FLORIDA DEPARTMENT OF REVENUE, vs. JAMES (WILLIE) CUMMINGS

Supreme Court of Florida

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No. SC04-1045

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FLORIDA DEPARTMENT OF REVENUE, et al.,

Petitioners,

vs.

JAMES (WILLIE) CUMMINGS, et al.,

Respondents.

[May 11, 2006]

BELL, J.

We have for review Department of Revenue ex rel. Preston v. Cummings, 871 So. 2d 1055 (Fla. 2d DCA 2004), which expressly and directly conflicts with State Department of Revenue ex rel. Baggs v. Pate, 824 So. 2d 1038 (Fla. 1st DCA 2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue before us is whether a legal father (i.e., a man married to the child's mother at the time of birth) is an indispensable party in a paternity action brought by the State of Florida Department of Revenue under chapter 409, Florida Statutes (2000), to establish that a man other than the legal father is the child's biological father and, as such, is obligated to provide child support.[1] In Cummings, the Second District held that the legal father is an indispensable party to such actions unless the pleading conclusively establishes that the legal father's rights to the child have been divested by some earlier judgment. See 871 So. 2d at 1061-62. For the reasons explained below, we agree with the Second District.

I. Facts

This case arose from six consolidated actions to determine paternity and establish child support.[2] In each case, the State of Florida Department of Revenue (â€