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

382 So.3d 1249

C.L.R.

v.M.B.M. and R.M.

CL-2022-1069

Court of Civil Appeals of Alabama.

March 10, 2023

Brett Hamock, Albertville, for appellant. Submitted on appellant’s brief only.

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 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 post-marital 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.

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 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 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 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 alle- gations 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 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. 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).

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.

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

[1] 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, 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...