D.D. v. C.L.D.

600 So. 2d 265, 1991 Ala. Civ. App. LEXIS 600
CourtCourt of Civil Appeals of Alabama
DecidedOctober 4, 1991
Docket2900250, 2900378
StatusPublished
Cited by21 cases

This text of 600 So. 2d 265 (D.D. v. C.L.D.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.D. v. C.L.D., 600 So. 2d 265, 1991 Ala. Civ. App. LEXIS 600 (Ala. Ct. App. 1991).

Opinions

THIGPEN, Judge.

This case involves consolidated appeals from judgments entered in a divorce pro[267]*267ceeding and a paternity proceeding. This is the second time these parties have been before this court. See C.L.D. v. D.D., 575 So.2d 1140 (Ala.Civ.App.1991).

Originally, the wife filed an action for divorce against the husband alleging that there were two children born of the marriage. She later amended her complaint to allege that the younger child was not the husband’s child but was fathered by T.K.J. Although the husband does not deny paternity, his pleadings also challenge the paternity of the younger child, and in other actions, he claimed damages from the mother and T.K.J. for, inter alia, conspiring to establish paternity in the husband to collect support for the child from the husband through the divorce proceedings. The issues in these appeals concern only the younger child.

The guardian ad litem, who was appointed to represent the interests of the child, filed an action asking the court to determine the child’s paternity and to direct the adjudicated father to pay a reasonable sum toward the support and maintenance of that minor child as allowed by the Alabama Uniform Parentage Act (AUPA). Ala.Code 1975, § 26-17-1 et seq. The guardian ad litem’s motion to consolidate the paternity action with the pending divorce was granted. Ultimately, the trial court concluded the divorce proceedings by entering its finding that the husband was not the father of the child. At the subsequent paternity hearing, the husband was dismissed as a party by the trial court and T.K.J. was adjudicated the child’s father. The husband appealed the divorce and the paternity judgments, and raised numerous issues.

The husband first asserts that the trial court was without authority to exclude him as the child’s father in the divorce action. He argues that to exclude him as the child’s father in the divorce action has the effect of unnecessarily bastardizing a child, who has a legally presumed father that does not deny paternity. He argues that “Alabama law does not allow the mother of a child with a presumed father by reason of its birth during the marriage to rebut the presumption” and insists that there is no authority entitling a mother to bastardize her child. He maintains that bastardizing a child under these circumstances is not only unnecessary, but, inter alia, is against public policy and destroys the integrity of the traditional family unit. He further argues that dismissing him as a party in the paternity proceeding was improper.

The records in these cases involve extensive pleadings, discovery, arguments, evidence, and testimony from the numerous parties in the consolidated cases. In our thorough and careful review of these voluminous records, we are mindful of the presumption of correctness afforded by the canon regarding conflicting ore tenus evidence. Waid v. Waid, 540 So.2d 764 (Ala.Civ.App.1989); Blankenship v. Blankenship, 534 So.2d 320 (Ala.Civ.App.1988). Absent an abuse of discretion, we are not permitted to substitute our judgment for that of the trial court. Beckwith v. Beckwith, 475 So.2d 575 (Ala.Civ.App.1985).

Whenever the welfare of the child is concerned and the jurisdiction of the court has been invoked, the court has the inherent power to enter an order regarding the child’s custody and support. Dockins v. Dockins, 475 So.2d 571 (Ala.Civ.App.1985). It has long been established that the welfare of the child is the paramount and controlling consideration where a question of custody is involved. Lewis v. Lewis, 257 Ala. 565, 60 So.2d 145 (1952). The matter concerning the paternity of a child born during the marriage is a proper issue in a divorce action, and the presumption that the husband is the child’s father may be rebutted at that time. See Evans v. Evans, 434 So.2d 254 (Ala.Civ.App.1982). This is especially true because a divorce decree which designates a child to be “of the parties” is a paternity determination and precludes the parties from disputing the child’s paternity in the future. Stringer v. Sheffield, 451 So.2d 320 (Ala.Civ.App.1984); See also Soltis v. Soltis, 470 So.2d 1250 (Ala.Civ.App.1985); Julian v. Julian, 402 So.2d 1025 (Ala.Civ.App.1981); Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980). A paternity adjudication in a divorce action, which is necessary for pur[268]*268poses of support and inheritance, is res judicata to the parties in the divorce action, but not binding on the child unless the child is a party. See Ex parte Martin, 565 So.2d 1 (Ala.1989); Ex parte Presse, 554 So.2d 406 (Ala.1989); Collier v. State ex rel Kirk, 454 So.2d 1020 (Ala.Civ.App.1984). In this divorce, one issue properly concerned the younger child’s paternity, and because the child was represented, the paternity determination in the divorce binds the child as well. See Martin, supra.

“One of the strongest and most persuasive presumptions known to the law is that a child born to a married woman is presumed to be the legitimate offspring of the husband_” Anonymous v. Anonymous, 472 So.2d 640, 642 (Ala.Civ.App.1984). There is an extremely heavy burden on one attempting to rebut the presumption that a child born during a marriage is not the child of the husband. Ala.Code 1975, § 26-17-5. See Presse, supra. In order to rebut the presumption, the one attempting the rebuttal must present clear and convincing evidence to show that it is naturally, physically, or scientifically impossible for the husband to be the father. See Leonard v. Leonard, 360 So.2d 710 (Ala.1978); Bishop v. Robinson, 516 So.2d 723 (Ala.Civ.App.1987); Finkenbinder v. Burton, 477 So.2d 459 (Ala.Civ.App.1985); Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App.1984); Underwood v. Underwood, 460 So.2d 1306 (Ala.Civ.App.1984); Ingram v. State, 364 So.2d 329 (Ala.Civ.App.1978).

In the instant case, the child’s guardian ad litem brought an action to determine the child’s paternity, which, once established, would serve to protect the child’s rights to support and maintenance from the father. The husband maintains that the guardian ad litem could not bring such an action because the child was not “illegitimate.” An illegitimate child may be “a child born in wedlock but sired by a man who was not the mother’s husband.” Leonard, supra; State v. Palmer, 439 So.2d 174 (Ala.Civ.App.1983). The determination of paternity may be necessary for the trial court to properly decide the child’s best interest. Soltis, supra; Finkenbinder, supra.

The mother of a child may seek to rebut the strong presumption that her husband is the father of a child born during their marriage. State ex rel. Goodno v. Cobb, 567 So.2d 376 (Ala.Civ.App.1990). In his dissent in Goodno, Judge Robertson relies on Presse to indicate a need to first establish that the husband is not the father of a child born during a marriage before allowing another standing to challenge the child’s paternity. We are mindful of the strong public policy considerations which militate against the bastardization of children; however, in this action, i.e., during the divorce action, both parties and the child, via the guardian ad litem, challenged the presumption that the child is the child of the mother’s husband, thus all are raising the issue of the child’s paternity.

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Bluebook (online)
600 So. 2d 265, 1991 Ala. Civ. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dd-v-cld-alacivapp-1991.