Kimbrell v. Kimbrell
180 So. 3d 30
Ala. Civ. App.2015Background
- Mother filed for divorce from Kimbrell; later sought to void their settlement and dismiss divorce claiming her earlier marriage to Jonathan Herbert (in 1996) was never terminated.
- Child was born in 2006; birth certificate names Kimbrell as father; Kimbrell lived with, supported, and held the child as his since birth; parties ceremonially married in Sept. 2006.
- Kimbrell filed a Petition to Determine Paternity (seeking to prove, not disprove, genetic paternity) and later a custody counterclaim; trial occurred Jan. 12, 2015.
- Trial court annulled the marriage to Kimbrell, found Kimbrell to be the child’s presumed father under Ala. Code § 26-17-204(a)(4)(B),(C) and (a)(5), denied genetic testing, and set custody for trial.
- Mother sought mandamus review, arguing Herbert (her prior husband) was the presumptive father because the marriage to Kimbrell was invalid; she submitted only the trial court’s February 10, 2015 order to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in finding Kimbrell a presumed father | Mother: annulment of marriage to Kimbrell restores presumption in favor of Herbert as husband at time of birth, so Kimbrell should not be presumed father | Kimbrell: he meets statutory presumptions (named on birth certificate, supported the child, held child in his home) and persisted in presumption; Herbert did not intervene or establish persistence at trial | Court: affirmed trial court — Kimbrell is a presumed father under §26‑17‑204(a)(4)(B),(C) and (a)(5); mother did not show error |
| Whether Herbert’s presumed paternity persisted so as to bar Kimbrell’s claim | Mother: Herbert’s marriage to her at time of birth creates a persisting presumption that should prevail | Kimbrell: no evidence Herbert sought to persist or intervene; Kimbrell persisted and has stronger factual/policy support | Held: mother failed to submit record evidence that Herbert persisted; even assuming persistence, Kimbrell’s persistence and the child’s relationship to him are weightier under §26‑17‑204(b) |
| Whether mandamus relief is appropriate | Mother: trial court abused discretion by preferring Herbert’s presumption | Kimbrell: mandamus not warranted; trial court’s factual findings supported its ruling | Held: mandamus denied — petitioner did not meet high burden and failed to provide necessary record materials |
| Whether genetic testing was required | Mother: implied challenge to paternity supports testing | Kimbrell: as presumed father who persisted, testing is barred; trial court properly denied testing | Held: trial court properly denied genetic testing under presumption and §26‑17‑607(a) |
Key Cases Cited
- Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala. 2000) (mandamus is an extraordinary remedy with a high burden)
- Ex parte Children’s Hosp. of Alabama, 931 So.2d 1 (Ala. 2005) (standards for mandamus and required elements)
- Ex parte Moore, 642 So.2d 457 (Ala. 1994) (review in mandamus limited to evidence presented to trial court and included in petition record)
- Ex parte Allianz Life Ins. Co. of North America, 25 So.3d 411 (Ala. 2008) (petition for mandamus must include the trial materials needed to evaluate the trial court’s exercise of discretion)