680 So. 2d 874 | Ala. | 1996
Concurrence Opinion
(concurring in the result).
I dissented in Ex parte W.J., 622 So.2d 358, 364 (Ala.1993), stating:
“Should we hold that the trial court abused its discretion in determining that truth should not be time-barred and ruling that W.J. was not legally responsible to continue to reimburse the state? I think not.
*875 “... In this case, when no memories have faded, no witnesses have disappeared or died, and no evidence has been lost, I cannot hold that the trial court abused its discretion when it refused to sacrifice ‘truth’ on the altar of expediency.”
I do not think that the record contains conflicting evidence regarding the number of blood tests, the results, or the origin and authenticity of the results. I am satisfied from the undisputed evidence that R.D.B. is not the biological father of the child whom he has been ordered to support. Therefore, I am faced with the stand-up problem of whether I can hold that the trial court abused its discretion in this paternity ease, when it followed the established procedural law and turned its back on substantive truth.
In Ex parte Frazier, 562 So.2d 560, 565-66 (Ala.1989), we wrote:
“In Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543 (1965), the Supreme Court of the United States noted:
“ ‘Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function.’
“Later, in Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983), the Court, quoting Justice White’s concurring opinion in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), again acknowledged what has been considered elementary since the days of Blackstone — that ‘[i]t is precisely the function of a judicial proceeding to determine where the truth lies.’ The Court in Bris-coe further noted that courts, in general, have the ability, pursuant to carefully developed procedures, to separate truth from falsity, and that it is extremely important in both criminal and civil cases to accurately resolve the factual disputes between the parties. 460 U.S. at 335, 103 S.Ct. at 1115.”
New scientific tests have been developed to ascertain whether a particular man is the biological father of a certain child. The results of these tests are generally admissible as evidence in the courts of Alabama. Does a man’s failure to avail himself of these tests and to introduce evidence of the results of the tests in a paternity action prohibit him from availing himself of this evidence at a later date and then attempting to stop payment of unaccrued child support payments by presenting this evidence in support of his Rule 60(b)(6) motion? Ordinarily, I would think not.
However, how far does a trial court have to go to protect a man against himself? R.D.B. allowed a default judgment to be taken against him in the paternity action. He was ordered to pay support. He did not appeal and he did not comply with the order. He faded to pay support. A contempt order was entered against him. He did not appeal another adjudication of contempt for nonpayment of child support that was entered against him, and he was incarcerated. R.D.B. then filed a Rule 60(b) motion, seeking relief from the order establishing paternity, and this motion was granted by the juvenile court. The mother appealed to the circuit court. A hearing was set in the circuit court, but R.D.B. failed to appear. After that hearing, the circuit court entered another paternity judgment against R.D.B. He did not appeal from that judgment. Subsequently, R.D.B. filed the Rule 60(b)(6) motion that was denied; this was reversed by a divided Court of Civil Appeals; and that action by the Court of Civil Appeals is the basis of this certiorari review now before this Court. After carefully reviewing the arguments presented in light of the above, I cannot hold that the trial court abused its discretion in this case. Therefore, I concur in the result.
Dissenting Opinion
(dissenting).
This case presents a single question involving an important question of family law: Does Alabama law require a man who has been determined not to be the biological father of a child to be legally responsible for that child? The majority says that “the facts and the procedural posture of this case are exhaustively treated in Judge Thigpen’s dissent to the Court of Civil Appeals’ majority
The holding of the majority of the Court of Civil Appeals is consistent with the provisions of Act No. 94-638, Acts of Alabama 1994, p. 1177, approved April 26, 1994, now codified at § 26-17A-1, Ala.Code 1975):
Ҥ 26-17A-1. Reopening of paternity case.
“(a) Upon petition of the defendant in a paternity proceeding where the defendant has been declared the legal father, the case shall be reopened if there is scientific evidence presented by the defendant that he is not the father. The court shall admit into evidence any scientific test recognized by the court that has been conducted in accordance with established scientific principles or the court may order a blood test, or a Deoxyribose Nucleic Acid test of the mother, father, and child. Whenever the court orders a test and any of the persons to be tested refuse to submit to the test, the fact shall be disclosed at the trial, unless good cause is shown.
“(b) The test shall be made by a qualified expert approved by the court. The expert may be called by the court or any party as a witness to testify to the test results and shall be subject to cross-examination by the parties. The test results may be admitted into evidence. If more than one test is performed and the results are conflicting, none of the test results shall be admissible as evidence of paternity or nonpaternity.
“(c) Compensation of the expert witness shall be paid by the petitioner.
“(d) In the event the child has been adopted the matter of paternity may not be reopened under this chapter.”
The Alabama Legislature adopted this Act overwhelmingly.
Although I was unable to find any legislative history regarding the intent of the Legislature, it appears to me that the Legislature intended to provide that a defendant who has been adjudged to be the father of a child can reopen the case, except where the child has been adopted, by presenting scientific evidence to the contrary.
I recognize that the defendant’s motion for relief in this case was filed on October 14, 1993, before the adoption of Act No. 94-633, but the holding of the Court of Civil Appeals, in my opinion, is consistent with the intent of the Legislature to allow a man to reopen a paternity case, except in case of an adoption, if he has scientific proof that he is not the father of the child. A defendant would not be able, of course, to recoup any amounts paid, or ordered to be paid, before he asks that the case be reopened.
It appears to me that one of the purposes of the statute is to allow a defendant like R.D.B., Jr., to reopen an adjudication of paternity if he has proof, as obviously R.D.B., Jr., has in this case, that he is not the biological father of the child.
In reversing the judgment of the Court of Civil Appeals, the majority of this Court follows the analysis of Judge Thigpen in his dissent, and that is the position that the State Department of Human Resources took on the issue presented here. That analysis and that position would apply the strict rules of res judicata to adjudications of paternity and would saddle R.D.B., Jr., with the legal obligation to support a child that everyone now knows is not his. The majority of the Court of Civil Appeals concluded that R.D.B., Jr., had a meritorious defense. The Legislature, by statute, has established a public policy that is consistent with this position; consequently, I believe that the majority of the judges on the Court of Civil Appeals correctly decided the legal issues in this ease and that their decision is consistent with the public policy of this State to allow a man like R.D.B., Jr., to reopen an adjudication of paternity when he can show that he is not the biological father of the child. See, also, the Court of Civil Appeals’ majority opinion in State ex rel. A.T. v. E.W., [Ms. 2940404, November 17, 1995] — So.2d-(Ala.Civ.App.1995), which reaches a similar conclusion.
HOOPER, C.J., and COOK, J., concur.
. The House and Senate Journals show that only two members of the House, on the bill's third reading, voted against the bill and that not a single senator voted against the bill when it was read for the third time.
. The Act provides that ‘‘[i]n any decree setting aside an order of paternity pursuant to this chapter, there shall be no claim for damages against the court rendering the initial order of paternity nor any reimbursement or recoupment of money or damages against the mother.” § 26-17A-2, Ala.Code 1975.
.The record suggests that R.D.B., Jr., was adjudicated to be the father of the child before he married the child's mother, but he is no longer married to the mother of the child, and his attempt to reopen the paternity issue came in response to a request by the mother that he be required to pay more child support.
Lead Opinion
This Court granted certiorari review to determine whether the Court of Civil Appeals properly reversed the trial court’s denial of a Rule 60(b), Ala.R.Civ.P., motion. See R.D.B., Jr. v. State Dep’t of Human Resources ex rel. R.A.P.B., 680 So.2d 870 (Ala.Civ.App.1994).
Underlying the Rule 60(b) motion for relief from judgment is a 1989 order establishing paternity. The facts and the procedural posture of this case are exhaustively treated in Judge Thigpen’s dissent to the Court of Civil Appeals’ majority opinion. This Court concludes that Judge Thigpen’s analysis set out in his dissent is correct, and we adopt that analysis as our own.
Therefore, the judgment of the Court of Civil Appeals is reversed, and this cause is remanded to that court for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
