Ex parte Martin By and Through Sarris

• Decision Date: 22 September 1989
• Citation: 565 So.2d 1
• Parties: Ex parte Kailah M. MARTIN, a minor, By and Through her guardian ad litem, Phillip J. SARRIS. (In re In the Matter of the ESTATE OF Raymond V. MARTIN, deceased). Kailah M. MARTIN, a minor, By and Through her guardian ad litem, Phillip J. SARRIS v. Larry F. BURKHIMER, as Executor of the Estate of Raymond V. Martin, deceased. 87-637, 87-694.
• Court: Alabama Supreme Court

Page 1

565 So.2d 1

Ex parte Kailah M. MARTIN, a minor, By and Through her guardian ad litem, Phillip J. SARRIS (In re In the Matter of the ESTATE OF Raymond V. MARTIN, deceased) Kailah M. MARTIN, a minor, By and Through her guardian ad litem, Phillip J. SARRIS v. Larry F. BURKHIMER, as Executor of the Estate of Raymond V. Martin, deceased.

87-637, 87-694.

Supreme Court of Alabama.

Sept. 22, 1989.

Rehearing Denied May 18, 1990.

Phillip J. Sarris, guardian ad litem, Birmingham, for Kailah M. Martin, a minor.

Ann Z. Arnold, guardian ad litem, Birmingham, for Amy Martin, a minor, in support of the appellee.

Leon Ashford, Gary Young, Martha Jane Patton and Curtis Gordon, Birmingham, for respondents.

ON APPLICATION FOR REHEARING

ADAMS, Justice.

The original opinion in this case is withdrawn and the following opinion is substituted therefor. This is an appeal by Kailah M. Martin, through her guardian ad litem, from a determination by the probate court that Raymond Martin, the deceased, was not her father and, therefore, that Kailah was not entitled to any exemptions from his estate. ¹ In contending that Raymond was her father, Kailah also claimed her proportional rights to any recovery resulting from a pending wrongful death suit. She argues that any determination of parentage by the probate court would affect her alleged rights to those benefits. Furthermore, she cites §§ 12-15-30 and 12-15-1(7), Code of Alabama (1975), as support for her contentions that the probate court does not have jurisdiction to determine the issue of paternity and that that issue should be considered by the juvenile division of the district court or the circuit court.

The following facts are pertinent to an understanding of the basis of this litigation.

Raymond V. Martin, the deceased, married Johnnie Walker on March 12, 1982. In April 1982, Johnnie Martin learned that she was pregnant, and Kailah M. Martin was born to her on December 25, 1982. Prior to Kailah's birth, however, Raymond and Johnnie separated and Raymond filed for divorce pursuant to § 30-2-1(a)(10), Code of Alabama (1975), alleging that Johnnie had become pregnant prior to the marriage and without his agency. Raymond's argument that he was not Kailah's father was supported by a laboratory test done in November 1982, to determine whether his semen contained any sperm. The test results revealed no live or dead sperm and was evidence that a vasectomy performed in 1974 had been successful. The divorce was granted on February 25, 1983.

Despite the laboratory results, when Kailah was born, Raymond was listed as her father on her birth certificate. She was also named as his child on his insurance papers. During the divorce proceedings, however, Johnnie admitted to having had sexual relations with another man "on at least one occasion" during the month prior to her wedding. The parties agreed that Raymond was not Kailah's father, and the divorce was granted pursuant to that agreement. No guardian ad litem represented the minor child during the divorce, and it was determined by the court that Raymond would have no visitation rights, and would have no obligation to support the child.

On September 12, 1986, Raymond was killed in an automobile accident. Upon the probate of his will on September 29, 1986, it was discovered that he had bequeathed his estate to Amy Martin, his child from a previous marriage. A claim was filed on behalf of Kailah on February 18, 1987, contending that Raymond was her father and that she, therefore, was entitled to any statutory exemptions, as well as any potential wrongful death benefits recovered as a result of Raymond's death. ²

First, we will address the divorce judgment and its impact on the issues raised in this appeal. The divorce was granted pursuant to § 30-2-1(a)(10), Code of Alabama (1975), which states as follows:

"(a) The circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of the parties, entitled 'In re the marriage of __________ and __________,' for the causes following:

"....

"(10) In favor of the husband, when the wife was pregnant at the time of the marriage, without his knowledge or agency."

There is no question that the divorce judgment operated to dissolve the marriage of Raymond and Johnnie Martin. In addition, that judgment settled their rights vis-a-vis one another. The issue, however, is whether that determination prevented Kailah Martin from later claiming that Raymond was, in fact, her father. We hold that it does not. We also conclude that the divorce judgment did not destroy the usual presumption in a paternity case that a child born to a married woman is the child of the mother's husband.

Although not exactly on point, we consider our holding in Ex parte Snow, 508 So.2d 266 (Ala.1987), to be very persuasive on the issues presently before this Court. In Snow, the issue was

"whether a child [could] bring an action for paternity under the Alabama Uniform Parentage Act, Code 1975, §§ 26-17-1 through -21, when the child's mother had brought an unsuccessful paternity action against the same defendant pursuant to the prior paternity statute, Code 1975, §§ 26-12-1 through -9 (repealed May 7, 1984)."

508 So.2d at 266. In that case, an unsuccessful paternity action instituted by the minor's mother pursuant to the deGraffenreid Act (§§ 26-12-1 through -9 (repealed May 7, 1984)), did not bar the minor from later raising the same issue pursuant to the Alabama Uniform Parentage Act ("AUPA") (§§ 26-17-1 through -21, Code of Alabama (1975)), which was enacted in 1984. Id. at 267. As in the present case, the child was born prior to the enactment of the AUPA and the previous proceeding was likewise pre-AUPA. However, with the enactment of the AUPA, "the class of persons entitled to bring an action to determine the father and child relationship [was expanded], and for the first time [it authorized] such an action by the child. See Code 1975 § 26-17-6." Id. Surely, if we allowed the minor in Snow to re-litigate the exact issue litigated by her mother in a previous lawsuit, then we should permit Kailah Martin to litigate the issue of her paternity, which was not even the central issue of the divorce action. At the time of their divorce, Raymond and Johnnie could have prevented the possibility that Kailah might later raise the issue of her paternity by joining her as a party to the divorce. Then, she would have been represented by a guardian ad litem and any determination of paternity would have been binding upon her as well as upon the Martins.

"In contrast to enforcement of a child's right of a present or past support obligation, the establishment of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic of constitutional rights. To hold a child bound prospectively by a finding of nonpaternity in a divorce action in which the child was not a party would be to allow the conduct of the mother to foreclose the most fundamental right a child possesses in our system of jurisprudence."

Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87, 91 (1979). We agree, and we hold, therefore, that the divorce judgment is not binding on Kailah, because she was not joined as a party or represented by a guardian ad litem.

Because Kailah is entitled to litigate the issue of paternity, we also are...