D.F.H. v.

• Citation: 125 So.3d 146
• Decision Date: 19 April 2013
• Docket Number: 2120220.
• Parties: D.F.H. v. J.D.G. and D.A.G.
• Court: Alabama Court of Civil Appeals

125 So.3d 146

D.F.H.

v.J.D.G. and D.A.G.

2120220.

Court of Civil Appeals of Alabama.

April 19, 2013.

Charles R. Jenkins, Opelika, for appellant.

W. Larry Ray, Opelika, for appellee.

THOMPSON, Presiding Judge.

J.D.G. (“the husband”) filed a complaint seeking a divorce from D.A.G. (“the wife”). In his divorce complaint, the husband allegedthat he and the wife had been married since 1996 and that a child (“the child”) had been born of the marriage in 2008. The husband alleged that the wife had informed him that he was not the biological father of the child. The husband sought a divorce on the ground of adultery and, among other things, requested that the trial court order a DNA paternity test. On June 25, 2012, the trial court ordered that the wife, the husband, and the child submit to DNA paternity testing.

After conducting a pendente lite hearing, on July 16, 2012, the trial court entered a pendente lite order pertaining to financial and custody issues while the divorce action was pending. In addition, in that July 16, 2012, order, the trial court specifically found that, although DNA testing had revealed that the husband was not the biological father of the child, the husband was “persisting in his status as the legal father, and, therefore, under § 26–17–607, Ala.Code 1975, he remains the only legal father of this child.”

On July 17, 2012, the wife filed a “motion to reconsider” the July 16, 2012, pendente lite order. In that motion, the wife argued that, because he had sought a determination of the paternity of the child, the husband could no longer persist in his claim that he is the child's father. On July 18, 2012, the trial court entered an order denying the wife's “motion to reconsider,” concluding that the husband's seeking paternity testing was not inconsistent with persisting in his status as the child's legal father and noting that the paternity test also served as evidence on the issue of the wife's adultery.

Thereafter, the wife filed an answer and a counterclaim seeking a divorce. The wife also filed a motion, which the trial court granted, requesting that a guardian ad litem be appointed for the child.

On November 9, 2012, D.F.H. filed a motion seeking to intervene in the divorce action between the wife and the husband. In his motion, D.F.H. alleged that he is the biological father of the child born while the wife and the husband were married, and he sought an adjudication of his paternity. In his motion to intervene, D.F.H. alleged that the husband had acknowledged that D.F.H. was the biological father of the child, and, therefore, D.F.H. argued, the husband had placed the issue of the child's paternity before the court.

The husband objected to D.F.H.'s motion to intervene, contending that he “vigorously persists in his status as the legal father” of the child.

On November 12, 2012, the trial court entered an order in which it denied D.F.H.'s motion to intervene. In that order, the trial court again determined that the husband persisted in his status as the child's legal father and that, therefore, under § 26–17–607, no other person could seek to disprove the husband's paternity of the child. In addition, the trial court stated:

“The court finds that the presumption that [the husband] is the father of the child born of his marriage is among the weightiest of presumptions in the law, and the relationship between [the child and the husband] as daughter and father should not be overcome even if the allegations of [D.F.H.] are true. [D.F.H.] assumed the risk that this very circumstance would occur when he entered into a sexual relationship with [the wife]. While [D.F.H.'s] consequences are substantial, the court does not have the authority to overturn the long-standing law in the area—law which protects innocent children from the mistakes of adults.”

On November 19, 2012, the child's guardian ad litem filed a motion asking the trial court to suspend the husband's visitation. The guardian ad litem stated that he had interviewed the child after the child had made certain statements about bathing with and sleeping naked with the husband. Based on that conversation, the guardian ad litem believed that an investigation should be made into the child's statements.

The trial court conducted an emergency hearing on the guardian ad litem's motion on November 20, 2012. That same day, the trial court entered an order in which it temporarily suspended the husband's visitation with the child pending an investigation by the Department of Human Resources (“DHR”) and another child-services agency. In its November 20, 2012, order, the trial court specifically ordered that “the [husband], the [wife], [D.F.H.], and their families are not to discuss [the concerns raised by the wife and the guardian ad litem regarding the husband's conduct] with the child.” The trial court then stated that it had ordered that the investigation into the guardian ad litem's and the wife's concerns be expedited.

On November 24, 2012, D.F.H. filed a motion asking the trial court to reconsider its November 12, 2012, denial of his motion to intervene. The trial court denied that motion on December 3, 2012.

D.F.H. filed a notice of appeal on December 13, 2012, arguing that the trial court had erred in denying his motion to intervene and that the trial court had violated his right to due process in entering its November 20, 2012, order.

As an initial matter, we note that none of the parties has addressed this court's jurisdiction to consider that part of D.F.H.'s appeal challenging the November 20, 2012, order. D.F.H. has argued that the trial court violated his right to due process by ordering that he could not discuss with the child the concerns raised by the guardian ad litem and into which DHR was conducting an investigation. Specifically, D.F.H. contends that the trial court could not enjoin him, a nonparty to the divorce action, from taking certain action with regard to the child.

The trial court's November 20, 2012, order clearly was an interlocutory order intended to remain in effect while DHR conducted its investigation and while the husband's visitation rights were temporarily suspended. Even assuming D.F.H. was a party to the action such that he could appeal that interlocutory order, such an order will not support an appeal. T.C. v. Mac.M., 96 So.3d 115, 119 (Ala.Civ.App.2011).

However, in his arguments pertaining to the November 20, 2012, order, D.F.H. insists that that part of the November 20, 2012, order prohibiting him from discussing the guardian ad litem's allegations with the young child constitutes an injunction. A nonparty whose conduct has been enjoined by an order of the trial court may appeal the order; therefore, assuming that the challenged aspect of the November 20, 2012, order amounts to an injunction, D.F.H. has standing to appeal that order. Ex parte State Pers. Bd., 45 So.3d 751, 754 (Ala.2010). Assuming, as D.F.H. argues, that the trial court's November 20, 2012, order constituted a preliminary injunction, we conclude that D.F.H. may seek appellate review of that preliminary injunction by way of an appeal. However, such an appeal must be timely filed. “The timely filing of a notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

An appeal of an order granting an injunction must be filed within 14 days. Rule 4(a)(1), Ala. R.App. P.; Momar, Inc. v. Schneider, 823 So.2d 701, 703–04 (Ala.Civ.App.2001). D.F.H.'s appeal of the November 20, 2012, order was filed on December 13, 2012, in excess of 14 days after the entry of the order. Accordingly, insofar as the November 12, 2012, order granted injunctive relief, this court lacks jurisdiction over D.F.H.'s appeal of that order. Rule 2(a)(1), Ala. R.App. P.; Rudd v. Rudd, supra; and Boykin v. International Paper Co., 777 So.2d 149, 151 (Ala.Civ.App.2000). We therefore dismiss that part of D.F.H.'s appeal pertaining to the November 20, 2012, order. Woods v. SunTrust Bank, 81 So.3d 357, 363 (Ala.Civ.App.2011).

However, an order denying a motion to intervene is sufficiently final to support an appeal. Jim Parker Bldg. Co. v. G & S Glass & Supply Co., 69 So.3d 124, 130 (Ala.2011); Jones v. Joines, [Ms. 2110790, Dec. 21, 2012] ––– So.3d ––––, –––– (Ala.Civ.App.2012); Farmers Ins. Exch. v. Raine, 905 So.2d 832, 833 (Ala.Civ.App.2004) (same). This court has held that a postjudgment motion filed after the denial of a motion to intervene tolled the time for appealing the denial of the motion to intervene. R.D.B. v. A.C., 27 So.3d 1283, 1285 (Ala.Civ.App.2009). Accordingly, we conclude that D.F.H. timely appealed the trial court's denial of his motion to intervene in the divorce action between the wife and the husband.

Various provisions of the Alabama Uniform Parentage Act (“AUPA”), § 26–17–101 et seq., Ala.Code 1975, govern this dispute. Under the AUPA, a man is the presumed father of a child born during his marriage to the child's mother. § 26–17–204(a)(1), Ala.Code 1975. Under § 26–17–607(a) of the AUPA, a presumed father “may bring an action to disprove paternity at any time.” However, “[i]f 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.” § 26–17–607(a).

In interpreting the predecessor to § 26–17–607(a), our supreme court held that “[a] man not presumed to be the father, but alleging himself to be the father, may institute an action to have himself declared the father only when the child has no presumed father.” Ex parte C.A.P., 683 So.2d 1010, 1012 (Ala.1996).

D.F.H. argues in his brief on appeal that he was seeking to intervene in the divorce action as a matter of right pursuant to Rule 24(a), Ala. R. Civ. P., and that the trial court erred in refusing to grant his motion to intervene.

“ ‘The standard of review applicable in cases involving a denial of a motion to intervene as of right is whether...