ex parte Jenkins

Decision Date17 July 1998
Citation723 So.2d 649
PartiesEx parte Willson JENKINS, guardian ad litem for minor child J.B. Ex parte State of Alabama ex rel. C.T.G. (Re State ex rel. C.T.G. v. M.A.B.; and Guardian ad litem for minor child J.B. v. M.A.B.)
CourtAlabama Supreme Court

R. Willson Jenkins of Jester & Jenkins, P.C., Florence, guardian ad litem for petitioner J.B.

J. Coleman Campbell and Lois Brasfield, asst. attys. gen., Department of Human Resources, for petitioner State ex rel. C.T.G.

No brief filed for respondents.

SEE, Justice.

These petitions concern the reopening of a final judgment of paternity. The trial court allowed a man who had previously been adjudicated the father of a child to proffer deoxyribose nucleic acid ("DNA") evidence indicating that he was not the child's biological father. The trial court reopened the judgment of paternity, pursuant to Ala.Code 1975, § 26-17A-1; entered an order finding the previously adjudicated father not to be the child's biological father; and set aside the earlier order requiring him to pay child support. The Court of Civil Appeals affirmed. State ex rel. C.T.G. v. M.A.B., 723 So.2d 644 (Ala. Civ. App.1997). We granted the petitions of the guardian ad litem and the State for certiorari review. We hold that the previously adjudicated father's action was not barred by the statute of limitations; that he is not entitled to relief under § 26-17A-1 because the statute, if applied retroactively, would violate the separation-of-powers principle, but that he may be entitled to relief under Rule 60(b), Ala. R. Civ. P. Therefore, we reverse and remand.

C.T.G. (the mother) and M.A.B. (the previously adjudicated father) were divorced on October 1, 1984. Immediately following her divorce from M.A.B., the mother learned she was pregnant. The child, J.B., was born six and one-half months after the divorce.

In 1985, the State, on behalf of C.T.G., filed a paternity action, asking the court to declare M.A.B. the father. M.A.B. acknowledged paternity. The paternity judgment became final in 1986. The trial court ordered M.A.B. to pay $25 per week in child support.

In December 1995, the State, on behalf of the mother, petitioned for an increase in child support. M.A.B. responded and sought to reopen the 1986 paternity judgment, pursuant to § 26-17A-1 and Rule 60(b), alleging that he had received information that at the time of conception the mother was engaged in a sexual relationship with another man. After a hearing, the court took the matter under advisement. While the ruling was pending, M.A.B had DNA testing performed on himself and on J.B. The test results excluded M.A.B as the biological father of J.B.; M.A.B. notified the trial court of the test results, and the trial court ordered additional testing, over the objections of both the State and the guardian ad litem for J.B. The subsequent testing also indicated that M.A.B. was not the biological father of J.B. In 1996, the trial court reopened the 1986 paternity judgment, pursuant to § 26-17A-1, and then held that M.A.B. was not the father and was not liable for child support. The Court of Civil Appeals affirmed. In their petitions for certiorari review, the State and the guardian ad litem make numerous arguments; those arguments are best understood in the context of the history leading up to the enactment of § 26-17A-1.

I. Background

In 1984, the Alabama Legislature passed the Alabama Uniform Parentage Act. Ala. Acts 1984, Act No. 84-244, p. 375 (codified as amended at Ala.Code 1975, § 26-17-1 to -22). Section 26-17-5(a)(1) creates a presumption of paternity between a man and a child born during the man's marriage to the child's mother or born within 300 days after the termination of the marriage. Section 26-17-5(b) provides that a presumption of paternity can be rebutted in an action by "clear and convincing evidence" that the presumed father is not the biological father.

Until 1994, if an action to establish the existence of a presumed paternity relation had been reduced to a final judgment subject to the principles of res judicata, the presumed father could ask a court to reopen that final judgment only under Rule 60(b), Ala. R. Civ. P. Under Rule 60(b)(6), Alabama courts allowed a previously adjudicated father, who obtained blood test evidence or DNA evidence indicating that he was not the biological father, to reopen a final judgment of paternity. The previously adjudicated father, however, was required to make his motion to reopen the final judgment within a "reasonable time" after discovering reason to doubt his paternity. See, e.g., K.W. v. State ex rel. S.G., 581 So.2d 855 (Ala.Civ.App.1991) (holding that a previously adjudicated father could challenge a 4-year-old paternity judgment because he acted within a "reasonable time" of learning that he might not be the father); Ex parte State ex rel. McKinney, 567 So.2d 366 (Ala.Civ.App.1990) (holding that a previously adjudicated father could challenge a 12-year-old paternity judgment because he challenged it within a "reasonable time" after learning of his sterility). In 1993, however, this Court denied Rule 60(b)(6) relief to a man who challenged a 9-year-old paternity judgment with DNA evidence that showed he was not the biological father. Ex parte W.J., 622 So.2d 358, 360 (Ala.1993). Because the man had had reason to doubt his paternity at the time of the original proceeding, but had failed to act within a "reasonable time," the previous paternity judgment was res judicata. Id. at 362.

In 1994, apparently in reaction to this Court's denial of relief in W.J., supra, on res judicata grounds, the Legislature enacted § 26-17A-1. See City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So.2d 626, 633 (1952) (stating that in attempting to discern the legislative intent of a statute, it is permissible to examine the law as it existed before the statute was enacted). Section 26-17A-1 provides in pertinent part:

"(a) Upon petition of the defendant in a paternity proceeding where the defendant has been declared the legal father, the case shall be reopened if there is scientific evidence presented by the defendant that he is not the father. The court shall admit into evidence any scientific test recognized by the court that has been conducted in accordance with established scientific principles or the court may order a blood test, or a Deoxyribose Nucleic Acid test of the mother, father, and child. Whenever the court orders a test and any of the persons to be tested refuse to submit to the test, the fact shall be disclosed at the trial, unless good cause is shown."

(Emphasis added.)1 Under § 26-17A-1(a), a previously adjudicated father can petition for a reopening of the final judgment of paternity, without regard to the "reasonable time" requirement of Rule 60(b)(6), if he presents scientific evidence indicating that he is in fact not the biological father. Of course, the trial court must determine that the evidence is indeed scientifically valid and therefore reliable. See generally Turner v. State, [Ms. 1952024, January 16, 1998] ___ So.2d ___ (Ala.1998) (discussing the definition of "scientific" evidence).

II. Statute of Limitations

The State contends that the reopening procedure of § 26-17A-1 is not available to M.A.B., because, it argues, the five-year limitations period of § 26-17-6(a), a part of the Alabama Uniform Parentage Act, bars this action to establish the nonexistence of paternity presumed under § 26-17-5(a)(1). We disagree.

Section 26-17-6(a) provides that a mother, a child, or a presumed father may, within five years of the child's birth, bring an action to establish the "existence" of the paternity relationship presumed under § 26-17-5(a)(1). The State contends that the five-year limitations period of § 26-17-6(a) prohibits an action brought by a presumed father to establish the nonexistence of paternity presumed under § 26-17-5(a)(1). A plain reading of § 26-17-6(a) and (b) refutes this contention. Section 26-17-6(a) and (b) provide:

"(a) A child, a child's natural mother, or a man presumed to be the child's father under subdivision (1), (2), or (3) of Section 26-17-5(a), may bring an action within five years of the birth of the child for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26-17-5(a); or
"(b) Any interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) or (6) of Section 26-17-5(a)."

(Emphasis added.)

Section 26-17-6(a) expressly limits to five years after a child's birth an action to declare the "existence" of the father and child relationship presumed under § 26-17-5(a)(1), (2), or (3). Had the Legislature intended the same five-year limitations period to apply to an action to establish the "non-existence" of the relationship, it would have included the term "non-existence" in § 26-17-6(a), as it did in § 26-17-6(b). The choice to exclude the word "non-existence" in § 26-17-6(a) indicates that the Legislature did not intend to impose a strict five-year limitations period on actions brought to challenge a presumption of paternity. See Commonwealth v. O'Brien, 390 Pa. 551, 136 A.2d 451 (1957) (holding that a statute providing for blood testing in "any proceeding to establish paternity" did not authorize blood tests in a proceeding by the putative father to challenge paternity); see generally House v. Cullman County, 593 So.2d 69, 75 (Ala.1992) (stating that a court should not arbitrarily disregard marked differences in terminology, but should infer that material differences in language in different clauses of a statute were not inadvertent).2

III. Separation of Powers

The child's guardian ad litem argues that the legislative command of § 26-17A-1—that trial courts reopen final judgments—impinges on the judicial power to...

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