 for challenging an order approving a hearing officer's recommendation does not preclude seeking certiorari review of the trial court's order denying the motion to vacate.[3] We have jurisdiction to consider the merits of DOR's petition for writ of *160 certiorari seeking review of the trial court's non-final order denying a motion to vacate authorized by rule 12.491.

II.

On January 20, 2003, Donneshia Chambers and Terrell D. Travis executed a "paternity affidavit by natural parents" acknowledging Mr. Travis as the biological father of a child born two days earlier. This duly notarized affidavit established a "rebuttable presumption . . . of paternity" pursuant to section 742.10(1), Florida Statutes (2003), which provides, in relevant part, as follows:

[W]hen an affidavit or notarized voluntary acknowledgment of paternity as provided for in s. 382.013 or s. 382.016 is executed by both parties, it shall constitute the establishment of paternity for purposes of this chapter. If no adjudicatory proceeding was held, a notarized voluntary acknowledgment of paternity shall create a rebuttable presumption . . . of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days of the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

§ 742.10(1), Fla. Stat. (2003). Pursuant to section 742.10(4), Florida Statutes (2007), such a signed voluntary acknowledgment of paternity, because it was not rescinded within the 60-day period following the date the acknowledgment was signed, "shall constitute an establishment of paternity and 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."

III.

On October 17, 2005, some two years and nine months after Mr. Travis formally acknowledged paternity, the DOR filed (on behalf of Ms. Chambers) a petition for support and other relief seeking to establish that respondent had a child support obligation. In accordance with Florida Family Law Rule of Procedure 12.491(d) (2005), the DOR's petition to establish the respondent's child support obligation was referred to a support enforcement hearing officer. Although acknowledging that he signed the paternity affidavit and alleging that he had in fact acted as the child's custodial parent for most of the child's life, Mr. Travis, out of a "desire[ ] to be sure that he is the biological father of the child" in light of what he alleged to have been the mother's "past promiscuous behavior," requested DNA testing prior to the establishment of any support obligation.

Over DOR's objections that signing a paternity affidavit had made him the legal father of the child pursuant to section 742.10, Florida Statutes (2003), and that the hearing officer lacked jurisdiction to hear contested paternity cases pursuant to Florida Family Law Rule of Procedure 12.491 (2006), the hearing officer recommended to the trial court entry of an order requiring the mother, the child, and Mr. Travis to submit to DNA testing at his expense. The trial court entered an order approving and ratifying the hearing officer's recommended order, and later, at a hearing held pursuant to Florida Family Law Rule of Procedure 12.491(f) (2007), refused to vacate its initial order.

IV.

Where the putative father is not the child's biological father, the Legislature has provided that paternity established by his voluntary acknowledgment of paternity may be "disestablished" in accordance *161 either with section 742.10(4) or with section 742.18, Florida Statutes (2007): There are two different ways for somebody whose voluntary acknowledgment of paternity has rendered him a child's legal father pursuant to section 742.10, Florida Statutes (2007), to disestablish paternity. See §§ 742.10(4), 742.18, Fla. Stat. (2007).

A signed voluntary acknowledgment of paternity that establishes paternity pursuant to section 742.10(4), Florida Statutes (2007), may be challenged "on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger." § 742.10(4), Fla. Stat. (2007). A challenge may be brought on these grounds under section 742.10(4), whether or not all the requirements set out in section 742.18 are met. See § 742.18(11), Fla. Stat. (2007).

In addition, "a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child," § 742.18(1), Fla. Stat. (2007), although neither fraud nor duress induced the signing of the acknowledgment of paternity, except in certain circumstances.[4]

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Bluebook (online)
971 So. 2d 157, 2007 WL 4372795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-revenue-v-travis-fladistctapp-2007.