Opinion
Case No.: 04-22636-CIV-HUCK, Bankr. Case No. 04-13613-BKC-RAM, Adv. Case No. 04-1197-BKC-RAM.
November 4, 2004
ORDER ON MOTION FOR LEAVE TO APPEAL
THIS MATTER is before the Court on Defendant, the Florida Department of Revenue's ("the State"), Notice of Appeal and Motion for Leave to Appeal, filed October 20, 2004. In that Motion, the State requests that this Court permit an interlocutory appeal of the bankruptcy court's Order (1) Granting Florida Department of Revenue's Motion for Intervention; (2) Denying Motion for Rehearing; and (3) Resetting Pretrial Conference and Trial, which was entered on September 17, 2004. The Court has considered the memoranda of the parties, and is otherwise duly advised. Upon consideration, the Court denies the Motion for Leave to Appeal.
Factual Background and Procedural History
In essence, the State's appeal targets the bankruptcy court's decision to require DNA testing which will assist with determining whether child support payments should be discharged through the bankruptcy proceedings. On November 19, 1983, Sarah Mustelier gave birth to twins Ian and Melissa Mustelier. On September 23, 1986, a Default and Final Judgment of Paternity was entered in the Sarasota County Circuit Court against Plaintiff Timothy Hartnett declaring him to be the father of those twins. A child support order was entered on October 6, 1987. On December 9, 1991, Hartnett moved the state court to set aside the September 23, 1986 default judgment and determine that he is not the father of the children, but the Court denied that motion on April 9, 1992, and Hartnett did not appeal. Hartnett signed a consent order to registration of the foreign child support order in Cobb County, Georgia, on October 28, 1999.
On March 12, 2004, Hartnett filed a Chapter 7 bankruptcy petition under case number 04-13613. On May 11, 2004, he also filed an adversary proceeding in the bankruptcy court, case number 04-1197, seeking discharge from child support, alleging that he is not the father of Ian and Melissa Mustelier. With the consent of Sarah Mustelier and her children, DNA tests were conducted to establish whether Hartnett was the father of the children. The negative results of those tests were filed with the adversary bankruptcy proceeding complaint. On June 30, 2004, the Court vacated a Clerk's default against Sarah Mustelier, denied her motion to dismiss or for abstention, and ordered a second DNA testing. The State, which had not been given notice of this case and first heard of it through Defendant Mustelier's counsel, moved to intervene on July 8, 2004, and asked for a rehearing on the motion to dismiss or for abstention. At oral argument on August 31, 2004, the State requested that the bankruptcy court abstain or dismiss the action based on principles of res judicata, equitable estoppel, or the doctrine of full faith and credit based on the state court's previous order finding that Hartnett was the father. On September 17, 2004, the bankruptcy court granted the intervention motion, but denied the motion to dismiss and abstain and ordered the state to administer DNA tests to the children. On September 24, 2004, the State of Florida filed a Notice of Appeal in the bankruptcy court, and, on September 28, 2004, filed a Motion for Leave to Appeal. On September 29, 2004, Hartnett filed a Motion to Dismiss the Appeal in the bankruptcy court, and filed essentially the same memorandum in response to the Motion for Leave to Appeal on October 14, 2004. On October 15, 2004, the bankruptcy court denied the Motion to Dismiss Appeal without prejudice, temporarily stayed its order requiring a DNA test, and forwarded the Motion for Leave to Appeal to this Court for its consideration. After this Court held a hearing on October 21, 2004, the State filed a reply to Hartnett's Opposition on October 25, 2004, and Hartnett filed a sur-reply on October 28, 2004.
Because Hartnett noted that his response to Appellant's Motion for Leave to Appeal was essentially a renewal of the Motion to Dismiss filed in the bankruptcy court, the Court will accept his sur-reply, which he labeled a "Reply," since it is essentially a reply to a motion to dismiss.
Analysis
There is no dispute that the appeal in this matter is of a non-final order in which the bankruptcy court declined to abstain or dismiss the adversary proceeding and ordered DNA testing of the Mustelier children. District courts are authorized to grant leave to hear appeals of interlocutory orders entered by a bankruptcy judge, see 28 U.S.C. § 158(a), but it is clear that such leave should only be granted if there is present one or more of the statutory or judicially created exceptions to the general rule that only final orders are appealable. See, e.g., United States Tr. v. PHM Credit Corp., 99 B.R. 762, 767 (E.D. Mich. 1989) (noting the district courts should allow interlocutory appeals "sparingly, since interlocutory bankruptcy appeals should be the exception, rather than the rule"). "Because [ 28 U.S.C. § 158(a)] does not provide the district court any criteria for determining whether to exercise their discretionary authority to grant leave to appeal, the court[s] look to 28 U.S.C. § 1292(b) which governs discretionary interlocutory appeals from the district courts to the courts of appeals." In re Charter Co., 778 F.2d 617, 620 n. 5 (11th Cir. 1985). In order for a court to grant discretionary review under 28 U.S.C. § 1292(b), a party must demonstrate that "(1) the order presents a controlling question of law (2) over which there is a substantial ground for difference of opinion among courts, and (3) the immediate resolution of the issue would materially advance the ultimate termination of the litigation." In re Celotex Corp., 187 B.R. 746, 749 (M.D. Fla. 1995).In this case, the State of Florida does not argue, nor does the Court find, that the requirements of 28 U.S.C. § 1292(b) are met. The question that the State wants adjudicated turns on the particular facts of this case and on whether res judicata, equitable estoppel, full faith and credit, or some other similar theory justifies abstaining or dismissing the adversary bankruptcy proceeding regarding the question of discharge of child support. As the Eleventh Circuit has noted, "§ 1292(b) appeals were intended for, and should be reserved for, situations in which the [appellate] court . . . can rule on a pure, controlling question of law without having to delve beyond the surface of the record in order to determine the facts." McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004) ("The legal question must be stated at a high enough level of abstraction to lift the question out of the details of the evidence or facts of a particular case and give it general relevance to other cases in the same area of law."). In this case, there is no controlling question of law that can be determined without also determining the facts, and, accordingly, an appeal based on 28 U.S.C. § 1292(b) can be denied on this ground alone. See id. ("The antithesis of a proper § 1292(b) appeal is one that turns on whether there is a genuine issue of fact or whether the [trial] court properly applied settled law to the facts or evidence of a particular case.").
Nonetheless, the State contends that interlocutory appeal should be permitted in this case under the collateral order doctrine. That doctrine, enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is one of a small number of additional grounds for granting an interlocutory appeal that have been formulated by the judiciary. See Charter Co., 778 F.2d at 622 (holding that the collateral order doctrine applies to bankruptcy court orders). "[T]he collateral order doctrine permits review of interlocutory orders that `finally determine a claim separate and independent from the other claims in the action; (2) cannot be reviewed after final judgment because by then effective review will be precluded and rights conferred will be lost; and (3) are too important to be denied review because they present a significant and unresolved question of law.'" In re F.D.R. Hickory House, Inc., 60 F.3d 724, 726 (11th Cir. 1995) (quoting In re Parklane/Atlanta Joint Venture, 927 F.2d 532, 534 (11th Cir. 1991)); see also Celotex, 187 B.R. at 749 ("To fall within the Cohen exception, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment."). "If there is a doubt whether an order is collateral, the matter should be resolved in favor of finding a nonappealable controversy." PHM Credit Corp., 99 B.R. at 765. "Failure of any one of the elements results in the failure of jurisdiction." Celotex, 187 B.R. at 749.
The State argues that the issue that this Court would have to determine on appeal is "whether or not a state court order determining paternity is res judicata to the issue of paternity before the bankruptcy court." It further contends that the first two elements of the collateral order doctrine, conclusive determination of the question and that the issue be separate from the merits, are met in this case. However, without deciding whether those two elements are satisfied, the Court finds that the third element, urgency, is not present in this case. The State asserts that it is present, arguing that the order requiring DNA testing will be effectively unreviewable on appeal from final judgment because it will be impossible to reverse the DNA testing once it has been completed and the results have been revealed. While this may be true, the question formulated by the State, whether the bankruptcy court's denial of the motion to dismiss was in error because the state court paternity order forecloses the bankruptcy court from making a determination on whether Hartnett is the father in deciding whether he can be discharged from his child support obligations, will still be reviewable even after the DNA test is conducted.
The State further contends, however, that the appeal is urgent and that rights will be lost if the DNA testing is conducted because there is a great public policy interest in Florida of not disturbing "parent-child" relationships. The State cites a case for the proposition that DNA testing should not be ordered unless found to be in the best interest of the children. See Dep't of Health Rehab. Servs. v. Privette, 617 So. 2d 305, 307 (Fla. 1993). First, the State overstates the holding of that case, which is factually distinguishable from this one. In that case, the mother was married at the time of conception and her husband was named on the birth certificate as the child's father. As such, the request for a medical test to establish paternity also challenged the child's legitimacy, a status that the child has "a right to maintain . . . both factually and legally if doing so is in their best interests." Id. The paternity challenge also implicated the right of the "legal father who is actively participating in the care and custody of the child" and who has "established a mutually rewarding relationship with the child" to object to having the legitimacy of the child questioned. Id. at 309 n. 3 (further noting that "the same concerns would not apply where the legal father has abandoned the child or otherwise has acted contrary to the child's best interests"). In this case, where the children were born out of wedlock and Hartnett was established as the non-custodial father of the children, none of the dangers raised by Privette of challenging the legitimacy of the children, violating the legal father's rights, or interfering with a father-child relationship is implicated by permitting a DNA test. Moreover, in Privette, the Court did not hold that testing should necessarily be foreclosed, but merely that the trial court had not established sufficient facts or appropriately taken into account the competing rights of the child, the legal father, and the putative father before ordering the testing. Id. at 309-10.
Second, in any event, DNA testing in this case does not run the risk of doing irreparable harm, because a DNA test was already conducted with the consent of Defendant Sarah Mustelier and her two children. That DNA test was negative for paternity, but the bankruptcy court ordered another DNA test due to the State's challenge to the validity of the laboratory that performed the first test. Thus, the second DNA test can only do one of two things: (1) lend support to the state court's prior establishment of paternity or (2) confirm the validity of the first DNA test that was conducted with the consent of all the individuals who would be affected by any revelation that Hartnett is not the father of the Mustelier twins. Thus, the State of Florida's contention that this appeal must be heard now in order to protect the parent-child relationship does not appear well-taken, since the second DNA test will not raise any issues that have not already been raised or establish any new facts for which there is not already some support. To the extent that the children could be harmed if the bankruptcy court decides to discharge Hartnett's child support obligation, there is no urgent reason for the Court to decide that issue before a final, appealable order finding as such is rendered. Accordingly, since the bankruptcy court's interlocutory order denying the motion to dismiss and abstain will not be effectively unreviewable after final judgment, the collateral order doctrine should not be invoked in this instance to permit interlocutory review.
It should be noted that the children involved here are no longer minors, having reached their majority several years ago.
Conclusion
For the foregoing reasons, the Court finds that review of the interlocutory order that is the subject of this appeal is not appropriate at this time, and it is
ORDERED that the Motion for Leave to Appeal is DENIED. All pending motions, including Plaintiff's Request to Expedite Appeal, are denied as moot, and the Clerk shall CLOSE this case.
DONE AND ORDERED.