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

• Court: District Court of Appeal of Florida
• Decided: November 8, 2015
• Docket: 15-1587
• Status: Published

Opinion

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.

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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.