EX PARTE DJB

• Decision Date: 28 March 2003
• Parties: Ex parte D.J.B. (In re D.J.B. v. K.R.B.).
• Court: Alabama Court of Civil Appeals

859 So.2d 445

Ex parte D.J.B.

(In re D.J.B. v. K.R.B.).

2010300.

Court of Civil Appeals of Alabama.

March 28, 2003.

Richard C. Shuleva, Birmingham, for petitioner.

Submitted on petitioner's brief only.

MURDOCK, Judge.

K.R.B. ("the wife") and D.J.B. ("the husband") were married on November 6, 1989. The wife was pregnant when the parties married; she gave birth to a child on March 17, 1990. The parties separated in 1991.

On February 7, 1992, the husband filed a petition for divorce in the St. Clair Circuit Court; the petition stated, in pertinent part, that "[t]here were no children born of this marriage. [The wife] was, however, pregnant with the child of another man when plaintiff married her. A child was born to [the wife] after the marriage of [the] parties, but said child is not the child of the [husband] herein." On February 11, 1992, the wife filed a petition for support against the husband in the St. Clair District Court. In April 1992, the husband successfully moved the circuit court to consolidate the divorce action and the support action.

On May 12, 1992, the parties filed with the court an agreement they had executed in contemplation of divorce that stated, among other things, that the minor child born of the marriage was not the husband's child. Thereafter, on July 10, 1992, the trial court entered a divorce judgment. With regard to the issue of the paternity of the minor child, the judgment stated, in pertinent part:

"THREE: The matter of the paternity of [the minor child] is hereby reserved for further order of this Court.

". . . .

"EIGHT: Pending further order of this Court regarding the paternity of [the minor child], the [husband] shall pay child support to [the wife] for the support and maintenance of the said minor child ... according to the Child Support Guidelines as set forth in Rule 32 of the Alabama Rules of Judicial Administration...."

The record reveals that no further action was taken in this case until some eight and one-half years later, when the husband, on January 22, 2001, filed a pleading entitled a "Petition to Modify,"¹ requesting the trial court to "determine the true parentage of the minor child and [to] terminate [the] child support obligations of [the husband]." On March 7, 2001, the wife filed both a motion to dismiss the husband's petition and an answer to that petition. The motion asserted that the husband had been adjudicated the father of the minor child and that the husband's petition failed to state a claim for which relief could be granted. The answer generally denied the allegations of the husband's petition and also asserted that the petition failed to state a claim upon which relief could be granted. Neither the March 7, 2001, motion, nor the March 7, 2001, answer filed by the wife asserted any affirmative defenses.

With her answer, however, the wife did file counterclaims seeking an increase in child support and a rule nisi. As to the rule nisi request, the wife alleged that the husband had failed and refused to pay "all child support as required," to maintain medical insurance on behalf of the minor child, and to contribute to the payment of medical expenses incurred on behalf of the minor child that were not covered by insurance. We note that in a subsequent filing in the trial court asking the court to reconsider the order from which the husband now appeals, the husband "represent[ed] unto the Court that he has had no contact with the [wife] from the time of the divorce until the beginning of the current year, and that he has only filed his Petition to Modify after he became aware of the [wife's] whereabouts. [The husband] would further aver that he has had no contact with the [minor child] in said time."

A hearing was conducted on May 18, 2001, on the wife's motion to dismiss. The record contains no transcript of that hearing and there is no indication in the record that the trial court received any evidence from the wife in support of her motion to dismiss.

No ruling was made on the wife's motion until August 2001. In an order dated August 15, 2001, the trial court stated:

"The [wife] has filed a Motion to Dismiss the petition on grounds of laches, waiver and estoppel, and the statute of limitations. The Court is of the opinion that the Motion to Dismiss the petition to modify is well taken and it is hereby dismissed."

The trial court's order dated August 15, 2001, bears a stamp indicating that it was "filed" with the St. Clair Circuit Court clerk on August 22, 2001. The record also contains a document titled "Amendment to Answer Adding Affirmative Defenses" in which the wife asserts the affirmative defenses of laches, waiver, estoppel, and statute of limitations. This amendment is also stamped as having been "filed" with the circuit clerk on August 22, 2001.² On September 14, 2001, the husband filed a motion, asking the trial court to reconsider its dismissal of his petition seeking a paternity adjudication and to enter an order requiring the parties and the minor child to submit to genetic testing pursuant to Ala.Code 1975, § 26-17-12. The trial court subsequently entered an order setting both the wife's counterclaim and the husband's motion seeking reconsideration for a hearing on November 19, 2001.

On November 19, 2001, the trial court entered an order on the case action summary sheet denying the husband's motion seeking reconsideration of the August 2001 order. However, there is no indication in the record that the trial court ever disposed of the wife's counterclaim.

The husband attempts to appeal from the trial court's August 2001 order dismissing his motion seeking a paternity determination. However, after reviewing the record, we conclude that there is not a final judgment from which the husband can appeal. The trial court never ruled upon the counterclaim filed by the wife on March 7, 2001. Even if it had, the 1992 divorce judgment reserved the matter of the paternity of the minor child pending further order of the court, and we can find nothing in the record indicating that a paternity adjudication was made at any time after the trial court reserved the issue in the divorce judgment.

"A `final judgment is a "terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants."'" Horton v. Horton, 822 So.2d 431, 433 (Ala. Civ.App.2001) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990)). Although dismissal of an appeal is appropriate when the order appealed from is not a final judgment, see Young v. Sandlin, 703 So.2d 1005 (Ala.Civ.App.1997),

we elect in this case to treat the husband's filing in this court as a petition for a writ of mandamus, seeking relief from the trial court's August 2001 order and the trial court's denial of the husband's motion requesting genetic testing. See Roark v. Bell, 716 So.2d 1245 (Ala.Civ.App.1998); Ex parte Gamble, 709 So.2d...