DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, on behalf: Regina Gardner v. TYLER LONG
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF REVENUE,
NOT FINAL UNTIL TIME EXPIRES TO
CHILD SUPPORT ENFORCEMENT FILE MOTION FOR REHEARING AND
PROGRAM, on behalf of:
DISPOSITION THEREOF IF FILED.
Regina Gardner,
CASE NO. 1D06-925
Petitioner,
v.
TYLER LONG,
Respondent.
______________________________/
Opinion filed June 29, 2006.
Petition for Writ of Certiorari - Original Jurisdiction.
Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General,
Child Support Enforcement, Tallahassee, for Petitioner.
No appearance for Respondent.
PER CURIAM.
In this petition for writ of certiorari, the Department of Revenue (“DOR”) seeks
review of the Division of Administrative Hearing’s (“DOAH”) order directing
Respondent, Mother, and Child to submit to DNA testing to establish paternity even
though Respondent previously signed an acknowledgment of paternity. The hearing
below was conducted under section 409.2563, Florida Statutes (2005). Because the
Administrative Law Judge (ALJ) departed from the essential requirements of law and
an irreparable harm will result, we grant the petition.
After receiving a proposed administrative order from DOR, Respondent timely
requested a hearing by letter. As part of his request, Respondent wrote, “Need DNA
test.” Respondent received no response from DOR regarding circuit court action.
Instead, his case was referred to DOAH and, subsequent to a hearing, DOAH issued
a temporary administrative support order requiring Respondent to pay child support
pending the results of genetic testing, which DOAH also ordered.
We find that neither DOR nor DOAH has jurisdiction to hear or determine
issues of disputed paternity under section 409.2563(2)(b), Florida Statutes (2005).
Mendez v. Dep’t of Revenue, 898 So. 2d 1060 (Fla. 2d DCA 2005). Moreover,
section 409.2563(2)(f), Florida Statutes (2005), makes it clear that DOR must
terminate a pending administrative proceeding and file an action in circuit court when
the non-custodial parent makes a written request for paternity testing.
As the Second District found in Mendez, we find that it was clear that
Respondent was seeking a paternity determination which the administrative court
could not statutorily order; therefore, upon receipt of Respondent’s written request,
DOR was obligated to terminate the administrative proceeding and proceed with this
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action in circuit court. Due to the foregoing, the ALJ departed from the essential
requirements of law when she ordered genetic testing instead of following the proper
procedure under section 409.2563, Florida Statutes (2005). See Allstate Ins. Co. v.
Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003) (explaining that failure of a court to
follow a controlling statute can be a departure from the essential requirements of law
and a basis to grant a petition for certiorari). We find that subjecting Mother and
Child to a potentially intrusive test that is outside the court’s jurisdiction is enough to
constitute irreparable harm.
We, therefore, GRANT the petition for writ of certiorari and QUASH both the
order for genetic testing and the temporary administrative support order.
ALLEN, DAVIS, and THOMAS, JJ., CONCUR.
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