
    Norman J. PRESSE, Jr. v. Lynn C. KOENEMANN and Jean Ann Koenemann.
    Civ. 6311.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1988.
    Rehearing Denied Sept. 14, 1988.
    
      Steven L. Wise of Hardin & Wise, North-port, for appellant.
    C. Delaine Mountain and Barbara W. Mountain, Tuscaloosa, for appellee.
   INGRAM, Judge.

This case concerns the paternity of a child born to a married woman.

The plaintiff, Jean Ann Koenemann (mother), and the defendant, Norman J. Presse, Jr. (Presse), were married in 1973. They lived together as husband and wife until their divorce in 1980. However, prior to their divorce, the mother and Presse moved to Tuscaloosa in 1975, where the mother had an extramarital relationship with Lynn C. Koenemann (Koenemann). The mother testified that she and" Koene-mann were having sexual relations without any form of contraception during the period of the mother’s conception of this minor child. She also testified that she did use a contraceptive device for sexual relations with Presse during this same period. Sometime in 1977, the mother and Presse returned to Louisiana, and a child, namely, Shelly Rene Presse (minor child), was born. As noted above, the mother and Presse were divorced in January 1980. Custody of the minor child was originally awarded to Presse. In March 1980, the mother married Koenemann, and in May 1980, custody of the minor child, approximately age three, was transferred to the mother. The mother, the minor child, and Koenemann have resided together as a family, along with the two other children subsequently born to this marriage.

In 1986, the mother and Koenemann filed a verified complaint for declaratory judgment and petition for modification. They requested the court to find that Koene-mann was the natural father of the minor child and further requested the court to modify the prior divorce decree so as to strike all references to the minor child. Following an ore tenus hearing, the trial court found that Koenemann was the biological and natural father of the minor child. The court further awarded Presse certain visitation rights with the minor child. From this order, Presse appeals to this court.

For actions, such as this one, commenced since May 7, 1984, the Alabama Uniform Parentage Act (act), § 26-17-1, et seq., Ala.'Code 1975, provides for a civil cause of action for the determination of paternity. Section 26-17-5(a) sets out the circumstances where a man is presumed to be the natural father of a child, and § 26-17-5(b) states that a presumption of paternity under the above section may be rebutted only by clear and convincing evidence.

Here, Presse is the presumed father under § 26-17-5(a)(l), in that Presse and the mother were married at the time the minor child was born. This presumption is one of the strongest and most persuasive presumptions known to the law, and the measure of proof required to rebut such a presumption is great. It can only be rebutted by “clear and convincing” evidence. § 26-17-5(b). This clear and convincing evidence must tend to show that it is naturally, physically, or scientifically impossible for the husband to be the father. See Firikenbinder v. Burton, 477 So.2d 459 (Ala.Civ.App.1985); see also Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App. 1984).

Therefore, we find that, pursuant to the act, Koenemann could bring an action to rebut Presse’s presumption of paternity. The only question remaining is whether Koenemann met this extremely heavy burden. In other words, did Koenemann prove that it was scientifically impossible for Presse to be the father of the minor child? We think he did.

The record, in pertinent part, reveals that in June and July 1987, the trial court ordered certain blood tests to be performed. The results of these blood tests were that Presse “lacks the red cell antigen N, which is present in the child, Shelly R. Presse, and is absent in the mother. Therefore, the alleged father [Presse] cannot be the biological father of the child.” These reports further showed that Koenemann and the child share genetic markers and that there is a 99.B6 percent probability that Koenemann is the biological father.

In view of the above, we find that Koene-mann did meet his heavy burden of rebutting Presse’s presumption of paternity.

As to Presse’s arguments concerning collateral estoppel and res judicata, we find no merit. Koenemann was not a party to the original divorce case between Presse and the mother. We have no doubts that the mother is barred from raising the issue of paternity, see Collier v. State, 454 So.2d 1020 (Ala.Civ.App.1984); however, we find no reason why Koenemann should be excluded from doing so. He was not a party to the original suit, nor was the issue of paternity actually litigated. Therefore, the elements required to preclude an issue are not met. Owen v. Miller, 414 So.2d 889 (Ala.1981).

In view of the above, all other issues raised by Presse are pretermitted.

This case is due to be affirmed.

AFFIRMED.

BRADLEY, P.J., concurs specially.

HOLMES, J., dissents.

BRADLEY, Presiding Judge

(concurring specially):

I agree that there is clear and convincing evidence that Koenemann was the biological father of the child in question. However, I believe that the authority for Koe-nemann to bring the declaratory action is to be found in the Alabama Uniform Parentage Act, §§ 26-17-1 through -21, Code 1975.

Section 26 — 17—6(b) provides as follows:

“Any interested party may bring an action at any time for the purpose of determining the existence of nonexistence of the father and child relationship presumed under subdivision (4) or (5) of section 26-17-5(a).”

Although Presse is presumed to be the child’s natural father because he and the mother were married at the time the child was born, this presumption of paternity is rebuttable in “an appropriate action.” § 26-17-6(b), Code 1975. Moreover, the act recognizes that there will be assertions of paternity from more than one possible father because it provides in part that:

“In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man.”

§ 26-17-5(b), Code 1975.

It is undisputed that Koenemann has both received the child into his home and has openly held out that the child is his natural child. § 26-17-5(a)(4), Code 1975. Consequently, I would hold that he is an interested party under section 26-17-6(b) and that he has standing to pursue this paternity action.

HOLMES, Judge

(dissenting).

I respectfully dissent.

The majority concludes that “pursuant to the act, Koenemann could bring an action to rebut Presse’s presumption of paternity.” That assertion does not, I find, sufficiently address the appellant’s contention that the act does not so permit an action by Koenemann in this case.

The dispositive issue, in my opinion, is one of standing. Does Koenemann, under the facts and circumstances of this particular ease, have standing to contest the paternity of the child pursuant to the Alabama Uniform Parentage Act?

The trial court held that Koenemann did have standing to bring the action. Specifically, the trial court held the following:

“The five (5) year statute of limitations in paternity actions raised by Defendant is not applicable. Plaintiff Lynn Koene-mann does not fit putative father categories in § 26-17-5(a)(l), (2), or (3). If he fits any category, it would be § 26-17-5(a)(4) for which there is no statute of limitations per § 26-17-6(b). Further, he has standing to maintain this Declaratory Judgment action. See Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App.1984), and Finkenbinder v. Burton, 477 So.2d 459 (Ala.Civ.App.1985).”

I first note that the cases cited by the trial court were filed before the effective date of the act. The cases are not, therefore, directly applicable to the instant case. As indicated, the specific focus of this case is the question of Koenemann’s standing under the controlling statute — that statute being the Alabama Uniform Parentage Act.

The statutory provisions which the trial court cites in concluding that Koenemann does have standing read as follows:

“Any interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) of section 26-17-5(a).”

Ala.Code (1975), § 26-17-6(b) (1986 Repl. Vol.).

“While the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child....”

Ala.Code (1975), § 26-17-5(a)(4) (1986 Repl. Vol.).

Reading those two provisions together, the trial court apparently concluded that Koenemann was a “presumed father” under § 26-17-5(a)(4) and, therefore, could bring an action pursuant to § 26-17-6(b).

In concluding that Koenemann does not, in my opinion, have standing pursuant to the act in this case, I base my conclusion on the following statutory provision which I think is central to the resolution of this case and others like it:

“A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control”

Ala.Code (1975), § 26-17-5(b)' (1986 Repl. Vol.) (emphasis supplied).

My reading of that provision is that where two presumptions conflict — as in this case, where there are, at least arguably, two “presumed” fathers — certain considerations of public policy and logic must then be addressed in resolving the issue of standing.

Without repeating in detail the facts of this case, I am convinced that, where a party such as Koenemann has allowed the lapse of so many years and several judicial occasions in which to assert his fatherhood to pass, public policy dictates that he should not have standing to bring a paternity suit in this case.

I would note Chief Justice Torbert’s opinion in Ex parte Anonymous, 472 So.2d 643 (Ala.1985), in which he would apparently forever foreclose a purported biological father from bringing a paternity suit where the child was born during the marriage of the mother and another man.

I would agree with our distinguished Chief Justice Torbert, at least as far as this case is concerned, that the purported biological father does not have standing to contest the paternity of the child in question.  