FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; William D. Sites,
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.
appearance for Appellees.
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.
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
(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
this brief explanation of the statutory requirements behind
us, we turn to the facts of this case.
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
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.
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.