C.L.R. v. M.B.M. and R.M.

REL: March 10, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

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_________________________

C.L.R.

v.

M.B.M. and R.M.

Appeal from Marshall Juvenile Court
(CS-22-900023)

MOORE, Judge.

C.L.R. ("the former husband") appeals from a summary judgment

entered by the Marshall Juvenile Court ("the juvenile court") in an action

to establish the paternity of G.M. ("the child"), a child born during the
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marriage of M.B.M. ("the mother") to R.M. ("the current husband"). We

reverse the judgment and remand the case with instructions.

Background and Procedural History

On February 18, 2022, the former husband filed a complaint

requesting that the juvenile court establish his paternity of the child and

render a custody and child-support determination relating to the child.

In the complaint, which named only the mother as the defendant, the

former husband alleged under oath that he and the mother had been

married from September 29, 2014, to January 29, 2015. The former

husband further alleged that the child was conceived by the parties

during their postmarital relationship and was born on April 28, 2021. At

the time of the birth of the child, the mother was married to the current

husband, who was designated as the father of the child on her birth

certificate. The mother informed the former husband that he was

actually the biological father of the child approximately seven months

after the birth of the child. The former husband met the child in

November 2021, and, following that meeting, he had many unsupervised

visits with the child and paid the mother weekly child support.

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On March 18, 2002, the mother filed an answer to the complaint,

denying all the material allegations of the complaint. On March 29, 2022,

the former husband filed a motion for genetic testing. The juvenile court

originally granted that motion on March 30, 2022, but it subsequently set

aside the order granting the motion the next day after the mother

objected. On April 27, 2002, the mother submitted to the juvenile court

an affidavit of the current husband. In his affidavit, the current husband

stated that he and the mother had conceived the child, that he had

married the mother on April 17, 2021, 11 days before the birth of the

child, that the child carried his last name, that he had executed a formal

acknowledgment of paternity of the child at the hospital following the

birth of the child, that he had taken the child into his home, that he was

the presumed father of the child, and that he would persist in his

presumption of paternity until his death.

The former husband responded to the current husband's affidavit

by filing a motion requesting that the juvenile court allow him to amend

the complaint. In his motion, the former husband argued that he could

have the acknowledgment of paternity executed by the current husband

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rescinded through the underlying paternity action. The former husband

agreed that the current husband was a presumed father of the child, but

the former husband asserted that he was also a presumed father of the

child by virtue of his having established a father-child relationship with

the child, having held the child out as his own, having been referred to

as the father of the child in some medical records, and having provided

the child with financial support; he also asserted that was persisting in

his presumption of paternity. The former husband contended that, in the

situation as it existed, the juvenile court should resolve the conflicting

presumptions of paternity and adjudicate which of the two men is the

legal father of the child.

On May 12, 2022, the juvenile court entered an order denying the

request for genetic testing and ordering the former husband to amend

the complaint to add the current husband as a defendant. The order then

states:

"Once added and served, [the current husband] may request
a hearing on the issue of whether or not [the current husband]
has persisted in his paternity of [the child]. If the Court finds
that [the current husband] has persisted in his paternity, the
case shall be dismissed. However, if the Court finds that [the

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current husband] has not persisted in his paternity of [the
child], [genetic testing] shall be ordered at that time."

On May 20, 2022, the former husband amended his complaint to add the

current husband as a defendant and to verify under oath the factual

allegations setting forth his version of the conception of the child and the

establishment of his relationship with the child, who, he said, he had

brought into his home until the mother stopped allowing him to visit with

the child. Additionally, the former husband asserted that the mother had

informed him that the current husband had had a vasectomy before the

conception of the child. The former husband also requested that the

juvenile court rescind the acknowledgment of paternity executed by the

current husband.

On June 9, 2022, the current husband filed an answer denying the

material allegations of the amended complaint and asserting his claim to

the paternity of the child. On August 15, 2022, the mother and the

current husband jointly filed a motion to set the case for trial or, in the

alternative, to dismiss the case. The former husband filed a response to

the motion; the response contained exhibits, including a badge issued by

a local hospital identifying him as a "parent" of the child, text messages
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from the mother acknowledging his paternity of the child and agreeing

to genetic testing, and photographs of him caring for the child. The

former husband also filed his affidavit in which he set forth that, after he

and the mother divorced, they had maintained a relationship and had

conceived the child, a fact that he did not know until November 2021

when he was so informed by the mother, who, he said, also told him that

it was impossible for her to have conceived the child with the current

husband. The former husband attested that, after learning of his

paternity, he had taken the child into his care, had held the child out as

his own natural child, had paid the mother child support, had visited the

child at the hospital, and had taken the child into his own home until

May 25, 2022. The former husband maintained that he was persisting in

his paternity of the child.

On September 21, 2022, the juvenile court conducted a hearing on

the motion to dismiss. At the start of the oral argument, counsel for the

current husband acknowledged that the motion to dismiss was, in

substance, a motion for a summary judgment. The parties then

proceeded to argue the merits of the motion for a summary judgment.

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The juvenile court entered a judgment on September 29, 2022 ("the final

judgment"), providing "[c]ase is hereby dismissed." The former husband

filed a postjudgment motion to alter, amend, or vacate the final judgment

on October 5, 2022. The juvenile court held a hearing on the

postjudgment motion on October 12, 2022; on that same date, before

awaiting a ruling on the postjudgment motion, the former husband filed

a notice of appeal of the final judgment, which notice was held in

abeyance until the date of disposition of the postjudgment motion. See

Rule 4(a)(5), Ala. R. App. P. The notice of appeal became effective on

October 19, 2022, when the postjudgment motion was denied by

operation of law. See Rule 1(B), Ala. R. Juv. P.; and J.J. v. R.R., 159 So.

3d 84, 85 (Ala. Civ. App. 2014) (holding that "CS" cases are governed by

the Alabama Rules of Juvenile Procedure, including Rule 1(B) providing

that a postjudgment motion may be pending for only 14 days unless that

period is extended in accordance with the rule). The juvenile court

purported to enter an order denying the postjudgment motion on

November 7, 2022, but that order was a nullity. See J.S. v. S.W., 702 So.

2d 169, 171 (Ala. Civ. App. 1997).

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Issue

Although the final judgment from which this appeal arises could be

interpreted as granting a motion to dismiss, the final judgment actually

granted the mother and the current husband's motion for a summary

judgment because the juvenile court considered evidence outside of the

pleadings. See Rule 12(b), Ala. R. Civ. P. (providing that, when a court

considers evidence outside of the pleadings when ruling on a motion to

dismiss, the motion is converted into a motion for a summary judgment);

D.K. v. S.M.S., 297 So. 3d 466, 469 (Ala. Civ. App. 2019) (applying the

reasoning underlying Rule 12(b) in a juvenile case). Thus, the issue on

appeal is whether the juvenile court erred in entering the final judgment

against the former husband on his claim to establish the paternity of the

child.

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Standard of Review

An appellate court reviews a summary judgment de novo. S.J.S. v.

B.R., 949 So. 2d 941, 944 (Ala. Civ. App. 2006). A summary judgment

may be entered only "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law." Rule

56(c)(3), Ala. R. Civ. P. The burden is on the party moving for a summary

judgment to make a prima facie showing that he or she is entitled to a

summary judgment by presenting evidence that, if uncontroverted at

trial, would entitle the moving party to a judgment as a matter of law.

See Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999).

Analysis

Section 26-17-204(a)(1), Ala. Code 1975, provides, in pertinent part,

that "[a] man is presumed to be the father of a child if ... (1) he and the

mother of the child are married to each other and the child is born during

the marriage." In this case, the child was born 11 days after the mother

married the current husband, making him a presumed father of the child,

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as acknowledged throughout this litigation by the former husband.

Section 26-17-607(a), Ala. Code 1975, provides, in pertinent part: "If the

presumed father persists in his status as the legal father of a child,

neither the mother nor any other individual may maintain an action to

disprove paternity."

Having been advised through the pleadings and motions of the

parties of the status of the current husband as a presumed father under

§ 26-17-204(a)(1), the juvenile court entered an order on May 12, 2022,

indicating that, once the current husband was added as a defendant in

the paternity proceedings and properly served, the juvenile court would

conduct a hearing to determine whether the current husband was

persisting in his claim to the paternity of the child. The juvenile court

indicated in the May 12, 2022, order that, if the current husband was

persisting in his claim to paternity, it would dismiss the case. The

current husband subsequently appeared in the case and filed a verified

answer in which he indicated that he was persisting in his claim of

paternity of the child, affirming the statement that he had made in his

affidavit that had been submitted to the juvenile court on April 27, 2022.

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In their motion for a summary judgment filed on August 15, 2022,

the mother and the current husband cited the May 12, 2022, order,

referred the juvenile court to the verified answer filed by the current

husband, and requested, among other things, that the juvenile court

dismiss the case on the ground that it was uncontroverted that the

current husband was persisting in his claim of paternity of the child. The

mother and the current husband did not cite any legal authority to

support the dismissal, but it is apparent that they were relying on § 26-

17-607(a).

In Ex parte Kimbrell, 180 So. 3d 30 (Ala. Civ. App. 2015), this court

recognized that, when a child has two or more presumed fathers, § 26-17-

607(a) does not apply. In that case, Amanda Kimbrell married John

Herbert in 1996. In 1997, Amanda left Herbert without divorcing him.

In 2004, she began a relationship with Denny Kimbrell. On February 24,

2006, she gave birth to a child. Denny was named as the father of the

child on the birth certificate and raised the child with Amanda. Denny

and Amanda purported to marry one another seven months after the

birth of the child, but the marriage was invalid because Amanda was still

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married to Herbert. In 2014, Amanda and Denny commenced a divorce

action, which was converted into an annulment action due to the

invalidity of their purported marriage. Denny sought a paternity

determination regarding the child born of his and the mother's

relationship. The Walker Circuit Court determined that Denny was a

presumed father of the child " 'pursuant to Sections 26-17-204(a)(4)(B) &

(C) and 26-17-204(a)(5), Ala. Code 1975,' " 180 So. 3d at 33, who was

persisting in his status as the legal father of that child and that, pursuant

to § 26-17-607(a), Amanda could not dispute his claim. Amanda filed a

petition for the writ of mandamus seeking to have the paternity

determination vacated.

On mandamus review, this court noted that, "[u]nder the unique

facts of this case, it appears that, pursuant to the applicable Alabama

statute, [§ 26-17-204, Ala. Code 1975,] the child had two presumed

fathers." 180 So. 3d at 34. This court emphasized that, when there are

two presumed fathers, § 26-17-204(b), Ala. Code 1975, governs the

determination of which of the two men shall be adjudicated the legal

father. Section 26-17-204(b) provides, in pertinent part: "In the event

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two or more conflicting presumptions arise, that which is founded upon

the weightier considerations of public policy and logic, as evidenced by

the facts, shall control." 1 Amanda asserted that, pursuant to § 26-17-

607(a), Denny could not maintain the paternity action because Herbert

was persisting in his claim of paternity. This court rejected that

argument, concluding that, even if the evidence had shown that Herbert

was persisting in his claim of paternity, that fact alone would not prevent

Denny from maintaining the paternity action because Denny was also a

presumed father who was persisting in his status as the legal father of

the child at issue. This court held that, in circumstances in which two

presumed fathers are persisting in their claims to paternity of a child,

the trial court must apply § 26-17-607(b) to resolve the dispute. This

court recognized that the Walker Circuit Court had cited § 26-17-607(a)

in concluding that Amanda could not dispute Denny's paternity of the

child at issue, but we determined that, in substance, the Walker Circuit

Court had actually, and correctly, applied § 26-17-204(b) by determining

1Section 26-17-607(b), Ala. Code 1975, contains language identical
to the language in § 26-17-204(b); thus, our analysis of § 26-17-204(b)
applies equally to § 26-17-607(b).
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that Denny, who had been the only father the child at issue had ever

known, had a weightier claim to paternity under the circumstances.

In D.I. v. I.G., 262 So. 3d 651, 659 (Ala. Civ. App. 2018), this court,

citing Ex parte Kimbrell, explained that "the field of operation of § 26-17-

204(b)[, Ala. Code 1975,] continues to be, as always, the determination of

the weightier presumption of paternity when the facts yield two or more

potential presumed fathers." (Emphasis added.) Likewise, in Ex parte

A.A., 342 So. 3d 209, 214-15 (Ala. Civ. App. 2021), this court, again

relying on Ex parte Kimbrell, explained that § 26-17-607(a) applies only

to prevent the maintenance of a paternity action when a child has only

one presumed father who persists in his status as the legal father of the

child. When, however, more than one man qualifies as a presumed

father, § 26-17-204(b) requires a juvenile court to allow the paternity

action to proceed for the purpose of determining which of the two

presumed fathers shall be adjudicated the legal father of the child based

on the factors set forth therein. See also H.A.A. v. B.J.J., [Ms. 2200928,

June 10, 2022] ___ So. 3d ___, ___ (Ala. Civ. App. 2022) (recognizing that,

when two men are both presumed fathers, § 26-17-204(b) applies).

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Admittedly, this court has not consistently followed the reasoning in Ex

parte Kimbrell, see, e.g., R.D. v. S.S., 309 So. 3d 146 (Ala. Civ. App. 2020)

(requiring biological father of child at issue to prove that husband of

mother was not persisting in a claim of paternity before allowing

evidentiary proceeding under § 26-17-204(b)); J.O.J. v. R.M., 205 So. 3d

726 (Ala. Civ. App. 2015) (denying appellant an opportunity to prove his

status as a presumed father and to an evidentiary hearing under § 26-

17-204(b) on the ground that the husband of the mother in that case was

persisting in his status as legal father of child at issue), but the weight of

authority provides that, in cases involving two or more presumed fathers,

§ 26-17-204(b) controls and not § 26-17-607(a). Consequently, the fact

that one presumed father persists in his claim of paternity does not

prevent another presumed father from maintaining a paternity action.

In their motion for a summary judgment, the mother and the

current husband presented uncontroverted evidence indicating that the

current husband was a presumed father of the child who was persisting

in his claim to the legal status of the father of the child, but that

uncontroverted evidence does not necessarily entitle them to a dismissal

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of the underlying paternity action as a matter of law. If the former

husband is also a presumed father, under Ex parte Kimbrell and its

progeny, the juvenile court would be required to allow the paternity

action to proceed to conduct an evidentiary hearing and make a paternity

adjudication in accordance with § 26-17-204(b).

The mother and the current husband did not present any evidence

designed to prove that the former husband is not a presumed father of

the child. On the other hand, the former husband maintained that he

should be considered a presumed father of the child under § 26-17-

204(a)(5), Ala. Code 1975, which provides, in pertinent part:

"(a) A man is presumed to be the father of a child if:

"....

"(5) while the child is under the age of
majority, he receives the child into his home and
openly holds out the child as his natural child or
otherwise openly holds out the child as his natural
child and establishes a significant parental
relationship with the child by providing emotional
and financial support for the child ...."

The former husband presented evidence indicating that, after learning of

his biological connection to the child, he had visited with the child

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unsupervised in his home, had publicly acknowledged his paternity of the

child, and had provided the child with care, emotional support, and

financial support. That evidence, which was not disputed by the mother

or the current husband, could establish that the former husband is also

a presumed father of the child. Thus, we hold that the juvenile court

should have afforded the former husband an evidentiary hearing for the

purposes of establishing his status as a presumed father of the child and,

if successful, for litigating whether he or the current husband should be

adjudicated the legal father of the child based on the factors set forth in

§ 26-17-204(b). The juvenile court committed reversible error by

dismissing the case instead of following that procedure.

We find no other valid legal basis in the record for affirming the

summary judgment. See Liberty Nat'l Life Ins. Co. v. University of

Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003)

(permitting an appellate court to "affirm the trial court['s judgment] on

any valid legal ground presented by the record, regardless of whether

that ground was considered, or even if it was rejected, by the trial court").

The mother and the current husband did not assert that they were

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entitled to a judgment as a matter of law based on the status of the

current husband as an acknowledged father. Even if they had, that

argument would not have prevailed. An acknowledgment, in compliance

with the form set forth in § 26-17-302 and § 26-17-312, Ala. Code 1975,2

2Section 26-17-302, Ala. Code 1975, provides:

"(a) An acknowledgment of paternity must:

"(1) be in a record filed with the Alabama
Office of Vital Statistics;

"(2) be signed, and notarized, under penalty
of perjury by the mother and by the man seeking
to establish his paternity;

"(3) state that the child whose paternity is
being acknowledged:

"(A) does not have a presumed
father or the man executing the
acknowledgment is the presumed
father; and

"(B) does not have another
acknowledged or adjudicated father;

"(4) state whether there has been genetic
testing and, if so, that the acknowledging man's
claim of paternity is consistent with the results of
the testing; and

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when executed by both the mother and the acknowledged father is

"considered a legal finding of paternity" of the child when properly filed

with the Alabama Office of Vital Statistics. See § 26-17-305, Ala. Code

1975. The mother and the current husband failed to present any evidence

indicating that the form complied with the applicable statutes, that the

mother had executed the acknowledgment in addition to the current

"(5) state that the signatories understand
that the acknowledgment shall be considered a
legal finding of paternity of the child and that a
challenge to the acknowledgment is permitted only
as provided in this chapter.

"(b) A presumed father may sign an acknowledgment of
paternity which must be notarized."

Section 26-17-312, Ala. Code 1975, provides:

"(a) To facilitate compliance with this article, the
Alabama Department of Human Resources shall prescribe
forms for the acknowledgment of paternity. The affidavit shall
include the Social Security number and current address of
each parent, a listing of the rights and responsibilities of
acknowledging paternity, including the duty to financially
support the child, and instruction for filing the affidavit with
the Office of Vital Statistics.

"(b) A valid acknowledgment of paternity is not affected
by a later modification of the prescribed form."
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husband, or that the acknowledgment had been properly filed, so the

record contains no evidence indicating that the acknowledgment, which,

we note, was not filed with the juvenile court, has any legal effect.

Moreover, the Alabama Uniform Parentage Act, § 26-17-101 et seq., Ala.

Code 1975, does not provide that an acknowledgment of paternity

precludes another man from disproving the paternity of an acknowledged

father. To the contrary, a party that is not a signatory to the

acknowledgment "may maintain a proceeding at any time after the

effective date of the acknowledgment if the court determines that it is in

the best interest of the child." § 26-17-609(b), Ala. Code 1975. Under the

circumstances of this case, we cannot say that the acknowledgment

entitles the mother and the current husband to a judgment as a matter

of law.

Conclusion

For the foregoing reasons, the final judgment entered by the

juvenile court is reversed and the case is remanded to the juvenile court.

On remand, the juvenile court is instructed to vacate the final judgment,

to conduct an evidentiary hearing to determine whether the former

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husband is a presumed father of the child and, if so, whether he or the

current husband should be adjudicated the legal father of the child in

accordance with § 26-17-204(b), and to take such other actions as are

consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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