434 So. 2d 257 | Ala. | 1983
Dissenting Opinion
(dissenting).
I would grant the writ and reverse the Court of Civil Appeals’ judgment, 434 So.2d 254, on the authority of Rumlin v. Lewis, 381 So.2d 194 (Ala.1980), and Leonard v. Leonard, 360 So.2d 710 (Ala.1978). The Court of Civil Appeals held that the presumption that the mother’s husband at the time of conception is the child’s father was rebutted by clear and convincing evidence. This evidence consisted, in part, of testimony of the mother and her husband at the time of conception that they had not had sexual relations- at the probable time of conception. The appellate court determined that this testimony was admissible because it tended to show non-access and impossibility of paternity.
This Court rejected similar arguments in Leonard and Rumlin, supra. Under the standard set out in Leonard v. Leonard, supra, the presumption of legitimacy may be rebutted by clear and convincing evidence which tends to show that it is naturally, physically or scientifically impossible for the husband to be the father. In Leonard, we noted that although the mother
SHORES, J., concurs.
Lead Opinion
Writ quashed as improvidently granted.