J.O.J. v. R.M.
205 So. 3d 726
Ala. Civ. App.2015Background
- In 2015 J.O.J., the biological father, sued in juvenile court to establish paternity and obtain custody of a child born in 2012 to R.M. while she was married to D.V.
- Under Ala. Code § 26-17-204(a)(1), D.V., as the mother's husband at the time of birth, is a presumed father; J.O.J. contends he also qualifies as a presumed father under § 26-17-204(a)(5) (held out/provided support).
- The mother moved to dismiss, asserting Presse-based standing bars J.O.J. because D.V. persisted in his presumption of paternity under § 26-17-607(a).
- The juvenile court held an ore tenus hearing; D.V. testified he knew he was not the biological father but had participated in prenatal care, birth, financial and caretaking tasks, and that he wished to persist in his status as legal father.
- The juvenile court limited further questioning, dismissed J.O.J.’s action for lack of standing, denied a postjudgment hearing, and this court affirmed.
Issues
| Issue | Plaintiff's Argument (J.O.J.) | Defendant's Argument (D.V./Mother) | Held |
|---|---|---|---|
| Whether J.O.J. had standing to pursue paternity despite mother’s husband being presumed father | J.O.J.: He should be allowed to prove D.V. had not persisted in paternity and that J.O.J. himself was a presumed father under § 26-17-204(a)(5) | Mother/D.V.: Under § 26-17-607(a) and Presse, if the husband persists in presumption, no one may challenge it; D.V. testified he persists | Held: No error — D.V.’s testimony that he persists and evidence of paternal acts meant J.O.J. lacked standing to proceed |
| Whether juvenile court erred by limiting evidence at ore tenus hearing | J.O.J.: Court improperly curtailed questioning and prevented him from presenting evidence that D.V. had acquiesced and that J.O.J. had acted as father | Mother/D.V.: Further inquiry irrelevant once presumed father persists; standing is defeated by D.V.’s insistence on his status | Held: Affirmed — court acted within bounds given D.V.’s testimony of persistence and parental acts |
| Whether, if two presumptions exist, court must weigh competing presumptions (weightier presumption analysis) | J.O.J.: If he qualified under § 26-17-204(a)(5), court should weigh which presumption is weightier per § 26-17-607(b) | Mother/D.V.: Presse and Kimbrell show husband’s presumption is generally weightier when he persists; no basis to displace D.V. here | Held: Court did not err — facts did not support displacing husband's presumption; Presse governs |
| Whether denial of a hearing on postjudgment motion was reversible error | J.O.J.: He was entitled to a hearing on his postjudgment motion | Mother/D.V.: Any error was harmless because underlying denial of evidence was proper | Held: Harmless error — appellate court resolved merits against J.O.J., so lack of postjudgment hearing did not affect substantial rights |
Key Cases Cited
- Ex parte Presse, 554 So.2d 406 (Ala. 1989) (husband’s persistent presumption of paternity bars others from maintaining action to disprove paternity)
- Ex parte Kimbrell, 180 So.3d 30 (Ala. Civ. App. 2015) (as between two presumed fathers courts may apply § 26-17-607(b) to select the presumption founded on weightier public-policy considerations)
- A.S. v. M.W., 100 So.3d 1112 (Ala. Civ. App. 2012) (juvenile court may consider circumstantial evidence of husband’s lack of persistence where husband does not appear)
- W.D.R. v. H.M., 897 So.2d 327 (Ala. Civ. App. 2004) (biological father must be given an evidentiary hearing where record is silent on whether husband persisted in presumption)