5D03-2696 Kinzer v. Bickerstaff

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2696

Case Date: 07/04/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

CREIGHTON L. KINZER, Appellant, v. BOBBIE JO BICKERSTAFF, et al., Appellee. ________________________________/ Opinion filed July 8, 2005. Appeal from the Circuit Court for Orange County, Robert Evans, Judge. Melanie M. Demps, of Dorothy J., McMichen, P.A., Orlando, for Appellant. Charles J. Crist, Jr., Attorney General, and Toni C. Bernstein and William H. Branch, Assistant Attorneys General, Tallahassee, for Appellee, Bobbie Jo Bickerstaff. Mary A. Nardi of Nardi & Nardi, P.A., Orlando, for Appellee, James Rini. THOMPSON, J. Creighton L. Kinzer ("Kinzer") appeals an order amending the final judgment dissolving the marriage between him and Bobbie Jo Bickerstaff ("Bickerstaff"). Kinzer and Bickerstaff obtained a simplified dissolution of marriage and in their petition they alleged that there were no children born or expected from the marriage. Both knew this Case No. 5D03-2696

to be inaccurate.

Years later, the Department of Revenue ("DOR"), on behalf of

Bickerstaff, sought to amend the judgment to state that there was a child born of the marriage and that the judgment should be amended to state that there was a child and that Kinzer was obligated to provide child support. Kinzer opposed the petition and requested DNA testing to prove that he was not the father of the child. The DOR opposed the motion. The trial court ruled that the presumption that Kinzer was the father had not been overcome and denied Kinzer's motion to order DNA testing. The court entered an amended final judgment of dissolution providing that the child was a product of the marriage, that Kinzer was the father of the child, and that he was required to provide support. The trial court ordered shared parental responsibility, although

Kinzer had not asked for it and indeed testified that he would have nothing to do with the child. Upon the confession of error by the DOR that DNA testing should have been required, we reverse the decision of the trial court and remand with directions to order DNA testing. See Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997); Gantt v. Gantt, 716 So. 2d 846 (Fla. 4th DCA 1998). REVERSED and REMANDED.

PETERSON, J., and SMITH, C., Associate Judge, concur.

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