Benardo v. DOR EX REL. REILLY

• Decision Date: 08 May 2002
• Docket Number: No. 4D01-884.,4D01-884.
• Parties: Reed BENARDO, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Linda J. REILLY, Appellee.
• Court: Florida District Court of Appeals

819 So.2d 161

Reed BENARDO, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Linda J. REILLY, Appellee.

No. 4D01-884.

District Court of Appeal of Florida, Fourth District.

May 8, 2002.

Steven G. Glickstein, Lauderhill, for appellant.

Robert A. Butterworth, Attorney General, and Leslei G. Street, Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

We withdraw our opinion issued April 24, 2002, and substitute the following in its place.

Reed Benardo, the putative father in a disputed paternity action, appeals the denial of his motion to vacate the trial court's order on temporary child support arguing that, because the issue of temporary support was heard by a hearing officer who made recommendations to the court, the resulting order is null and void. Specifically, he claims that the hearing officer did not have jurisdiction to hear the issue of temporary support where he was contesting the outcome of the paternity testing, an issue that appears to be one of first impression. We agree with the appellant, and reverse and remand for further proceedings.

According to the record, the Department of Revenue (DOR) on behalf of Linda J. Reilly, the mother, who lives in Pennsylvania, filed a paternity action against Benardo, who resides in Florida. On March 28, 1995, DOR filed the results in this case showing a probability of paternity of 99.96%. Benardo disputed the results. Pursuant to section 742.031, Florida Statutes, which provides that "[t]he court shall issue, upon motion by a party, a temporary order requiring the provision of child support pursuant to section 61.30 pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence," DOR sought to establish temporary support for the mother.

Accordingly, the trial court referred the matter for determination of the amount of temporary support to a hearing officer. Benardo objected to the referral to the hearing officer arguing that the hearing officer lacked subject matter jurisdiction to hear the matter in a disputed paternity action pursuant to the provisions of Family Law Rule of Procedure 12.491(2), which governs the general powers and duties of the support enforcement officer. Specifically, Benardo's objection was that under rule 12.491, "a support enforcement hearing officer does not have the authority to hear contested paternity cases."

On December 7, 1999, the trial court denied both DOR's motion for summary judgment of the paternity action and Benardo's objection to the temporary child support being heard by the hearing officer. Thereafter, a temporary support hearing was held on June 14, 2000, before the hearing officer.

At that hearing, Benardo, again objected arguing that allowing the hearing officer to hear the matter violated rule 12.491, and once again, objected to the DNA test results.

On September 6, 2000, the hearing officer entered her recommended order on DOR's motion for temporary child support. The hearing officer recommended the trial court enter an order that the only issue addressed in the hearing was temporary support pursuant to section 742.031, Florida Statutes, and that Benardo should begin paying child support in the amount of $588.00 per month.

On September 25, 2000, the trial court ratified the report of the hearing officer and entered an income deduction order against Benardo ordering him to pay $588.00 per month for child support.

Benardo filed a timely motion to vacate the court's order ratifying the report of the hearing officer pursuant to rule 12.491(f).

A hearing was held on his amended motion to vacate the court's order ratifying the hearing officer's report on February 12, 2001. There, Benardo again argued, as he does to this court, that the hearing officer lacked subject matter jurisdiction to hear the issue of temporary child support because it is a contested paternity case.

Significantly, it appears from the record of the hearing that the hearing officer did not consider the contested issue of paternity. Instead, after the trial court determined that the hearing officer had jurisdiction to determine temporary child support, the hearing officer stated at the June 14, 2000, hearing, "I'm not hearing the contested paternity. I'm hearing the child support...."

Accordingly, the issues here are: (1) whether a hearing officer under Florida Family Law Rule 12.141 has the authority to hear the issue of temporary child support in a contested paternity action where the objection from the putative father is that the hearing officer does not have subject matter jurisdiction to hear the issue of temporary child support; and, (2) if the hearing officer has the authority to make support determinations, whether the DNA test results were properly entered into evidence.

As to Benardo's argument about the admissibility of the DNA test results, this court, in Morris v. Crawford, 718 So.2d 354 (Fla. 4th DCA 1998), citing the authority of Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984), explained that blood test results which were presented to the trial court without indication that they were compiled in course of regularly conducted activity, by someone or some information transmitted by someone with knowledge, that the practice of the "business" activity was to keep such records and that the opinion of paternity contained in the report would be admissible under statutes governing admissibility of opinion testimony were improperly submitted to the trial court for summary judgment purposes.

Here, unlike Morris, the record on appeal shows a verified affidavit from GeneScreen (the DNA testing facility) which states that the results and medically accepted procedures were followed "in accordance with the requirements of Florida Statute 90.803(6), governing the admission of business records into evidence, the said paternity evaluation test results were compiled in the course of regularly conducted activity at or near the time of the test by an individual employed by GeneScreen with knowledge, that the practice of the business activity was to keep such records, and the opinion of paternity contained in the report would be admissible under sections 90.701—90.705."

Under Dutilly, the proper predicate was laid for the admission of the DNA test results by the trial court. See Dutilly, 450 So.2d at 1197

. Consequently, the DNA results have been properly admitted.

Next, however, we are faced with the issue of whether it is proper to allow the hearing officer to hear the temporary hearing on child support pursuant to section 742.031, Florida Statutes, in a disputed paternity action, where the disputed paternity test are properly before the trial court.

DOR maintains that Chapter 742 contemplates two separate proceedings in a contested paternity action once a motion for temporary support is filed. DOR argues that, "[a]s a matter of law, on a motion for temporary child support pursuant to section 742.031(1), when a verified blood test provides clear and convincing evidence of paternity pursuant...