Foster v. Whitley
Decision Date | 09 May 1990 |
Parties | Michael David FOSTER v. Garry WHITLEY. Civ. 7427. |
Court | Alabama Court of Civil Appeals |
John F. Porter III of Livingston, Porter & Paulk, Scottsboro, for appellant.
W.W. Haralson, Scottsboro, for appellee.
This is an appeal from a finding of paternity entered in a divorce action.
Kimberly Ann Foster (mother) and Michael David Foster (husband) were married November 2, 1985. On May 17, 1986, some six and one-half months after the marriage, a child, Jessie Danielle Foster, was born.
In July of 1987, both parties filed for divorce, seeking custody of Jessie. On August 28, 1987, Garry Whitley filed a petition to intervene, claiming to be the natural father of Jessie. The trial court granted the petition and ordered blood tests of all parties on the authority of Finkenbinder v. Burton, 452 So.2d 880 (Ala.Civ.App.1984), which holds that a putative father has the right to intervene in a divorce action to establish his paternity of a child.
On February 21, 1989, a hearing was conducted on the question of paternity, and on March 16, 1989, the court issued an order finding that Whitley is the biological father of Jessie. However, following another hearing in August 1989, the trial court granted primary custody to the husband.
The husband appeals the finding that Whitley is the father of Jessie. We reverse.
The dispositive issue is whether Whitley has standing under the Alabama Uniform Parentage Act (UPA), §§ 26-17-1 through -21, Ala.Code 1975 (1986 Repl.Vol.), to commence proceedings to have himself declared the natural father of Jessie.
We must first consider that the UPA provides for the right to intervene to establish paternity for all actions commencing after May 7, 1984, and, therefore, as to that issue, supersedes Finkenbinder and is controlling here.
Section 26-17-5(a) of the UPA describes who may be considered a presumed father and states in pertinent part:
Section 26-17-6(a)-(c) addresses who may bring an action to determine the father and child relationship and provides in pertinent part:
"(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) of section 26-17-5(a)."
We note that a similar question was addressed in Ex parte Presse, 554 So.2d 406 (Ala.1989), wherein the supreme court declared the dispositive issue to be as follows:
Id. at 411 (emphasis supplied).
The court further addressed the question by stating:
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