Z.W.E. v. L.B.
| Decision Date | 07 February 2020 |
| Docket Number | 2180796 |
| Parties | Z.W.E. v. L.B. |
| Court | Alabama Court of Civil Appeals |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Jackson Juvenile Court
(CS-19-2.01)
Z.W.E., the alleged father ("the alleged father"), appeals from a judgment of the Jackson Juvenile Court ("the juvenile court") dismissing his petition to establish the paternity of the child ("the child") of L.B. ("the mother"),1 in which he also sought shared custody and/or visitation with the child.
The record, which consists of only 34 pages, indicates the following. On November 19, 2018, the alleged father filed the petition, asserting that he was the father of the child who, at that time, had not yet been born. On February 15, 2019, the mother filed a verified motion to dismiss the alleged father's petition. In her motion, the mother asserted that, on November 14, 2018, she had married Z.A.F. ("the husband"). The child was born on December 26, 2018. The child's birth certificate, a copy of which was attached as an exhibit to the motion to dismiss, indicated that the husband was the child's father. The husband's affidavit was also attached to the motion. In the affidavit, the husband testified that he was the father of the child and that he openly held out the child as his "natural child." He alsostated that he "adamantly persist[ed] in [his] status as the legal father" of the child.
After setting forth the applicable law in this matter, the mother argued in her motion that, because the husband persisted in his status as the legal father of the child, his presumption of paternity could not be challenged. Therefore, she said, the alleged father lacked what she referred to as standing and his petition was due to be dismissed.
On April 3, 2019, the alleged father responded to the mother's motion.2 In his unsworn response, the alleged fatherstated that he and the mother had been in a "dating relationship" and had "cohabitated" from February 2018 until August 2018 and that the mother became pregnant during that time. He said that the mother and her family had acknowledged that he was the biological father of the child. He asserted that he and the mother had celebrated a "gender reveal" with family and friends in July 2018. The alleged father said that, in mid-November 2018, the mother began refusing to have any contact with his family or with him, and, therefore, he filed the paternity petition.
In his response to the mother's motion to dismiss, the alleged father stated that, at the February 4, 2019, hearing on the motion to change venue (see note 1, supra), he learned that the mother had married the husband on November 14, 2018. The alleged father stated that the marriage took place after he "had made known his intention to seek DNA testing but four days prior to the filing" of his petition. He claimed that the mother and the husband were in a "dating relationship" for approximately three weeks before they married. He asserted that the husband had been living with another woman until October 2018.
In his response, the alleged father said that, before the child's birth, he had held out the child as his own and had provided financial and emotional support to the mother during her pregnancy. In asking the juvenile court to deny the mother's motion to dismiss, the alleged father stated that he was the biological father of the child and that he "desire[d] to support the child, have a relationship with the child and exercise his parental rights." Additionally, the alleged father argued that the mother's efforts to keep the child from him had violated "his constitutional right to direct and participate in the upbringing of his child."
The record indicates that the juvenile court held a hearing on the mother's motion to dismiss on May 22, 2019. A transcript of that hearing is not included in the record on appeal. We note that, in certifying the adequacy of the record for appeal to this court, the juvenile court stated that "[n]o formal testimony was taken in this matter." On May 23, 2019, the juvenile court entered its judgment dismissing the alleged father's petition. In doing so, the juvenile court found that the mother had been married to the husband for 42 days when the child was born and that, therefore, underAlabama law, the husband is the presumed father of the child. The juvenile court found that the husband had not renounced his presumption of fatherhood and had, in fact, "'adamantly persist[ed]'" in his status as the legal father. Accordingly, the juvenile court determined that the alleged father's petition was due to be dismissed.
On June 6, 2019, the alleged father timely filed a motion to alter, amend, or vacate the judgment. As grounds for his motion, the alleged father maintained, without providing specific examples, that the judgment was "contrary to the evidence," was "contrary to the law," and violated his constitutional right "to direct and participate in the upbringing of his child." In the postjudgment motion, the alleged father did not assert that he had been denied an evidentiary hearing. The alleged father also did not request a hearing on his postjudgment motion. On June 10, 2019, the juvenile court denied that motion. On June 24, 2019, the alleged father appealed from the May 23, 2019, judgment dismissing his petition.
On appeal, the alleged father first contends that the juvenile court erred or abused its discretion in denying hisrequest for an evidentiary hearing. In his response to the mother's motion to dismiss, the alleged father stated that he was entitled to a hearing to present evidence that he had "persisted in his claim to be the legal father." On appeal, he argues that such evidence would have demonstrated that, in addition to the husband, who was the presumed father by virtue of being married to the mother at the time of the child's birth, the alleged father was also a presumed father of the child. Therefore, the alleged father contends that the juvenile court should have weighed those competing presumptions and addressed the petition on its merits.
The juvenile court held a hearing on the mother's motion to dismiss, but, as previously mentioned, there is no transcript of what transpired at that hearing. Therefore, there is nothing in the record to demonstrate that the juvenile court actually "denied" a request for an evidentiary hearing. Furthermore, as mentioned, in his motion to alter, amend, or vacate the judgment, the alleged father did not assert that he had been deprived of an evidentiary hearing.
Cockrell v. Cockrell, 40 So. 3d 712, 716-17 (Ala. Civ. App. 2009). Because the record does not affirmatively indicate that the juvenile court "denied" the alleged father an opportunity to present evidence, this court will not reverse the juvenile court's judgment on that basis.
Additionally, the factual assertions made by the parties in their respective filings were undisputed, and the juvenile court decided this matter on legal grounds. We observe that, in her motion to dismiss, the mother argued that the alleged father lacked what she called "standing," but which, in these circumstances, is more properly referred to as capacity, to bring the action. See Ex parte Presse, 554 So. 2d 406, 418 (Ala. 1989)("[S]o long as the presumed father persists in maintaining his paternal status," no other man has capacity "to challenge the presumed father's parental relationship."); see also C.L.W. v. Madison Cty. Dep't of Human Res., 170 So. 3d 669, 672 (Ala. Civ. App. 2014)(same). Thus, the alleged father is mistaken in his contention that an evidentiaryhearing was necessary for the juvenile court to settle what he said were the "conflicting presumptions" as to who is the child's legal father under the Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala. Code 1975.
The AUPA provides:
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