P.N.V. v. State of Wash. on Behalf of T.R.D., 94-01174
| Decision Date | 19 May 1995 |
| Docket Number | No. 94-01174,94-01174 |
| Citation | 654 So.2d 1274 |
| Parties | 20 Fla. L. Weekly D1229 P.N.V., Appellant, v. STATE OF WASHINGTON, on Behalf of T.R.D., Appellee. |
| Court | Florida District Court of Appeals |
P.N.V., pro se.
Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for appellee.
P.N.V., the putative father, appeals an order determining paternity and establishing child support. We reverse the order because P.N.V. timely invoked his right to have the issue of paternity resolved by a circuit court judge or jury, and not upon the recommendation of a child support enforcement hearing officer.
In April 1992, the mother filed a petition for child support under the Uniform Reciprocal Enforcement of Support Act (URESA). See Secs. 88.081-.311, Fla.Stat. (1991). The petition was first filed in the State of Washington, but was referred to the Sixth Judicial Circuit of Florida, as the responding court. In addition to child support, the petition requested a determination of paternity. The mother filed a form affidavit in which she placed an "X" in either a "yes" or "no" box next to various statements that are indicative of the putative father's paternity. The affidavit admits that there is no biological proof of parentage by blood or Human Leukocyte Antigen (HLA) testing.
Before any response was filed by the putative father, the mother moved to set the case for nonjury trial. A child support enforcement hearing officer entered an order setting the case for resolution before the hearing officer pursuant to Florida Rule of Civil Procedure 1.491. The putative father, pro se, filed an "Objection to Referral To General Master." Although the putative father's objection confuses the procedures for a general master under rule 1.490, and those for a hearing officer under rule 1.491, he clearly objected to a determination of paternity by anyone other than a circuit court judge. The record contains no written ruling on this objection by either a circuit court judge or a hearing officer, but P.N.V. attended a hearing at which the hearing officer orally refused to refer the matter to a judge. P.N.V. declined to attend a hearing on paternity before the hearing officer, and the hearing officer entered findings and a recommendation of paternity based exclusively on the form affidavit. The trial court entered judgment on this recommendation on October 27, 1993.
Within ten days of the order, P.N.V. filed a motion which is both a motion to vacate and a motion for rehearing. P.N.V., who is not an attorney, filed both motions because rule 1.491(f) explains that any party affected by such an order may file a motion to vacate the order, and rule 1.530 authorizes a motion for rehearing. Although the drafters of the rules may have intended the procedure in 1.491(f) as a substitute for the procedure in rule 1.530, there is nothing in the rules to preclude the filing of both. On December 17, 1993, the trial court entered an order denying only the motion to vacate and making no reference to the motion for rehearing. Shortly thereafter, P.N.V. renewed his motion for rehearing, and the trial court denied rehearing on January 7, 1994. P.N.V. appealed within thirty days of the order denying rehearing.
The mother moved to dismiss this appeal because it was not filed within thirty days of the denial of the motion to vacate. Initially, we were inclined to agree that P.N.V. had filed a second unauthorized motion for rehearing. It appears, however, that P.N.V.'s initial motion for rehearing was not resolved in the order denying his motion to vacate. Thus, he was entitled to defer his appeal until the trial court had disposed of that post-judgment motion. See Fla.R.App.P. 9.020(g).
An issue of paternity can be resolved in a URESA proceeding. See Sec. 88.235, Fla.Stat. (1993). Nevertheless, chapter 742 is still regarded as the "exclusive remedy" for establishing paternity, even in a URESA proceeding. Kendrick v. Everheart, 390 So.2d 53 (Fla.1980); Sharon v....
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AMEND. TO FL. FAMILY LAW RULES OF PROC.
...L.R. 12.491(e)(3). Second, chapter 742, Florida Statutes (1997), is the exclusive remedy for establishing paternity, P.N.V. v. Washington, 654 So.2d 1274 (Fla. 2d DCA 1995), and provides that any determination of paternity also involves a determination of custody. Section 742.031, Florida S......
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Achumba v. Neustien
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Hinckley v. Department of Revenue
...officer's recommended order. See State, Dep't of Revenue v. Loveday, 659 So.2d 1239, 1240-41 (Fla. 2d DCA 1995); P.N.V. v. Washington, 654 So.2d 1274, 1275 (Fla. 2d DCA 1995). The circuit court stated that it was without jurisdiction to hear the motion to vacate or to modify, and Mr. Hinckl......
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