Orosco v. Rodriguez

376 So.3d 92

Louis Roman OROSCO, Appellant,

v.Miguel A. RODRIGUEZ and Brittany Nicole Diehl, Appellees.

Case No. 6D23-1415

District Court of Appeal of Florida, Sixth District.

December 15, 2023

Appeal from the Circuit Court for Orange County. Diana M. Tennis, Judge. Lower Tribunal No. 2018-DR-011064-O

Andrew T. Windle, of The Windle Family Law Firm, P.A., Orlando, for Appellant.

Joy R. Knight, of The Joy Law Firm, LLC, Winter Park, for Appellee, Miguel A. Rodriguez.

No Appearance for Appellee, Brittany Nicole Diehl.

STARGEL, J.

Appellant, Louis Orosco, appeals the Final Judgment of Paternity adjudicating Miguel Rodriguez, Appellee, to be the legal father of the minor child, M.A.R., and denying the counterpetition filed jointly by Orosco and Brittany Diehl, the mother.¹ We conclude that because a paternity test revealed Rodriguez was not MA.R.’s biological father, he lacked standing to challenge the presumption of legitimacy created by Orosco’s marriage to Diehl. Consequently, we reverse.

Background

Orosco married Diehl in 2008. Diehl conceived a child in late 2012, and M.A.R. was bom in 2013. At the time of conception, Diehl and Orosco had been separated for several years with Orosco living out of state; yet, neither one had filed for divorce. During one of Orosco’s trips to Florida to visit with Diehl’s older child, he and Diehl engaged in sexual intercourse. At that time, Diehl was also in a casual, sexual relationship with Rodriguez, and Rodriguez was unaware of Diehl’s "one-night stand" with Orosco. Once she determined she was pregnant, Diehl informed Rodriguez he was the father of the child. Diehl told Orosco that he was not the father, and he believed her because he and Diehl had engaged in unprotected sex during the course of their marriage without conceiving a child. Orosco also believed he was divorced from Diehl as he executed "divorce papers" upon her request and delivered them to her sometime prior to 2013, but he was unaware Diehl did not initiate divorce proceedings. Rodriguez mistakenly believed that Diehl and Orosco were divorced as well. At the time of birth, Rodriguez signed M.A.R.’s birth certificate and acknowledged paternity. Diehl indicated on the birth certificate application that she was a single woman even though she was still married to Orosco.

At some point, the relationship between Diehl and Rodriguez broke down, and Rodriguez filed a Petition to Determine Paternity on or about August 22, 2018. A paternity test was conducted shortly thereafter, and the results ruled out Rodriguez as the father of M.A.R. Subsequently, Diehl filed a Motion for Joinder of Indispensable Party seeking to add Orosco as a party respondent, claiming she was married to Orosco at the time of conception and the birth of M.A.R. and that he is the legal father. A joint Counterpetition to Determine Paternity and for Related Relief was filed by Diehl and Orosco after a paternity test was conducted and confirmed Orosco as the biological father of M.A.R. Following a trial in the matter, the lower court found there were competing presumptions, and the best interests of the child would be served by establishing paternity in favor of Rodriguez under section 742.10, Florida Statutes (2018). As such, a final judgment was entered finding Rodriguez is M.A.R.’s legal father, and Diehl and Orosco’s counterpetition was denied. This appeal follows.

Analysis

[1, 2] Whether Rodriguez has standing to challenge paternity is reviewed under the de novo standard. See Ransom v. Grant-Van Brocklin, 326 So. 3d 164, 166 (Fla. 3d DCA 2021) ("Standing is a pure question of law and therefore must be reviewed de novo." (citing Sanchez v. Century Everglades, LLC, 946 So. 2d 563, 564 (Fla. 3d DCA 2006))). Further, a trial court’s interpretation and application of a statute is reviewed de novo. McGovern v. Clark, 298 So. 3d 1244, 1248 (Fla. 5th DCA 2020) (citing B.Y. v. Dep’t of Child. & Fams., 887 So. 2d 1253, 1255 (Fla. 2004)).

The trial court found there were competing presumptions of paternity—a presumption in favor of Rodriguez pursuant to section 742.10, and a common law presumption of legitimacy in favor of Orosco as a result of his continuing marriage to Diehl. Finding that Rodriguez was the only meaningful father the child has ever known, the trial court determined that the best interests of the child would be served by establishing him as the child’s legal father.

[3, 4] Section 742.10, titled "Establishment of paternity for children born out of wedlock," reads, in pertinent part as follows:

If an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier.

….

After the 60-day period referred to in subsection (1), a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger, and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment may not be suspended during the challenge, except upon a finding of good cause by the court.

§ 742.10(1), (4) (emphasis added). Although Rodriguez signed the birth certificate and voluntarily acknowledged paternity at the time the child was born in 2013, Diehl was still married to Orosco. A statute must be given its plain and ordinary meaning when its language is clear and unambiguous. Malay v. Seminole Cnty., 264 So. 3d 370, 372 (Fla. 5th DCA 2019). The first sentence of section 742.10 states "this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock." (emphasis added). M.A.R. was not born out of wedlock.²

[5, 6] Even though it was undisputed that Orosco and Diehl were still married, the trial court found that the marriage between Diehl and Orosco was "the least intact marriage possible, short of filing for a divorce." However, section 742.10 does not carve out an exception that would apply to children born during a damaged or failing marriage. Simply put, "[a]n intact marriage has been described as ‘the existence of a marriage without the pendency of divorce proceedings.’ " Nevitt v. Bonomo, 53 So. 3d 1078, 1082 (Fla. 1st DCA 2010) (quoting Lander v. Smith...