  Third District Court of Appeal
                                State of Florida

                          Opinion filed December 5, 2018.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                No. 3D18-1902
                    Lower Tribunal Nos. 16-24779 & 18-9851
                              ________________


                  Danay Puebla Llanos and Alan Llanos,
                                    Petitioners,

                                         vs.

                             Karel Santos Huerta,
                                    Respondent.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Joseph I.
Davis, Jr., Judge.

      Feiler & Leach, P.L., and Martin E. Leach, for petitioners.

      Gastesi & Associates, P.A., and Raul Gastesi, Jr., for respondent.

Before LOGUE, SCALES and LUCK, JJ.

      LOGUE, J.

      Danay Puebla Llanos and Alan Llanos, a married couple, petition this Court

for a writ of certiorari quashing two identical orders requiring them to submit their

minor child to a paternity test to determine whether Respondent, Karel Santos
Huerta, is the biological father. For the reasons below, we grant the petition and

quash the orders.

                                       Background

         Mr. Llanos and Ms. Llanos separately filed suit for protection from stalking

against Mr. Santos pursuant to section 741.30, Florida Statutes. After 16 years of

marriage, Mr. and Ms. Llanos separated in 2011. Subsequently, Ms. Llanos and

Mr. Santos entered into a relationship.1 In early 2012, however, Mr. and Ms.

Llanos reconciled and the relationship between Ms. Llanos and Mr. Santos ended.

Meanwhile, Ms. Llanos conceived and gave birth to the child at issue. In 2013, Mr.

Santos filed a petition asserting he was the father of the child, but that petition was

dismissed with prejudice. In his brief in this case, Mr. Santos acknowledges that

the child is the legal child of Mr. Llanos and he does not “seek to alter or re-litigate

that determination.”

         In 2016, Ms. Llanos filed a petition against Mr. Santos for an injunction to

stop Santos from stalking her. See Llanos v. Huerta, Case No. 2016-024779-FC-04

(Fla. 11th Cir. Ct. 2016). Mr. Santos ultimately stipulated to entry of a permanent

injunction ordering him to refrain from stalking Ms. Llanos. Mr. Santos has since

moved to set aside the permanent injunction. Nothing in his motion to set aside has

placed the paternity of the child in controversy.


1   The record is not clear as to the exact time.

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      Subsequently, in 2018, Mr. Llanos filed a separate petition against Mr.

Santos to obtain an injunction against stalking him. See Llanos v. Heurta, Case No.

2018-009851-FC-04 (Fla. 11th Cir. Ct. 2018). Among other things, Mr. Llanos

alleged that Mr. Santos (1) stalked him and his family; (2) wrote threatening letters

to Mr. Llanos, his eldest daughter, and his siblings that contained photographs of

Ms. Llanos which a reasonable person would expect to remain private; and (3)

threatened to send those photos and other private video footage to Mr. Llanos’

employer and neighbors. Nothing in the petition or in Mr. Santos’ response below

expressly placed the paternity of the child in controversy.

      Mr. Santos’ motion to set aside Ms. Llanos’ permanent injunction and Mr.

Llanos’ petition for an injunction against Mr. Santos were consolidated and came

for hearing on August 22, 2018. Before any evidence was heard, the trial court sua

sponte raised questions about the biological paternity of the child. The trial court

explained: “my view of the world is that if Mr. Santos is or has reasonable cause to

believe that he’s the biological father, it may impact his alleged conduct” and

therefore, biological paternity may be relevant to the statutory “definition of

harass” which considers whether the harassing conduct “serve[d] no legitimate

purpose.” In response, Mr. Santos made an ore tenus motion to compel a paternity

test. The trial court granted the motion, entered the two orders at issue, and




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continued both hearings. Mr. and Ms. Llanos timely filed this petition for writ of

certiorari.

                                      Analysis

       To obtain a writ of certiorari, “a party must demonstrate that the contested

order constitutes (1) a departure from the essential requirements of the law, (2)

resulting in material injury for the remainder of the case, (3) that cannot be

corrected on post-judgment appeal.” Damsky v. Univ. of Miami, 152 So. 3d 789,

792 (Fla. 3d DCA 2014). The issue in this case is whether orders compelling a

married couple to submit their child to a paternity test in these circumstances

warrants a writ of certiorari. We hold that it does.

       Under the existing case law, a court must conduct a three-prong test prior to

ordering a party to submit to genetic testing. As this Court has previously

explained, “no party to any family law proceeding is entitled to an order requiring

another party to submit to genetic testing unless (1) the proceedings place paternity

‘in controversy’ and (2) ‘good cause’ exists for the testing.” Flores v. Sanchez, 137

So. 3d 1104, 1107 (Fla. 3d DCA 2014) (quoting Dep’t of Revenue ex rel.

Chambers v. Travis, 971 So. 2d 157, 162 (Fla. 1st DCA 2007)); see also Dep’t of

Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 857–58 (Fla. 4th DCA

1995); Dep’t of Revenue ex rel. Carnley v. Lynch, 53 So. 3d 1154, 1157 (Fla. 1st

DCA 2011).



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      In addition, Florida law has a strong public policy against genetic testing to

establish biological paternity where such testing could overcome the presumption

of legal paternity and legitimacy; therefore, prior to ordering paternity testing, the

trial court must also determine that the testing would be in the child’s best interest.

See Dep’t of Health and Rehab. Servs. v. Privette, 617 So. 2d 305, 307-08 (Fla.

1993); see also Flores, 137 So. 3d at 1108-09 (citing R.S.R. v. A.K., 801 So. 2d

325, 325 (Fla. 1st DCA 2001) (quashing order compelling testing where trial court

failed to consider testing was in child’s best interests); Dep’t of Revenue ex rel.

T.E.P. v. Price, 958 So. 2d 1045, 1046 (Fla. 2d DCA 2007); Hebner v. Barry, 834

So. 2d 305, 306–07 (Fla. 4th DCA 2003); Van Weelde v. Van Weelde, 110 So. 3d

918, 921 (Fla. 2d DCA 2013).

      Here, the trial court departed from the essential requirements of the law

when it entered the underlying orders. In these circumstances, paternity was not in

controversy and proof that Santos or some third party was the biological father

would not provide a legitimate purpose for Mr. Santos’ alleged conduct of stalking

the family, writing threatening letters that contained personal photographs of Ms.

Llanos to her husband and others, threatening to send those photos and other

private video footage to Mr. Llanos’ employer and neighbors, or violating an

existing anti-stalking injunction. Under the same reasoning, the paternity of the




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child is not implicated in Mr. Santos’ motion to set aside the agreed permanent

anti-stalking injunction.

      Good cause cannot be found, either. Paternity was previously raised in a

different proceeding and Mr. Llanos was adjudicated the legal father of the minor

child. That adjudication was not appealed, is final, and res judicata in the absence

of a showing of fraud upon the court, which has not been raised or established in

this case. See Goulbourne, 648 So. 2d at 858 (quashing trial court order requiring

paternity testing because of prior adjudication: “Absent a showing of fraud upon

the court, a paternity order is res judicata on the issue of paternity and re-litigation

of paternity issues would be unauthorized . . . .”).

      In these circumstances, the trial court departed from the essential

requirements of the law resulting in material injury for which there is no adequate

remedy upon post-judgment appeal when it compelled Mr. and Ms. Llanos to

submit their minor child to paternity testing.

      Petition granted; Orders quashed.




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