07-2833 STATE OF FLORIDA, DEPT. OF REVENUE, etc. v. TERRELL D. TRAVIS

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida First District Court » 2007 » 07-2833 STATE OF FLORIDA, DEPT. OF REVENUE, etc. v. TERRELL D. TRAVIS

State: Florida

Court: Florida First District Court

Docket No: 07-2833

Case Date: 12/17/2007

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STATE OF FLORIDA, DEPARTMENT OF REVENUE on behalf of DONNESHIA CHAMBERS, Petitioner, v. TERRELL D. TRAVIS, Respondent. ___________________________/ Opinion filed December 17, 2007. Petition for Writ of Certiorari - Original Jurisdiction. 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. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-2833

BENTON, J. By petition for writ of certiorari, the Department of Revenue (DOR) seeks review 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

See 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."); Dep't of Revenue ex rel. T.E.P v. Price, 958 So. 2d 1045, 1046 (Fla. 2d DCA 2007) ("Because this error cannot be corrected through a direct appeal, for the improper genetic testing requiring a blood draw would have already been completed, the error must be corrected through certiorari proceedings."); Reiss v. Dep't of Revenue ex rel. Sava, 753 So. 2d 764, 765 (Fla. 4th DCA 2000) (granting DOR's petition for writ of certiorari where trial court improperly ordered paternity test); Dep't of Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 858 (Fla. 4th DCA 1995) (same); Marshek v. Marshek, 599 So. 2d 175, 176 (Fla. 1st DCA 1992) (same). See generally Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000); Vanguard Fire and Cas. Co. v. Golmon, 955 So. 2d 591, 593 (Fla. 1st DCA 2006); Kirlin v. Green, 955 So. 2d 28, 29 (Fla. 3d DCA 2007); Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So. 2d 1041, 1041 (Fla. 5th DCA 2007). 2

1

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 certiorari seeking review of the trial court's non-final order denying a motion to vacate authorized by rule 12.491.

DOR's motion to vacate did not delay rendition of the trial court's earlier order ratifying the hearing officer's recommended order. See Fla. R. App. P. 9.020(h) (2007) (providing that a motion "to vacate an order based on the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.491" delays rendition of any final order). A litigant cannot expand the time for seeking review of a non-final order (e.g., an order on a discovery motion, which is one way to characterize what the petitioner seeks review of here) by filing a petition for writ of certiorari addressed to an order on a motion for rehearing of an earlier non-final order that the petitioner failed to challenge in a timely manner. See, e.g., Blades v. Henry, 720 So. 2d 323, 324 (Fla. 4th DCA 1998) (holding petitioner cannot circumvent time requirements for seeking certiorari review of an order denying a motion for a protective order by filing a successive motion seeking the same relief and seeking certiorari review that is timely only with respect to the order denying the second motion); Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094, 1094-95 (Fla. 4th DCA 1991) (concluding that petitioner may not evade the time requirements for seeking certiorari review by filing a second motion in the trial court raising issues identical to those addressed in an earlier order). 3
3

2

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.

Download 07-2833 STATE OF FLORIDA, DEPT. OF REVENUE, etc. v. TERRELL D. TRAVIS.pdf