Pg v. Gh

857 So. 2d 823, 2002 WL 1397885
CourtCourt of Civil Appeals of Alabama
DecidedJune 28, 2002
Docket2000815
StatusPublished

This text of 857 So. 2d 823 (Pg v. Gh) 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
Pg v. Gh, 857 So. 2d 823, 2002 WL 1397885 (Ala. Ct. App. 2002).

Opinion

857 So.2d 823 (2002)

P.G. and J.G.
v.
G.H.

2000815.

Court of Civil Appeals of Alabama.

June 28, 2002.
Rehearing Denied November 22, 2002.
Certiorari Denied March 28, 2003.

*824 William W. Tally of Tally & Tally, Scottsboro, for appellants.

W.N. Watson of Watson, Gillis & Carver, P.C., Fort Payne, for appellee.

Alabama Supreme Court 1020399.

MURDOCK, Judge.

P.G. and J.G. appeal from a judgment of the DeKalb Circuit Court determining that G.H. was the biological father of a daughter born to P.G. while she was married to J.G. J.G. and P.G. married in 1986 and were married when the child was born in July 1998; J.G. and P.G. had not separated or divorced at the time of trial, and the child was their only child. G.H. was also married at the time the child was born and he and his wife have two children.

On June 6, 2000, G.H. filed a petition pursuant to the Alabama Uniform Parentage Act ("UPA"), Ala.Code 1975, § 26-17-1 et seq.,[1] requesting that the trial court enter an order declaring him to be the father of P.G.'s child, granting him visitation rights with the child, and establishing the amount of child support he would be required to pay for the benefit of the child. J.G. and P.G. filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss G.H.'s petition. At the hearing on the Rule 12(b)(6) motion, the parties stipulated that J.G. and P.G. were married at the time of the child's birth and that J.G. was listed as the father of the child on the child's birth certificate. The parties also stipulated that a DNA test that P.G. and G.H. had performed on the child without the knowledge of J.G. *825 indicated a 99% probability that G.H. was the biological father of the child. However, J.G. and P.G. persisted in their claim that J.G. was the presumed and legal father of the child, and J.G. and P.G. argued that G.H. had no standing to file an action seeking to establish his paternity of the child. After arguments by the parties' attorneys, the trial court entered an order denying J.G. and P.G.'s Rule 12(b)(6) motion and appointing a guardian ad litem to represent the child for purposes of G.H.'s petition.

The trial court held an ore tenus hearing on G.H.'s petition and entered a judgment on April 12, 2001, determining that G.H. was the father of the child. In its judgment, the trial court stated that J.G. was entitled to assert the presumption that he was the father of the child because the child was born during his marriage to P.G. The trial court specifically determined that J.G. "held himself out to be the father of the ... child and persists that he is the father of said child, despite his testimony of his apparent sterility.[[2]] ... [J.G.] has responsibly and lovingly cared for, supported and parented the ... child as a father."

The trial court further determined that P.G. and G.H. had had an extramarital sexual relationship during a nine-year period ending in April 2000 and that P.G. and G.H. discontinued their relationship on several occasions during that period. The trial court noted that in March 2000 P.G. and G.H. had a paternity test performed without J.G.'s knowledge; that the results of the paternity test were admitted into evidence without objection; that the DNA test results indicated a 99% probability that G.H. was the child's biological father; and that the parties had stipulated that G.H. was the child's biological[3] father. The trial court also determined that before April 2000, and without the knowledge of J.G., P.G. and G.H. arranged for G.H. to visit the child on several occasions.

The trial court concluded that the presumption of paternity in favor of J.G. had been rebutted by clear and convincing evidence and that G.H. was the father of the child. The court awarded joint custody of the child to P.G. and G.H., with primary physical custody being awarded to P.G.; awarded G.H. visitation rights with the child; ordered G.H. to pay $681 per month as his child-support obligation; ordered G.H. to provide medical insurance for the child; and changed the child's name so that the child's last name coincided with that of G.H.

J.G. and P.G. filed a postjudgment motion, which the trial court denied, and they *826 have appealed to this court.[4] The sole issue that J.G. and P.G. have raised on appeal is whether G.H. had standing, pursuant to the UPA, to file a claim to attempt to establish his alleged paternity of the child.

"When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999); see also Hooten v. Hooten, 754 So.2d 634 (Ala.Civ.App.1999). Section 26-17-6 of the UPA states, in pertinent part:

"(a) A child, a child's natural mother, or a man presumed to be the child's father under subdivision (1), (2), or (3) of Section 26-17-5(a), may bring an action at any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26-17-5(a), but for purposes of support, the action shall be brought before the child reaches the age of 19; or
"(b) Any interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) or (6) of Section 26-17-5(a).
"(c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 26-17-5 may be brought by the child, the mother, or personal representative of the child, the public authority chargeable by law with support of the child, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor."

Ala.Code 1975, § 26-17-6 (emphasis added).

Subdivisions (1), (2), and (3) of § 26-17-5(a) provide:

"(a) A man is presumed to be the natural father of a child if any of the following apply:
"(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court.
"(2) Before the child's birth he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and
"a. If the attempted marriage may be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after the termination of the attempted marriage by death, annulment, declaration of invalidity, or divorce; or
"b. If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

"(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law although the attempted *827 marriage is or could be declared invalid, and

"a.

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Bluebook (online)
857 So. 2d 823, 2002 WL 1397885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pg-v-gh-alacivapp-2002.