DEPT. OF REV. EX REL. PRESTON v. Cummings, No. 2D02-5333

• Decision Date: 12 May 2004
• Docket Number: No. 2D02-5333, No. 2D02-5277, No. 2D02-5264, No. 2D02-5318, No. 2D02-5279, No. 2D02-5261.
• Citation: 871 So.2d 1055
• Parties: DEPARTMENT OF REVENUE, o/b/o Amelia PRESTON, Appellant, v. James (Willie) CUMMINGS, Appellee. Department of Revenue, o/b/o Tina L. Cummings, Appellant, v. Henry J. Stafford, II, Appellee. Department of Revenue, o/b/o Sallie M. Clark, Appellant, v. Larry J. Peruzzi, Appellee. Department of Revenue, o/b/o Sandra Stephens, Appellant, v. Vennis Norris Ellis, Appellee. Department of Revenue, o/b/o Susan Marie Thompson, Appellant, v. William O. Stanton, III, Appellee. Department of Revenue, o/b/o Kelly Inglis, Appellant, v. Christopher E. Hotalen, Appellee.
• Court: Florida District Court of Appeals

871 So.2d 1055

DEPARTMENT OF REVENUE, o/b/o Amelia PRESTON, Appellant, v. James (Willie) CUMMINGS, Appellee.

Department of Revenue, o/b/o Tina L. Cummings, Appellant, v. Henry J. Stafford, II, Appellee.

Department of Revenue, o/b/o Sallie M. Clark, Appellant, v. Larry J. Peruzzi, Appellee.

Department of Revenue, o/b/o Sandra Stephens, Appellant, v. Vennis Norris Ellis, Appellee.

Department of Revenue, o/b/o Susan Marie Thompson, Appellant, v. William O. Stanton, III, Appellee.

Department of Revenue, o/b/o Kelly Inglis, Appellant, v. Christopher E. Hotalen, Appellee.

Nos. 2D02-5333, 2D02-5318, 2D02-5279, 2D02-5277, 2D02-5264, 2D02-5261.

District Court of Appeal of Florida, Second District.

May 12, 2004.

Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellants.

No appearance for Appellees James (Willie) Cummings, Henry J. Stafford, II, Larry J. Peruzzi, Vennis Norris Ellis, William O. Stanton, III, Christopher E. Hotalen.

ALTENBERND, Chief Judge.

In these six consolidated cases, the Department of Revenue, on behalf of six mothers, filed complaints against six putative biological fathers seeking to determine paternity and to establish child support for various children. In each case, the mother was married to a man other than the alleged biological father at the time of the child's birth. The circuit court dismissed each complaint for failure to join the legal father, i.e., the mother's husband at the time of a child's birth,¹ as an indispensable party. We affirm the orders dismissing these cases. The factual allegations in these complaints do not establish a legal basis for the Department's decision to ignore the presumption of each child's legitimacy by pursuing support from a putative biological father without joining the legal father. Indeed, it appears likely that the Department should initiate child support proceedings against the legal fathers instead of the putative fathers in all of these cases. Our decision requires us to certify conflict with the First District's decision in State, Department of Revenue v. Pate, 824 So.2d 1038 (Fla. 1st DCA 2002) (holding legal father listed on child's birth certificate was not indispensable party to paternity action brought by Department to establish child support).

In each of these cases, the Department filed a standard form complaint entitled, "Complaint to Establish Paternity, Child Support and Other Relief Without Affecting Legal Rights of Husband of Mother at Time of Birth." The Department named only the alleged biological fathers in the complaints. Paragraph 5 of each complaint stated, "The mother of the minor child(ren) was married to a man other than the Respondent at the time the child(ren) was conceived or born, but Petitioners do not seek to affect any legal rights relating to this child(ren) said individual may possess."

The boilerplate language in each complaint did not disclose the individual circumstances of each case. However, most of the complaints attached another form, a document referred to in the complaint as an affidavit, but actually entitled "Complaint to Establish Paternity, Child Support and Other Relief." On this form, each mother filled in the blanks and signed the form, which was notarized under oath. Each of these forms provided varying amounts of information. In some cases, the child or children bear the surname of their legal father, while in others they bear the surname of their biological father. There was little or no information in these forms regarding the legal fathers, the status of their marriage to the mothers, or their relationships with the children. The Department did not attach any marriage certificates or judgments dissolving marriages to the complaints. Similarly, there were no birth certificates attached to the complaints that might disclose how each child's parentage is listed on that document.

The Department served the putative biological fathers with these complaints. Three did not answer the complaint and have not appeared in these proceedings to date. One filed a pro se answer but failed to appear at the hearing held before the circuit court regarding the dismissal. One appeared at the hearing but failed to file a written response to the complaint. The sixth putative biological father had a grandfather who appeared at the hearing and attempted to answer the complaint, indicating that his grandson was incarcerated, indigent, and suffering from problems with alcohol. None of the alleged biological fathers have appeared in this proceeding.

Although the Department did not name the legal fathers of the children as defendants to the complaints, the Department sought to issue to each legal father a "notice of action to legal father." This notice provided:

YOU ARE HEREBY NOTIFIED that the above-styled action has been filed to determine the paternity of the child(ren) born on the dates indicated in the Complaint to determine paternity and Exhibits attached thereto, a copy of which is attached hereto. In filing this action, Petitioners seek to have the named Respondent ordered to pay child support for the child(ren) who are the subject of this action. YOU ARE NOT THE NAMED RESPONDENT. If you were legally married to the mother named in the Complaint at the time the child(ren) [sic] was either conceived or born, you may have legal rights or responsibilities you wish to assert.

Although in filing this action the Petitioners do not seek to affect any rights you may possess, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR OWN CHOOSING WITH REGARD TO YOUR RIGHTS AND POTENTIAL RESPONSIBILITIES. Your failure to file a pleading and/or attend a hearing in this cause will be interpreted as your having no objection to the Respondent being adjudicated to be the biological father of the named child(ren).

In five of the cases, the Department attempted to personally serve the legal fathers, but all of the notices were returned unserved. The Department asserts it also mailed the notices by regular United States mail to each legal father. No legal father has appeared in these proceedings to date.

Each case was filed in a circuit court division over which Judge Logan presided. Judge Logan reviewed these complaints and became understandably concerned about the Department's procedure and the interests of the legal fathers and the children who might be affected by these proceedings. Judge Logan set a status conference to address whether the legal fathers were indispensable parties to these actions in light of Department of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993), and R.H.B. v. J.B.W., 826 So.2d 346 (Fla. 2d DCA 2002). After this hearing, Judge Logan dismissed these complaints for failure to join the legal fathers as indispensable parties.

Because neither the putative biological fathers nor the legal fathers for these children have appeared in this appeal, this court is proceeding solely upon a brief filed by the Department. Further, this court has no way of determining whether the legal fathers, or indeed some of the putative biological fathers, are receiving copies of this court's proceedings, because they are being mailed to addresses provided by the Department.

The Department argues that the legal fathers of these children—the men to whom the mothers were married at the time of each child's birth—are not indispensable parties to this action. See Pate, 824 So.2d 1038. The Department asserts that it can pursue a paternity action against the biological fathers and enter a judgment determining paternity without affecting the legal fathers' rights. As such, the Department argues that it need only provide some form of informal notice to the legal fathers of the proceedings or any hearings in these cases. We disagree. As these complaints are pleaded, the circuit court cannot determine who has a duty to support these children without the joinder of the legal fathers.

Indispensable parties are "necessary parties so essential to a suit that no final decision can be rendered without their joinder." Hertz Corp. v. Piccolo, 453 So.2d 12, at 14 n. 3 (Fla.1984). An indispensable party has also been described as "one whose interest will be substantially and directly affected by the outcome of the case" and "one whose interest in the subject matter is such that if he is not joined a complete and efficient determination of the equities and rights between the other parties is not possible." Amerada Hess Corp. v. Morgan, 426 So.2d 1122, 1125 (Fla. 1st DCA 1983); Allman v. Wolfe, 592 So.2d 1261, 1263 (Fla. 2d DCA 1992).

These paternity cases seek to determine the man who has a legal duty to support the children involved. See § 409.2564(1), Fla. Stat. (2002) (requiring Department of Revenue to institute "action as is necessary to secure the obligor's payment of current support" when regular support payments are not being made to obligee receiving public assistance); D.F. v. Dep't of Revenue, 736 So.2d 782, 785 n. 3 (Fla. 2d DCA 1999),aff'd,823 So.2d 97 (Fla.2002) (noting paternity action is filed to establish legal father who will be legally responsible to support child). Thus the indispensable parties to these actions are those persons who may have a legal duty to support the children involved. Further, if the duty to support cannot be completely divorced from other parental rights, those persons whose parental rights to the children may be affected by the proceedings would also be indispensable parties.

When a child is born during a marriage, the legal duty to support that child presumptively rests with the parties to the marriage. This is because a child born during a marriage is presumed to be the legitimate and legal child of the husband and wife. See Achumba v. Neustein, 793 So.2d 1013, 1014 (Fla. 5th DCA 2001)

; G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999). This presumption has been described as "one of the...