Tatum v. Kelley
Decision Date | 20 December 1985 |
Citation | 481 So.2d 1132 |
Parties | John Albert TATUM and Mary Ida Nichols v. Mary Elizabeth Tatum KELLEY. 84-567. |
Court | Alabama Supreme Court |
Julian L. McPhillips, Jr., of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellants.
G. Houston Howard, II, of Howard, Dunn, Howard & Howard, Wetumpka, for appellee.
On April 2, 1943, Preston Tatum married Lillie Mae Byrd while he was in the Army. Eighteen months later, on October 20, 1944, Preston filed for divorce, alleging that Lillie Mae was guilty of adultery and was pregnant with a child not fathered by him. The complaint stated, in pertinent part:
Lillie Mae was served with the complaint on October 23. On November 22, she gave birth to Mary (Mary Elizabeth Tatum Kelley, the intervenor in the present case). The birth certificate designated Preston Tatum as the father. On November 28, affidavits of Gertie Lou Tatum, Gray Tatum, and Dan Tatum were filed in support of the divorce complaint. Each affidavit stated in substantially similar language that Lillie Mae had neither seen nor lived with Preston since the day after their marriage, that Lillie Mae had committed adulterous acts with "divers people," and that Lillie Mae was pregnant when the suit was filed. Gertie Tatum's affidavit also stated that Preston was not the father of Lillie Mae's unborn child. On November 29, Lillie Mae did not appear for trial, and the court issued a pro confesso divorce decree, which states, in pertinent part:
On July 14, 1982, John Albert Tatum and Mary Ida Nichols filed a complaint in the Circuit Court of Autauga County, seeking an order for the sale of 358 acres of real property and a division of the proceeds among the joint owners. They also sought to quiet title in the land. Tatum and Nichols published a notice in the Prattville Progress to determine whether there were any unknown parties claiming an interest in the land.
On June 7, 1983, Mary Elizabeth Tatum Kelley filed an answer to the complaint. The answer stated that her father was Preston Tatum, that he had owned an interest in the property, and that because he had died intestate she was entitled to an interest in the land as his heir. On January 5, 1984, the trial court heard testimony regarding Mary's claim and, on that same day, denied her claim of a right to intervene as a party defendant. Stating that the 1944 divorce decree had determined that Preston was not her father, the court held that Mary was barred from intervening in the present action because of "res judicata or collateral estoppel."
Mary filed a motion to alter, amend, or vacate the judgment, giving the following reasons: (1) she was not bound by the divorce decree because she was not a party to the divorce proceeding and had not been represented by a guardian ad litem; (2) Preston's divorce petition did not request an adjudication or determination of paternity; (3) the divorce decree did not adjudicate or determine paternity; (4) the decree was secured by fraud and perjured testimony; (5) the denial of her intervention deprives her of intestate property interests without due process of law because she was not a party and was not represented in the divorce action; and (6) the evidence offered in the divorce proceeding was insufficient to overcome the presumption that Preston was her father. After hearing arguments, the trial court granted the motion to vacate its earlier order and stated in the subsequent order:
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Gjellum v. City of Birmingham, Ala.
...(3) the parties to both suits are substantially identical; and (4) the same cause of action is present in both suits. Tatum v. Kelley, 481 So.2d 1132, 1135 (Ala.1985); Broughton v. Merchants Nat'l Bank of Mobile, 476 So.2d 97, 101 (Ala.1985). The Circuit Court of Jefferson County is a court......
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...3) the parties to both suits are substantially identical; and 4) the same cause of action is present in both suits." Tatum v. Kelley, 481 So.2d 1132, 1135 (Ala.1985). The doctrine of res judicata will not apply if any one of these elements is missing. Fisher v. Space of Pensacola, Inc., 461......
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Opry South Land Inv. Group, Ltd. v. Price
...or granting a motion to alter, amend, or vacate a judgment unless there has been a manifest abuse of discretion." Tatum v. Kelley, 481 So.2d 1132, 1136 (Ala.1985). Abuse of discretion by a trial court in granting or denying a Rule 59(e) motion is found only where there has been a breach of ......
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State ex rel. T.S.H. v. W.H.
...had denied the pertinent allegation of the wife's divorce complaint. The alleged child of the divorced husband and wife in Tatum v. Kelley, 481 So.2d 1132 (Ala.1985), was held to be entitled to litigate the question of her paternity in an inheritance setting because the child had not been a......