Pitcairn v. Vowell
| Decision Date | 01 May 1991 |
| Docket Number | No. 90-2743,90-2743 |
| Citation | 16 Fla. L. Weekly 1213,580 So.2d 219 |
| Court | Florida District Court of Appeals |
| Parties | Dwight PITCAIRN, Petitioner, v. Francine VOWELL, Respondent. 580 So.2d 219, 16 Fla. L. Week. 1213 |
George E. Schulz, Jr., and Susan L. Turner of Holland & Knight, Jacksonville, for petitioner.
F. Emory Springfield of Springfield & Gunson, P.A., Gainesville, for respondent.
This is an original proceeding by petition for writ of certiorari to review a circuit court order requiring the petitioner, as the alleged father, to submit to the drawing of blood samples for genetic tissue typing, and other scientific examinations for the purpose of determining his paternity of the respondent's child.
The order under review arose in a civil proceeding initiated by the respondent mother pursuant to chapter 742, Florida Statutes (1989), to establish that petitioner is the father of her child. The complaint alleges that she and petitioner engaged in sexual relations during the three-month period "between March 1988 and May 1988" and that as a result, respondent delivered a child, "born out of wedlock on January 9, 1989." Contending that petitioner is the natural father of the child, respondent seeks child support, hospital and medical expenses incurred for the benefit of the child since birth, insurance to secure payment thereof, and attorney's fees and costs of this suit. Petitioner answered, generally denying the allegations of the complaint, and asserted two affirmative defenses, alleging (1) that "[t]he child was born in wedlock and a presumption exists that the husband of Plaintiff is the biological father of the child" and (2) that respondent had sexual relations with men other than petitioner and one of them fathered the child. In reply, respondent mother alleged having sexual relations with no one other than petitioner "during the time of conception of the child." The child was over 15 months old when the suit was filed. Respondent's husband is not a party to this proceeding.
The circuit court granted respondent's motion to require petitioner to submit to a human leukocyte antigen (HLA) bloodtest or other scientific tests to determine paternity.
Seeking review of this order by certiorari, petitioner argues that it departs from the essential requirements of the law because the order fails to give effect to the presumption of legitimacy of the child's birth by operation of law because of the mother's marriage, fails to require respondent to demonstrate that she and her husband are not estopped from declaring the child illegitimate, and fails to require respondent to rebut the presumption of legitimacy by evidence other than a blood test of petitioner. Since petitioner is relying on the presumption of legitimacy in these proceedings, he contends that respondent has the burden of disproving the child's presumed legitimacy. Petitioner further contends that a blood test of petitioner is inadmissible to rebut that presumption, due to his rights to rely on the legitimacy presumption and to preserve his right to privacy. If required to comply with the order, petitioner argues that he will suffer irreparable injury because the burden of proof in this proceeding will be improperly shifted to him, the results of the blood test may make it statistically impossible for him to disprove respondent's allegations of paternity, and his right to privacy will be irretrievably violated. Also, he argues, respondent failed to demonstrate "good cause" for the examination and intrusion into his privacy.
Respondent contends that the order does not depart from the essential requirements of the law, because there is no clearly established principle of law that requires a mother to disprove her husband is the father of her child born during marriage in order to discover a putative father's blood sample, and that petitioner cites no authority for that purported essential requirement of law. She argues that petitioner's "suggested" essential requirement of law would require every married female plaintiff in a paternity action to involve her husband in the litigation as a party or a witness, regardless of whether she in good faith believed that the husband was the father. Also, she says, petitioner's position, which requires respondent to overcome a presumption that was created to protect the welfare of the child, employs the presumption in a manner that frustrates and prevents the natural mother's efforts to protect her child. Additionally, respondent argues that petitioner fails to show any irreparable or substantial harm resulting from the lower court's order, for the shifting of the burden of proof to him is not "harm" in the sense that he will be unjustly penalized. If the results of the blood tests reveal that petitioner is the father, they raise only a rebuttable presumption that he may attack. Also, she contends, the lower court's order would not violate petitioner's privacy right because he waived any privacy right he had in this matter when he chose to engage in sexual relations with respondent, and the information sought is a highly relevant piece of information from a party with whom respondent engaged in sexual relations.
In reply, petitioner argues the trial court had little more than the pleadings and respondent's answers to interrogatories before it when passing on the motion, and thus respondent has not made out even a prima facie case to support her allegations of paternity against petitioner. Petitioner argues that since the child was born during respondent's present marriage and respondent's husband has been certified as the child's father and has been held out as the child's father, the question of estoppel also must be decided before respondent can be entitled to compel another man to submit to an involuntary physical examination and disprove paternity, citing M.P.S.H. v. D.H., 516 So.2d 1151 (Fla. 4th DCA 1987). Petitioner contends that he is not asserting any "new" legal principle that has no authoritative support, because it is a departure from the essential requirements of law to compel discovery when the law neither requires nor permits such enforced disclosure, citing Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957). He argues that it is a departure from the essential requirements of law to fail to give effect to the presumption of legitimacy, citing Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960), and that the effect of this presumption is that the party relying on it need not produce any other evidence until the adverse party has rebutted the presumption, citing Ehrhardt, Florida Evidence Sec. 302.2 at p. 72 (2d ed.1984). Petitioner further argues that it is a departure from the essential requirements of law to permit a married woman to declare her child illegitimate without a finding that it is in the best interests of the child to do so. Finally, petitioner says, respondent has not articulated any compelling state interest in declaring her child to be illegitimate that is sufficient to overcome petitioner's fundamental constitutional right to be free from the intrusion of an involuntary physical examination, citing In re Guardianship of Estelle M. Browning, 568 So.2d 4 (Fla.1990).
The question before us on a petition for certiorari is whether the trial court's order departs from the essential requirements of law. We agree with the respondent's argument that there is no clearly established principle of law that requires a mother to disprove her husband is the father of her child born during marriage in order to discover a putative father's blood sample.
The issue is not whether the trial court has ruled correctly. The Florida Supreme Court has cautioned that the granting of common law certiorari should be exercised sparingly. Certiorari should be granted only in situations where "there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Combs v. State, 436 So.2d 93, 96 (Fla.1983). We see no "miscarriage of justice" in the order being reviewed. We, therefore, deny the request for the issuance of the writ of certiorari to set aside the trial court's pretrial discovery order.
In the situation before us, a trial court has ordered, as part of the discovery process, that the petitioner submit to a blood test. The proceeding includes allegations that the petitioner was the father of a child born on January 9, 1989, and that he had sexual relations with the mother of the child during the time that the child was conceived. The proceeding was brought to determine the paternity of the child and to obtain support and other benefits for the child. The petitioner has denied being the father of the child. Affirmatively, he has raised as a defense that respondent's husband is presumed to be the father of the child born in wedlock. He further alleged that the respondent had sexual relations with persons other than petitioner, and that one of them is the biological father. The mother's reply to the answer specifically asserts that she had sexual relations with no one other than petitioner during the time of the child's conception. Her interrogatories reflect that the mother married on October 8, 1988, and that her husband's name was listed as the father of the child on the birth certificate. The interrogatories further assert that the mother has consistently maintained that the petitioner was the father of the child, and that petitioner has admitted such to named witnesses. The results of the blood test would undoubtedly aid in the pursuit of truth. It is perfectly reasonable that the blood test be ordered.
There is a strong rebuttable presumption that a child born to a married woman is the child of the woman's husband, and that the presumption exists for the protection of the child. However, we cannot agree that because of that presumption the child's mother must first prove that her husband...
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Department of Health and Rehabilitative Services v. Privette
...of Health & Rehabilitative Services, 585 So.2d 364 (Fla. 2d DCA 1991), based on express and direct conflict with Pitcairn v. Vowell, 580 So.2d 219 (Fla. 1st DCA 1991). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. The Florida Department of Health & Rehabilitative Services (HRS) pursued t......
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Marshek v. Marshek, 91-3562
...in this regard. But the court did not resolve the matter, indicating instead that it was bound by our decision in Pitcairn v. Vowell, 580 So.2d 219 (Fla. 1st DCA 1991), and thereby compelled to order the HLA test. There are several significant distinctions between Pitcairn and the present c......
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Benac v. Bree, s. 91-00892
...has denied standing to a putative father who objected to medical testing procedures designed to determine paternity. Pitcairn v. Vowell, 580 So.2d 219 (Fla. 1st DCA 1991). 1 However, in Privette this court reaffirmed such standing, based on the state constitutional right of privacy. If anyt......
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Privette v. State, Dept. of Health and Rehabilitative Services on Behalf of Sease, 91-00536
...as to paternity. The facts of this case are remarkably similar to those which recently divided our sister court in Pitcairn v. Vowell, 580 So.2d 219 (Fla. 1st DCA 1991). Were we to follow the majority's reasoning in that case our inquiry would proceed no farther, for they hold "that a putat......