A.Ho v. R.J.

347 So.3d 270

A.HO.

v.R.J.

2200047

Court of Civil Appeals of Alabama.

August 6, 2021

Norman Hurst, Montgomery, for appellant.

Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellee.

HANSON, Judge.

This appeal arises from a paternity action commenced in November 2016 by R.J. ("the alleged father"),¹ acting through counsel; in his complaint initiating the action, the alleged father averred that he had "just cause to believe" that he was the father of a minor child, who was designated in the complaint as J.L.Ho. ("the child"),² and sought a determination of the child's paternity and any resulting support obligations, joint legal custody of the child, "standard" visitation with the child, and any other appropriate relief. The complaint was filed in the domestic-relations division of the Montgomery Circuit Court, which, pursuant to local law, sits as the juvenile court in Montgomery County (see M.R.J. v. D.R.B., 17 So. 3d 683, 684 n.1 (Ala. Civ. App. 2009) ), and was assigned to a judge thereof; for that reason, and because the juvenile courts of this state are vested with original jurisdiction to adjudicate parentage under Ala. Code 1975, § 12-15-115(a)(6), we will refer to the trial court as "the juvenile court."

The child's mother, A.Ho. ("the mother"), was not served with a copy of the alleged father's complaint until March 2017, and the mother did not initially retain counsel to represent her. Further, it appears from the record that, notwithstanding an order compelling genetic testing of the child entered in November 2017 by another circuit-court judge during the temporary incapacity of the judge originally assigned to the case (see Ala. Const. 1901 (Off. Recomp.), art. VI, § 159), the mother failed to present the child for testing as required, and she was found in contempt in January 2019 for having violated that order. Thereafter, an attorney representing the mother filed a notice of appearance.

At a hearing on February 5, 2019, after all the parties had been sworn in, counsel for the mother orally moved for the dismissal of the alleged father's action and asserted that the alleged father should be directed to recite the sections of the Alabama Code upon which his action was based; the juvenile court denied the mother's oral motion. Counsel for the alleged father then indicated that a report containing the results of a paternity test had revealed that the child's actual name was J.L.He. rather than J.L.Ho. and suggested that there was a need to "clarify what is the child's last name." When the juvenile-court judge asked "[w]here is the name [He.] coming from," the mother replied "[h]er father," apparently referring to another man, W.He.; after the alleged father had given initial testimony about having undergone genetic testing as to paternity and a copy of the report containing genetic-testing results had been transmitted to the juvenile court, the following colloquy ensued:

"THE COURT: [Counsel for the mother], what do you have to show that [the alleged father] is not the father of this child and, rather, that this person, [W.He.], is?

"[Counsel for the mother]: [W.He.]'s on the birth certificate. He provided financial support for the child. He's held the child out as his own in the community. He has abundant proof. He's been with the child --

"THE COURT: Is he here?

"[Counsel for the mother]: No.

"THE COURT: No. If he's --

"[Counsel for the mother]: But it's their burden, Your Honor. They have to overcome the presumption of the father, and they have to do it by clear and convincing evidence. And I don't see what prior portion of the statute -- because there's three components of the statute that they're alleging that [the alleged father is the legal] father. They might be the biological father. That's all well and good, if they prove that. But that doesn't give them legal rights to the child to go ahead and say we want some visitation. They're going to have to overcome that burden. The burden of proof is on them. They are the ones who are alleging that this child is his.

"[Counsel for the alleged father]: However, Your Honor, the mother did not inform -- and we're not going to argue the case before you right now, but the mother did not inform [the alleged father] of the existence of the child. Furthermore, she was not married to [W.He.] so the presumption of the child is not his.

"THE COURT: Well, and what this Court would also say, [counsel for the mother], is that anybody can sign a birth certificate and anybody can make payments. And so I think that --

"[Counsel for the mother]: I have a case here. It is exactly like our case.

"THE COURT: Okay. It may very well be just like this case, but I'm saying to you anyone can sign a birth certificate. Anyone can make payments in terms of taking care of a child. Anyone can hold the child out as their own, but that does not make him or her the father. And if there are two presumed fathers, as you are asserting to the Court, [W.He.] and [the alleged father], [the alleged father] has the results from the paternity test.

"The Court is going to listen to all of the testimony that is presented and take into evidence any documentary evidence, but I tell you this. Person or persons holding himself out as the father and the person that actually has the results, in my mind, it's not a contest. Okay."

(Emphasis added.)

After counsel for the mother had lodged an objection to the admission into evidence of the genetic-testing report tendered by the alleged father, counsel for the mother further pressed his argument about the existence of a presumption in favor of W.He.:

"[Counsel for the mother]: ... I just want to recite this in regards to our motion to dismiss. In [ Ala. Code 1975, §] 26-17-204, the statute reads in pertinent part as follows: 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. (B), A presumption of paternity is established under this section may be rebutted only by adjudication under Article 6. In the event 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. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man.

"So in this situation, we're arguing in regards to [§ 26-17-]204 that in order for [the alleged father] to do that -- and just because he's the biological [father] does not mean that he ... is able to prevent the presumption under [§ 26-17-]204(a)(5).

"THE COURT: I don't know that's he's trying to prevent -- necessarily prevent the presumption. I think he's here today to offer some proof that he also is a presumed father because he has the results from this [genetic] testing. So then in that code section, the Court is directed to look at both of the presumptions and to make a determination as to which has more weight than the other. I think I addressed that to you before you-all left the courtroom when I said to you, without making a decision on the case, is that anybody can pay child support, anybody can sign the birth certificate and things of that nature. But we're going to go forward. We're going to have a hearing, and the Court is going to make some determination with regard to the issue of paternity.

"[Counsel for the alleged father]: Yes, Your Honor. And if I may add one thing, Your Honor, in response to opposing counsel's statement, that claims that opposing counsel referenced has to be made by the alleged presumed father, in which he has not interpled himself. He's not gone down to pay the fee, has not been [in]serted into this case. Even if he's presented as a witness, he still cannot make that claim until he's in the case as a party.

"THE COURT: All right. Thank you. You want to respond?

"[Counsel for the mother]: Yeah, I disagree with that wholeheartedly because the presumption follows the father [i.e., W.He.]. That's why it's a presumption. If the father meets the threshold presumption, then he [i.e., the alleged father] can't break the family unit, although he might be the biological father. And that's what that case is stating. He can't come in and disrupt what's --

"THE COURT: He's [i.e., the alleged father's] also a presumed father, [counsel for the mother]. And I think that's what you're failing to acknowledge, that in this instance, if the facts are -- or if the allegations are true and as you allege and assert, this Court also has to take into consideration the fact that we have a result from a paternity test that shows that the probability of paternity is 99.995 percent in this matter. So as I said before, [the alleged father] too is a presumed father, and it is the decision of this Court that will make -- that will ultimately decide the issues in this case. Okay? So I agree with [counsel for the alleged father] that the presumption and any right that goes with it has to be borne by the father [i.e., W.He.] and not by the mother in this matter. Okay? So let's go forward."

Counsel for the mother then called W.He. as a witness. W.He. testified that he and the mother had "been together" for 13 years and that they had 2 children together, one of whom he identified as being the child at issue. W.He. added that he had been present at the child's delivery, that his name had been placed on the child's birth certificate, that the child had resided with him since her birth, that she was insured through his public-education health insurance, that he had attended the child's extracurricular activities, and that he had held himself out in the community as the child's father. However, when counsel for the mother sought to elicit information regarding W.He.'s...