Ex Parte Martin by and Through Sarris
The original opinion in this case is withdrawn and the following opinion is substituted therefor. This is an appeal by Kailah M. Martin, through her guardian ad litem, from a determination by the probate court that Raymond Martin, the deceased, was not her father and, therefore, that Kailah was not entitled to any exemptions frоm his estate.1 In contending that Raymond was her father, Kailah also claimed her proportional rights to any recovery resulting from a pending wrongful death suit. She argues that any determination of parentage by the probate court would affect her alleged rights to those benefits. Furthermore, she cites
The following facts are pertinent to an understanding of the basis of this litigation.
Raymond V. Martin, the deсeased, married Johnnie Walker on March 12, 1982. In April 1982, Johnnie Martin learned that she was pregnant, and Kailah M. Martin was born to her on December 25, 1982. Prior to Kailah‘s birth, however, Raymond and Johnnie separated аnd Raymond filed for divorce pursuant to
Despite the laboratory results, when Kailah was born, Raymond was listed as her father on her birth certificate. She was also named as his child on his insurance papers. During the divorce proceedings, however, Johnnie admitted to having had sexual relations with another man “on at least one occasion” during the month prior to her wedding. The parties agreed that Raymond was not Kailah‘s father, and the divorce was granted pursuant to that agreement. No guardian ad litem represented the minor child during the divorce, and it was determined by the court that Raymond would have no visitation rights, and would have no obligation to support the child.
On September 12, 1986, Raymond was killed in an automobile accident. Upon the probate of his will on September 29, 1986, it was discovered that he had bequeathеd his estate to Amy Martin, his child from a previous marriage. A claim was filed on behalf of Kailah on February 18, 1987, contending that Raymond was her father and that she, therefore, was entitled to any statutory exemptions, as well as any potential wrongful death benefits recovered as a result of Raymond‘s death.2
First, we will address the divorce judgment and its impact on the issues raised in this appeal. The divorce was granted pursuаnt to
“(a) The circuit court has power to divorce persons from the bonds of matrimony, upon a complaint filed by one of
the parties, entitled ‘In re the marriage of __________ and __________,’ for the causes following:
” . . . .
“(10) In fаvor of the husband, when the wife was pregnant at the time of the marriage, without his knowledge or agency.”
There is no question that the divorce judgment operated to dissolve the marriage of Raymond and Johnniе Martin. In addition, that judgment settled their rights vis-a-vis one another. The issue, however, is whether that determination prevented Kailah Martin from later claiming that Raymond was, in fact, her father. We hold that it does not. We alsо conclude that the divorce judgment did not destroy the usual presumption in a paternity case that a child born to a married woman is the child of the mother‘s husband.
Although not exactly on point, we consider our holding in Ex parte Snow, 508 So.2d 266 (Ala. 1987), to be very persuasive on the issues presently before this Court. In Snow, the issue was
“whether a child [could] bring an action for paternity under the Alabama Uniform Parentage Act, Code 1975,
§§ 26-17-1 through -21 , when the child‘s mother had brought an unsuccessful paternity action against the same defendant pursuant to the prior paternity statute, Code 1975,§§ 26-12-1 through -9 (repealed May 7, 1984).”
508 So.2d at 266. In that case, an unsuccessful paternity action instituted by the minor‘s mother pursuant to the deGraffenreid Act (
“In contrast to enforcement of a child‘s right of a present or past support obligation, the establishment of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic of constitutional rights. To hold a child bound prospectively by a finding of nonpaternity in a divorce action in which the child was not a party would be to allow the conduct of the mother to foreclose the most fundamental right a child possesses in our system of jurisprudence.”
Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87, 91 (1979). We agree, and we hold, therefore, that the divorce judgment is not binding on Kailah, because she was not joined as a party or represented by a guardian ad litem.
Because Kailah is entitled to litigate the issue of paternity, we also are of the opinion that she is entitled to the presumption that a child born to a married woman is the child of her husband. In reaching this conclusion, we must look at
“It is a long-standing rule of the common law, and one frequently recognized in this state, that a child born to a married woman is presumed to be the legitimate offspring of her husband. Carnegie v. Carnegie, 261 Ala. 146, 73 So.2d 556 (1954); Sims v. Birden, 197 Ala. 690, 73 So. 379 (1916).”
Leonard v. Leonard, 360 So.2d 710, 712 (Ala. 1978). In making that statement, we are of the opinion that a proceeding to which the child is not a party should not be able to do away with the presumption of paternity generally afforded children in Kailah‘s situation. But, thе divorce judgment clearly went further than merely doing away with the presumption of paternity. In fact, as stated above,
Finаlly, we will consider whether the determination that Kailah was not Raymond‘s daughter was made in the proper forum. We are of the opinion that it was not and, therefore, the case must be reversed and remаnded for a hearing in the juvenile or family division of the district or circuit court.
The Uniform Parentage Act states as follows:
“(a) The causes of action provided by this chapter shall be brought in the juvenile or family court division of the district or circuit court and wherever used in this chapter the word ‘court’ shall mean the juvenile or family court division of the district or circuit court . . . . ” (Emphasis added.)
Clearly, the case before us falls within the purview of the Uniform Parentage Act. The question, however, is whether the probate court, in the context of handling the estate of Raymond Martin, should have considered Kailah‘s claims or should have transferred them to the juvenile division or family division of the district or circuit court for a determination thereof.
The administrator cites
The judgment of the probate court is hereby reversed and the cause is remanded.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; 87-637, PETITION
HORNSBY, C.J., and MADDOX, JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.