Florida Dept. of Revenue v. MLS, 2D98-3902.

• Decision Date: 18 February 2000
• Docket Number: No. 2D98-3902.,2D98-3902.
• Parties: FLORIDA DEPARTMENT OF REVENUE ex rel. R.A.E., Appellant, v. M.L.S., Appellee.
• Court: Florida District Court of Appeals

756 So.2d 125

FLORIDA DEPARTMENT OF REVENUE ex rel. R.A.E., Appellant, v. M.L.S., Appellee.

No. 2D98-3902.

District Court of Appeal of Florida, Second District.

February 18, 2000.

Rehearing Denied April 12, 2000.

Robert A. Butterworth, Attorney General, Tallahassee, and Jon J. Johnson, Assistant Attorney General, Tampa, for Appellant.

Thomas A. Smith, Tampa, for Appellee.

THREADGILL, Judge.

The Department of Revenue (DOR), on behalf of the natural mother of a thirteen-year-old child, appeals an order that sets aside a final order of child support and an order modifying child support. The order on appeal was entered after the putative father, the appellee, filed a motion to set aside the order of support based on a DNA paternity report that excluded him as being the child's father. DOR argues that the final order of support was res judicata on the issue of paternity and that the appellee was not entitled to challenge it eleven years after it was entered. We affirm.

Evidence in this meager record reveals that the parties had a sexual relationship during the time of the child's conception, but were never married. The child was born in June of 1986. Later that year, the Department of Health and Rehabilitative Services filed a petition for child support on behalf of the mother against the appellee. The petition alleged that the appellee was a legally responsible parent, as defined by chapter 409, Florida Statutes (Supp.1982), that he signed the minor child's birth certificate, and that the child was born as a consequence of the appellee's relationship with the child's mother.

In June of 1987, after a hearing, the trial court entered a final order requiring the appellee to pay child support. There is no indication in the record, however, that the issue of paternity was challenged or otherwise litigated at that hearing. Although the order of support states, "the defendant shall pay the sum of $40.00 per bi-weekly for the support of his minor child," the trial court specifically held in the order now on appeal that the child support order was entered "without a finding of paternity." For the next ten years, the appellee paid child support and had weekend contacts with the child.

In June of 1998, the appellee filed his motion to set aside the final order of child support. At the hearing on that motion, the appellee testified that he thought he was the child's father until November of 1997, when the child told him that he was not her real father and asked who her real father was. In May of 1998, as soon as he could afford the cost, the appellee took the child for the blood test, which excluded him as the father. The report of this test was presented to the trial court. At the conclusion of the hearing, the trial court set aside the final order of support and the order modifying support.

With regard to the issue of res judicata, a party claiming the benefit of a former adjudication has the burden of establishing, with sufficient certainty, by the record or by extrinsic evidence, that the matter was formerly adjudicated. See Wisconsin ex rel. North v. Martorella, 670 So.2d 1161 (Fla. 4th DCA 1996)

. A judgment establishing paternity should not be entered solely on unadmitted and unproven allegations of paternity, but on the basis of competent, substantial evidence. See id. at 1162. Here, as in North, absent factual or legal conclusions in the prior order, there is no indication paternity was ever adjudicated. See id. Thus, because the issue of paternity was not previously litigated and no finding of paternity was previously made, the child support orders were not res judicata and did not bar the appellee's challenge.

Further, DOR argued in the trial court that, by signing an acknowledgment on the back of the child's birth certificate stating he was the father, the appellee acknowledged paternity. The appellee testified, however, that he did not remember signing the birth certificate, and the certificate was not otherwise verified. Regardless, the appellee's signature on the back of the birth certificate did not have the effect of establishing paternity. Under the current version of the Florida Statutes, a voluntary acknowledgment of paternity creates a rebuttable presumption of paternity. See § 742.10(1), Fla. Stat. (1999). At the time of the execution of the birth certificate in this case, however, no such provision existed. See, e.g., §§ 742.011-742.11, Fla. Stat. (1985).

Citing Florida Rule of Civil Procedure 1.540, DOR also argues that the appellee's challenge to the final order of child support was untimely. Rule 1.540 states that relief based on mistake, newly discovered evidence, or intrinsic fraud may not be sought more than one year after the final order is entered. The trial court here, however, determined that it was no longer equitable for the order to have prospective application. According to the rule, relief based on equitable grounds may be sought within a reasonable time. Here, the appellee raised his challenge within a reasonable time after being told by the child that he was not her real father.

Our paramount consideration in paternity cases is the best interests of the child. See Benac v. Bree, 590 So.2d 536 (Fla. 2d DCA 1991)

; Marshall v. Marshall, 386 So.2d 11 (Fla. 5th DCA 1980). We are aware that the best interests of children generally would be served by finality and stability in matters involving paternity. In this case, however, the issue of paternity was never formally adjudicated. The child has been illegitimate since birth, and it was eventually determined that the appellee is not the child's father. The Florida Supreme Court has stated, "`a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted.'" Daniel v. Daniel, 695 So.2d 1253, 1254 (Fla.1997) (quoting Albert v. Albert, 415 So.2d 818, 820 (Fla. 2d DCA 1982)). The court also noted that such a rule could properly be applied in Daniel because it did not threaten the child's legitimacy. Id. at 1255; see also Department of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993)(once child is born legitimate, she has right to maintain status both factually and legally if doing so is in her best interest). In this case, the child was not legitimate, and the appellee's claim in no way affected her status in that regard. Further, at the hearing on the motion to set aside the orders of child support, both the appellee and the child's mother testified that the appellee no longer maintains a relationship with the child. Thus, we are unable to conclude that the child's best interest would be better served by receiving child support from a party who is not her father than by learning the identity of her father. If the appellee is no longer required to pay support, DOR and the child's mother will have an incentive to locate the child's father, and perhaps the child will have the opportunity to develop a meaningful relationship with him.

Accordingly, we affirm the order setting aside the final order of child support and order modifying child support. We certify the following question to the Florida Supreme Court as a matter of great public importance:

WHETHER AN INDIVIDUAL, WHO HAS BEEN TOLD HE IS THE FATHER OF A CHILD BORN OUT OF WEDLOCK, WHO SIGNED THE CHILD'S BIRTH CERTIFICATE, WHO NEVER MARRIED THE CHILD'S MOTHER, AND WHO HAS BEEN PAYING CHILD SUPPORT PURSUANT TO A COURT ORDER THAT MADE NO FINDING OF PATERNITY, MAY DENY PATERNITY MANY YEARS AFTER SAID COURT ORDER WAS ENTERED, IF HE LEARNS THROUGH GENETIC TESTING THAT HE IS NOT THE BIOLOGICAL FATHER?

Affirmed.

PATTERSON, C.J., Concurs.

ALTENBERND, J., dissents with opinion.

ALTENBERND, Judge, Dissenting.

I realize that the majority feels compelled to make this decision due to the holding in Daniel v. Daniel, 695 So.2d 1253 (Fla.1997). Although I concur in the decision to certify a question to the supreme court in this case, I must dissent as to the outcome. M.L.S. acknowledged his status as the legal father of I.S. many years ago. He should be estopped to deny his obligations as legal father. This is particularly true when his allegations do not identify a putative biological father to whom the courts might shift his status as legal father.

Even if M.L.S. were not estopped to challenge his status as legal father, I believe that he has neither alleged a proper basis nor presented evidence sufficient to terminate his status as the legal father of this thirteen-year-old child. This child has lost her right to have a support father in a proceeding in which she did not testify and in which she had no separate representation. To the extent that this outcome appears to hinge exclusively upon her status as an "illegitimate" or nonmarital child, I believe the outcome raises serious concerns about equal protection.

Because of the emergence of accurate DNA testing, our common law system, which provides only "presumptive" fathers, is no longer able to fulfill the needs of children. In an era when a significant percentage of children are born to parents outside the bonds of traditional marriage, both marital and nonmarital children need established legal fathers upon whom they can rely for care and support. Although it may be preferable to select the biological father as the legal father in most cases, the simple truth is that—for many generations —the presumption of legitimacy gave many children legal fathers who were not their biological fathers.

In 1992, the legislature enacted a statute that makes a voluntary acknowledgment of paternity on a birth certificate a legal determination of "paternity." See § 742.10, Fla. Stat. (Supp.1992); ch. 92-138, § 28, Laws of Fla. This statute effectively establishes permanent legal fathers for children born after 1992 under circumstances comparable to this case. I believe that the courts should now use estoppel to give...