Miller v. Cowart, 89-01132
| Decision Date | 14 July 1989 |
| Docket Number | No. 89-01132,89-01132 |
| Citation | 14 Fla. L. Weekly 1679,546 So.2d 768 |
| Parties | 14 Fla. L. Weekly 1679 Michelle MILLER and the Florida Department of Health and Rehabilitative Services, Petitioners, v. Michael G. COWART, Respondent. |
| Court | Florida District Court of Appeals |
Harold E. Barker of Carlton & Carlton, P.A., Lakeland, for petitioners.
No appearance by respondent.
This is a petition for writ of certiorari to review an order which granted respondent's oral motion requesting a Human Leukocyte Antigen (HLA) blood test. For the reasons stated below, we grant the petition, quash the order, and remand for further proceedings.
In June 1985, petitioners filed a complaint to determine paternity, naming respondent as the putative father. Respondent was served with a summons and notice of hearing. The trial court's final order, dated October 1, 1985, adjudged respondent the legal and natural father of and imposed a duty to support the minor child. Thus, the court ordered respondent to pay $30 weekly as child support.
Petitioners filed a motion for contempt, dated January 30, 1989, alleging that respondent was in contempt of court for failure to pay child support in the amount of $4,891.60. The trial court entered an order, which is the subject of this petition, reflecting that respondent appeared at the hearing on the motion for contempt, denied paternity, and requested an HLA blood test. The trial court granted the request and ordered respondent, petitioner Miller, and the child to submit to HLA blood testing.
In Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981), two former wives sought review of orders which required them and their children to undergo HLA blood tests. In each case, the former husbands had previously been ordered to provide child support pursuant to final judgments of dissolution of marriage. The former wives had each filed petitions for enforcement of child support. The former husbands then sought HLA blood testing attempting to exclude themselves as fathers of the children. In quashing the trial court's order requiring the former wives and their children to undergo blood testing, this court stated:
If a husband has doubts concerning the paternity of a child born during the marriage, he should raise and resolve that question during the dissolution proceedings. Here, the issue of each child's paternity was resolved in the final judgments of dissolution. Those judgments are res judicata inasmuch as they involved an identity of causes of action and parties and involved the same issue as the husbands now attempt to relitigate. De Weese v. Unick, 102 Cal.App.3d 100, 162 Cal.Rptr. 259 (1980); see Matthews v. Matthews, 133 So.2d 91 (Fla. 2d DCA 1961). Therefore, the final judgments bar any redetermination of the paternity of either child.
Johnson, 395 So.2d at 641. See also State, Department of Health and Rehabilitative Services, Office of Child Support Enforcement, ex rel. Lara v. Lara, 504 So.2d 1 (Fla. 2d DCA 1986) (following Johnson ).
We have also applied the reasoning in Johnson to a case with facts similar to the present matter. In Department of Health and Rehabilitative Services v. Chambers, 472 So.2d...
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