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Department of Revenue v. M.J.M.

Florida Court of Appeals, Second District

April 28, 2017

DEPARTMENT OF REVENUE, Appellant,
v.
M.J.M. and A.M.R., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; William D. Sites, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tampa; and Carrie R. McNair, Assistant Attorney General, Tallahassee (substituted as counsel of record), for Appellant.

          No appearance for Appellees.

          OPINION

          SALARIO, JUDGE.

         The Department of Revenue appeals from a final order granting M.J.M.'s petition to disestablish paternity pursuant to section 742.18, Florida Statutes (2012). DOR asserts that the order runs afoul of the requirements of that statute because (1) M.J.M.'s petition was not based on newly discovered evidence, (2) M.J.M. did not file the petition within ninety days of a DNA test establishing that he was not the father, and (3) M.J.M. did not prove, and the trial court did not find, that M.J.M. substantially complied with his child support obligations and that any delinquency was attributable to just cause. As we explain below, we find no merit in DOR's arguments regarding newly discovered evidence and the timeliness of M.J.M.'s petition. We agree with DOR, however, that the trial court failed to make legally required findings on the child support issue, and we therefore reverse its order and remand for that purpose.

         I.

         A.

         Section 742.18(1) identifies the "circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child." The statute regulates both the manner in which a male seeking to disestablish paternity or terminate a support obligation must seek that relief and the findings that a trial court must make to order those remedies. As to the manner in which relief should be sought, the statute provides that the male must file a petition with the trial court that includes the following:

(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

§ 742.18(1). The statute also provides that a court must grant relief upon a finding of several facts, which include the following that are relevant to DOR's appellate arguments in this case:

(a) Newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination or establishment of a child support obligation.
. . . .
(c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

§ 742.18(2).

         With this brief explanation of the statutory requirements behind us, we turn to the facts of this case.

         B.

         In May 2005, DOR filed a complaint to establish paternity against M.J.M., who the mother then claimed was the father of M.R. M.J.M. did not serve an answer to that complaint. Nor did he otherwise appear in the action or defend himself in that action. As a result, in August 2005, the trial court entered a final judgment establishing that M.J.M. was M.R.'s father and ordering him to make payments for the support of M.R.

         On December 6, 2012, M.J.M. through counsel filed a petition to disestablish paternity pursuant to section 742.18. He named DOR and M.R.'s mother as respondents. The petition alleged that after paternity was established, M.R.'s mother called M.J.M. and admitted, for the first time, that M.R. was not his child. With the mother's blessing, M.J.M. thereafter took a paternity test in June 2010 which confirmed her admission. The petition alleged that these two things constituted newly discovered evidence and attached the results of the DNA test. M.J.M. further alleged in an affidavit attached to the petition that he was either current on his child support obligation or in substantial compliance with the obligation and that any delinquency in his obligation arose from his inability for just cause to pay it.

         DOR filed an answer in which it neither admitted nor denied M.J.M.'s allegations regarding the mother's admission and the DNA test and asserted no defenses related to either the newly discovered evidence claim or the timeliness of the DNA test. It did, however, contest M.J.M.'s claim that he was in compliance with his child support obligation by stating he owed more than $20, 000 in back child support. ...


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