The Department of Revenue (DOR) appeals the final order entered sua sponte by the trial court dismissing with prejudice its petition for paternity. We reverse.
DOR filed the paternity petition on behalf of Ms. Jamie Bennett against appellee, Mr. David Miller, asserting that Mr. Miller was the biological father of Ms. Bennett's child. The petition also alleged that Mr. Miller was obligated to provide support for the child. Mr. Miller filed an answer in which he denied the allegations and asserted the defense that at the time of the child's conception he was incapable of consenting to any sexual act because he was under the age of sixteen. Upon review of these pleadings, the trial court entered a sua sponte order dismissing the paternity petition, explaining:
The trial court further determined that Mr. Miller could not be held accountable for the financial support of the child because he was the victim of a sexual battery. The trial court then ruled that, "regardless of actual paternity," there was no cause of action against Mr. Miller because he was fifteen years old at the time the child was conceived. We reverse because there is no legal authority in Florida to support this ruling.
In dismissing the paternity action, the trial court relied upon section 794.011(8)(b), Florida Statutes (1995).
While there are no Florida cases on this issue, courts in other states have reached the same result. In State ex rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993), the Kansas supreme court considered the question of whether a 13-year-old victim of
State ex rel. Hermesmann v. Seyer, 847 P.2d at 1277.
A similar result was reached in In re the Paternity of J.L.H., 149 Wis.2d 349, 441 N.W.2d 273 (App.), rev. denied, ___ Wis.2d ___, 443 N.W.2d 313 (1989), wherein the putative father was 15 years old at the time his 18½-year-old girlfriend conceived a child. As a defense to the paternity action, the putative father relied on a Wisconsin statute which provided that "[a] person under 15 years of age is incapable of consent as a matter of law," but persons 15 to 17 are presumed to be incapable of consent to sexual intercourse. Rejecting the putative father's assertion that he was legally incapable of consent under Wisconsin's statutory rape statute, the court ruled that the Wisconsin statute "pertains to the guilt of a criminal defendant, not to the civil rights or duties of the [putative father]." Id. 441 N.W.2d at 275. As in Hermesmann, the court did not reach the question of whether the defense of actual consent was available to the putative father.
Colorado also confronted this issue in Schierenbeck v. Minor, 148 Colo. 582, 367 P.2d 333 (1961). Although the specific language of the Colorado criminal statute was not included in the opinion, the court did not mince words in addressing the defense of nonage raised by a sixteen-year-old father in a paternity action:
Id. 367 P.2d at 335. We adopt the reasoning expressed in the cases cited above.
We note that the question of whether actual nonconsent may constitute a defense in a paternity action is not before us. As noted above, the petition was dismissed sua sponte as a matter of law before any evidence was presented.
Implications of a paternity adjudication extend well beyond the issue of a father's current ability to pay support. In this regard, paternity adjudications affect the rights of both the biological father and the child. For instance, once paternity is established, the child becomes an heir under Florida's intestacy law. Also, even if little or no support is awarded at the conclusion of the paternity action, support can become available if the father's financial status improves in the future. The rights of the child cannot be permanently foreclosed because his father was a minor at the time of conception.
REVERSED and REMANDED.
DAUKSCH and GRIFFIN, JJ., concur.
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(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:
§ 794.011(8)(b), Fla.Stat. (1995).