D.W. v. J.W.B.
| Decision Date | 09 October 2015 |
| Docket Number | 2140080. |
| Citation | 230 So.3d 763 |
| Court | Alabama Court of Civil Appeals |
| Parties | D.W. v. J.W.B. and J.J.B. |
Scott W. Hunter, Daphne; and Renee E. Thiry of Thiry & Caddell, LLP, Mobile, for appellant.
Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham; and David P. Broome, Mobile, for appellees.
D.W. ("the father"), who is undisputedly the biological father of B.W.B. ("the child"), appeals from a judgment on partial findings entered by the Mobile Probate Court ("the probate court") denying his contest to the adoption of the child by J.W.B. and J.J.B. ("the petitioners") and from a final judgment of the probate court granting the adoption of the child by the petitioners. We affirm the judgment on partial findings in part and reverse it in part. We reverse the final judgment granting the adoption of the child, and we remand the case for further proceedings.
On June 8, 2013, the petitioners filed a petition seeking to adopt the child. On August 16, 2013, the father filed a motion to contest the adoption of the child. On December 17, 2013, the petitioners moved to dismiss the father's contest on the ground that he had failed to register with the Alabama Putative Father Registry within 30 days of the child's birth. After a trial, the probate court entered a judgment on partial findings on October 15, 2014, finding that the father had not been married at common law to J.B. ("the mother"), the mother of the child, and that the father lacked standing to contest the adoption of the child because he is not the presumed father of the child and because he did not register with the Alabama Putative Father Registry.1 That same day, the probate court entered a judgment granting the petitioners' petition to adopt the child. On October 28, 2014, the father filed his notice of appeal challenging both the judgment denying his right to contest the adoption and the judgment granting the adoption.
The father first contends that his consent to the adoption is required because he is the presumed father of the child under Ala.Code 1975, § 26–10A–7(a)(3) a., a part of the Alabama Adoption Code ("the AAC"), Ala.Code 1975, § 26–10A–1 et seq., which provides:
Section 26–10A–7(a)(3) a. has been interpreted to require the consent to the adoption of a child by a presumed father if the child was born during the presumed father's common-law marriage to the mother of the child. See S.J.S. v. B.R. , 949 So.2d 941, 946 n. 4 (Ala.Civ.App.2006) (). The father maintains that the probate court could not approve the adoption petition over his objection because, he says, he and the mother were, in fact, involved in a common-law marriage when the child was born. The probate court determined that the father did not present sufficient evidence to support his claim of a common-law marriage. On appeal, the father maintains that the probate court erred in that regard.
Dyess v. Dyess, 94 So.3d 384, 386–87 (Ala.Civ.App.2012) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), quoting in turn § 6–11–20(b)(4), Ala.Code 1975 ). Whether the proponent of a common-law marriage has proven its elements clearly and convincingly is a question for the fact-finding court. Dyess, supra. If based on oral testimony by live witnesses, findings as to the existence vel non of a common-law marriage will be accorded a presumption of correctness, and a judgment based on those findings will be affirmed unless it is proven to be plainly and palpably wrong. Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala.1992).
The evidence in the record pertinent to this aspect of the appeal is as follows. The father testified that he and the mother had been ceremonially married on January 25, 2011, and had divorced after a hearing that had occurred on May 15, 2012. He testified that a child named L.W. had been born of the marriage on September 1, 2011.
The father testified that he and the mother had reconciled the same day as the hearing in the divorce case. He testified that, after the divorce, the mother had stayed with him at his apartment between four and six nights a week, that she had received her mail at the apartment, and that she had kept personal items and clothing there. The father's sister and sister-in-law also testified that the mother had often stayed at the apartment after the divorce. The mother testified that, after the hearing in the divorce case, she had visited the father at his apartment because he had indicated that he was suicidal. The mother denied that she had spent the night with the father on that occasion, and she testified that she had not spent one night at the father's apartment following the divorce. The mother admitted, however, that she had used the father's apartment to receive mail.
The father and members of his family testified that, following the divorce, the mother had referred to the father as her husband and that the father had referred to the mother as his wife. Several witnesses testified that the mother and the father had been seen together at church softball games subsequent to the divorce. A pastor also testified to having seen the mother and the father at church as a couple, although the pastor acknowledged that unmarried couples also had attended church. The father testified that he had never seen the mother use her maiden name. The mother denied that she had referred to the father as her husband after the divorce. The mother also denied having attended church with the father after the divorce.
The father testified that, on February 20, 2013, he and the mother had filed their income-tax returns for the 2012 tax year as a married couple and that the mother had signed the income-tax returns as his spouse, using his last name and listing her address as the address of the father's apartment. The mother admitted that she had filed a false affidavit indicating that she had not filed a joint income-tax return with the father, but she testified that she had been manipulated into filing that income-tax return. The evidence also shows that the mother had indicated on a Medicaid application that she completed in October 2012 that, at that time, she was married to the father and was living with him. The mother testified that she had misrepresented her marital status and living arrangement to Medicaid at that time. On a March 31, 2013, Medicaid application, the mother had indicated that she was divorced.
The father testified that, in July 2012, he had purchased a ring for the mother because they were working out their differences, that, around Christmas 2012, he had given the mother the ring and had asked her to marry him, and that the mother had agreed. The mother denied that she had received a new wedding ring. The mother and the father applied for a marriage license on March 20, 2013. The mother testified that she had applied for the marriage license under duress. The father testified that he and the mother had spoken to the father's uncle about officiating the wedding but that they had not agreed on a wedding date. The mother testified that she had not informed anyone of the proposed remarriage despite the publication of the issuance of the marriage license in a local newspaper.
The father testified that, following the divorce, he had helped support the mother and L.W. On October 29, 2012, the mother filed a motion seeking to hold the father in contempt for failing to pay child support for L.W. The father did not raise in that action any claim that he and the mother were common-law married. The father testified that the mother had said that she would take care of the contempt action and for the father not to worry about it, but, he said, the mother had not dismissed the action because she had not wanted her parents to be angry. A judgment for a child-support arrearage had eventually been entered in that case.
The father testified that he and the mother were married at common law in September or October 2012, but, he said, he could not determine the exact date the common-law marriage began. He acknowledged, however, that he and the mother had not believed that they needed a mutual agreement to be married at common law and that, if mutual agreement was an element of a common-law marriage, his claim would fail.
We conclude that the probate court received conflicting evidence on whether the mother and the father entered into...
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