
    J.W.O. v. C.A.P., W.H.P., and A.C.P.
    2940673.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1996.
    Rehearing Denied March 15, 1996.
    David Gespass of Gespass & Izzi, Birmingham, for Appellant.
    Virginia A. Vinson of Wilkinson & Vinson, Birmingham, for Appellees.
   ROBERTSON, Presiding Judge.

In September 1994, J.W.O. filed a complaint against C.A.P. (the “mother”), W.H.P. (the “husband”), and A.C.P. (the “child”), seeking a judgment declaring that he is the natural and legal father of the child. The complaint alleged that J.W.O. had cohabited with the mother and that the child was conceived during the period of cohabitation. The complaint further alleged that after the relationship between J.W.O. and the mother ended, the mother married the husband and the child was bom two months later. J.W.O. requested that the court grant him visitation and order him to pay child support. In December 1994, J.W.O. moved the court to order a blood test to determine the biological paternity of the child.

In February 1995, the guardian ad litem for the child filed a Rule 12(b)(6), Ala.R.Civ. P., motion to dismiss the ease on the ground that J.W.O. had no standing to establish his paternity. In April 1995, the trial court granted the motion to dismiss. We reverse and remand.

The standard for review of the grant of a motion to dismiss was set out by our Supreme Court in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ. App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985); Hill v. Falletta, 589 So.2d 746 (Ala. Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

The trial court did not specify its reason for dismissing the case. However, because standing to bring the declaratory judgment action was the only argument presented to the trial court, we conclude that the only basis for the dismissal would have been a determination that J.W.O. lacked standing. Accordingly, we consider whether J.W.O. has standing under the Alabama Uniform Parentage Act, Ala.Code 1975, § 26-17-1 et seq., to establish his paternity.

In pertinent part, § 26-17-5 addresses the presumption of paternity as follows:

“(a) A man is presumed to be the natural father of a child if any of the following apply:
“(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, ...
“(4) 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.
“(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence....”

Section 26-17-6(b) specifies who may bring an action to determine the paternity of a child under circumstances applicable to this ease:

“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) or (6) of Section 26-17-5(a).”

J.W.O. asserts that he is an interested party because he “openly holds out the child as his natural child” under § 26-17-5(a)(4). The husband is presumed to be the father of the child under § 26-17-5(a)(l). However, under § 26-17-5(b) that presumption is re-buttable by clear and convincing evidence. This court has often recognized that the presumption of paternity is rebuttable. See, e.g., M.M. v. C.M., 600 So.2d 316 (Ala.Civ. App.1992); J.J.O. v. K.O., 591 So.2d 92 (Ala.Civ.App.1991); and S.T. v. C.T.T., 571 So.2d 1168 (Ala.Civ.App.1990).

Under the applicable statutes, it would appear that J.W.O. has standing under § 26-17-6 to attempt to rebut the husband’s presumed paternity under § 26-17-5(b). However, we also must consider the application of Ex parte Presse, 554 So.2d 406 (Ala.1989). In Presse, our supreme court reviewed a situation where the child was conceived and born during the marriage. The Court framed the issue as follows:

“Does a man claiming to be the father of a child conceived and bom during the marriage of the mother to another man have standing under the UPA [Alabama Uniform Parentage Act] to initiate an action to establish that he is the father of the child where the presumed father persists in the presumption that he is the father?”

554 So.2d at 411 (emphasis added). The facts in Presse were that during her marriage the mother had committed adultery with the man claiming to be the father, and the child was conceived as a result of the adultery. The child was born during the marriage, and when the marriage ended, the husband was awarded custody. The mother later obtained primary custody and eventually married the man who claimed to be the father. After their marriage, they sued to exclude the husband from the child’s life. The Court in Presse held that the man claiming to be the father did not have standing under the Uniform Parentage Act to establish paternity to the detriment of the legal father who had helped raise the child in the good faith belief that it was his natural child.

J.W.O.’s complaint alleges that he and the mother were cohabiting at the time of conception and that the husband and the mother did not know each other at the time the child was conceived. J.W.O. alleges that after he and the mother ended their relationship, the mother met and married the husband. The child was born some two months after the marriage. J.W.O. also alleged that he has made repeated efforts to contact the child and to establish a relationship, but that the mother and the husband have refused all such attempts.

In this case the child was not conceived during the marriage and within an intact family unit. The policy considerations militating against the arguments of the man claiming to be the father in Presse do not apply to J.W.O. We hold that Presse is distinguishable from the instant case and does not deprive J.W.O. of standing to establish paternity.

Because we hold that J.W.O. has standing to establish paternity, we consider whether, when the allegations of the complaint are viewed most strongly in J.W.O.’s favor, he could prove any set of circumstances that would entitle him to relief. In determining this issue, we consider only whether he may possibly prevail. Nance, supra. It is evident that J.W.O. could present clear and convincing evidence that would show his paternity; thus, the trial court’s dismissal was error.

We recognize that the presumption of paternity is strong and the burden of rebuttal heavy. J.J.O., supra. However, we cannot hold, under the facts before us, that the presumption can never be rebutted. Such a holding would impair the court’s duty to ascertain the truth. “[T]he solemn and sacred duty of a trial judge ... is the development and establishment of the truth....” Brandes v. State, 17 Ala.App. 390, 391, 85 So. 824, 825 (1920).

We note further that an irrebuttable presumption could prevent the child from discovering his true biological father. Our Supreme Court has quoted the following with approval:

‘“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.’ ”

Ex parte Martin, 565 So.2d 1, 3 (Ala.1989) (quoting Ruddock v. Ohls, 91 Cal.App.3d 271, 154 Cal.Rptr. 87, 91 (1979)).

Accordingly, we reverse the judgment of dismissal and remand this cause for further proceedings.

We are compelled to briefly address the misstatements of law in the dissents regarding the Alabama Supreme Court’s decision in Ex parte Presse. In Presse, the mother and Mr. Presse were married in 1973; they lived together thereafter as husband and wife; the child was born in 1977; and the Presses and the child continued to live together as a family unit until the divorce in 1980. 554 So.2d at 408. “Presse [was] presumed to be the father because he was married to the child’s mother at the time the child was both conceived and born. § 26-17-5(a)(l).” 554 So.2d at 423.

The facts in this case are totally different from the facts in Presse; consequently, the dissents wrongfully accuse the majority of failing to follow the law as espoused in Presse. As Justice Maddox points out in his dissenting opinion in Presse, to hold otherwise under the facts in this case, we would have to “wittingly or unwittingly [refuse] to follow decisions of the United States Supreme Court that clearly hold that a natural father has a liberty interest in establishing and maintaining a relationship with his natural child. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).” 554 So.2d at 419.

It defies common sense and judicial logic that a mother can live with a man, conceive a child in that relationship, then marry another man immediately before the child is born, and thereby estop the natural father from establishing and maintaining a relationship with his natural child. To follow the reasoning in the dissents would “[set] back the law regarding paternity issues 100 years, and the [dissents ignore] not only the law as it currently exists, but also all the facts of this ease as well.” 554 So.2d at 418.

REVERSED AND REMANDED.

YATES and MONROE, JJ., concur.

THIGPEN and CRAWLEY, JJ., dissent.

THIGPEN, Judge,

dissenting.

I am constrained to concur with Judge Crawley’s dissent because the law is clear that one claiming to be the father of a child born during the mother’s marriage to another man has no standing to institute an action either to declare paternity, or to attempt to rebut the legal presumption that serves to protect the child and the integrity of the family unit. Ala.Code 1975, §§ 26-17-5 and 26-17-6; Ex parte Presse, 554 So.2d 406 (Ala.1989); see also Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). I am compelled, however, to comment on some of my concerns regarding the somewhat unique nature of this case.

Foremost is my concern that the motion to dismiss J.W.O.’s complaint by challenging J.W.O.’s standing was filed by the child’s guardian ad litem. That distinction supports the legislative wisdom involved in enacting certain provisions of the AUPA to exclude inquiries into a child’s paternity when such inquiries would be destructive to the child’s family unit. It also supports my conclusions that there are circumstances surrounding the child, his conception, his birth, and his upbringing that may be known only to those directly involved and most affected, and that the child’s guardian ad litem has determined that the child’s interest is best served by protecting his established family unit.

The mother’s husband has accepted this child as his own, providing this child with a legal father who is willing to support the child financially and otherwise. J.W.O.’s declaratory action does not appear to be brought for the purpose of supporting the child, but merely to proclaim his biological paternity. If J.W.O. is intending to provide for the child to inherit from J.W.O., that purpose could be accomplished in another legal manner, without disrupting the sanctity of the child’s family unit and without the risk of bastardizing the child, possibly forever, i.e., by J.W.O.’s making a will. To permit J.W.O. to proceed in this action may allow him to take away the child’s legitimacy. There is no legal recourse for a child if it is later determined that the petitioner is not the child’s biological father.

Initially, J.W.O. was not attempting to rebut the legal presumption that protects this child, but was merely attempting to proclaim his paternity and have himself declared to be the child’s father. The law recognizes this child as the legal child of another man, and J.W.O. is barred from asserting paternity without first overcoming that statutory presumption. Ala.Code 1975, § 26-17-5; Presse, 554 So.2d 406; see also Michael H., 491 U.S. 110,109 S.Ct. 2333.

Before the adoption of the AUPA, one was not barred from initiating a declaratory action for that purpose. Anonymous v. Anonymous 472 So.2d 640 (Ala.Civ.App.1984), writ quashed, 472 So.2d 643 (Ala.1985); see also Finkenbinder v. Burton, 452 So.2d 880 (Ala.Civ.App.1984). Since that time, however, our Supreme Court has clearly stated that an action by one situated as J.W.O. “is not permitted under the [AUPA], as long as there is a presumed father, pursuant to § 26-17-5(a)(l), who has not disclaimed his status as the child’s father.” Presse, 554 So.2d at 418; see also Ala.Code 1975, § 26-17-6, and D.D. v. G.L.D., 600 So.2d 265 (Ala. CivApp.1991).

Furthermore, this action could not be brought pursuant to Ala.Code 1975, § 26-17-6(b), because J.W.O., “had not received the child into his home, had not openly held out the minor child as his natural child, nor acknowledged paternity of the minor child in a writing filed in accordance with the provisions of the legitimation statute.” State ex reí E.K.D. v. M.R.W., 662 So.2d 910, 913 (Ala.Civ.App.1994), writ quashed, 662 So.2d 913 (Ala.1995).

This court has previously considered the AUPA presumption in a case involving a child conceived prior to the mother’s marriage. Foster v. Whitley, 564 So.2d 990 (Ala. Civ.App.1990). The law clearly states that the husband is presumed to be the natural father of a child bom to his wife during their marriage and there exists no legal distinction when conception occurred before the marriage. Ala.Code 1975, § 26-17-5, and Foster, 564 So.2d 990.

In his complaint for a declaratory judgment, J.W.O. expressly sought to be declared the child’s father and asked the trial court to determine and declare his rights, duties, and the liabilities involved. In a factually similar case, the United States Supreme Court addressed the constitutionality of a California statute expressing that the presumption is conclusive, and held that one in the position of J.W.O. has no rights or responsibilities in regard to the child, so long as there is a presumed father willing to accept those rights and responsibilities for him. Michael H., 491 U.S. 110, 109 S.Ct. 2333. Although the AUPA presumption is rebuttable, at this time, J.W.O. simply has no standing to attempt to rebut that presumption. Ala.Code 1975, §§ 26-17-5 and -6.

The law of this state defines the father and child relationship as a “legal relationship.” Ala.Code 1975, § 26-17-2. Although it is clear that a child can have only one father, courts have historically considered that a determination regarding parental rights and the best interests of a child involve more than a biological connection. In reviewing cases where the best interest of a child is at stake, I continually seek for distinctions regarding the rights and responsibilities of a “legal” father and those of a “biological” father. See my dissent in State ex rel. AT. v. E.W., [Ms. 2940404, November 17, 1995] — So.2d-(Ala.Civ.App.1995); see also Fuller v. Fuller, 623 So.2d 332 (Ala.Civ.App. 1993).

The AUPA is historically rooted in honorably protecting the integrity of the family unit, i.e., the child, the mother, and the husband who has accepted the child as his own; however, I am concerned that the passage of time could forever cloak a child’s biological paternity. I know of no method whereby a legal stranger situated as is J.W.O. can seek to legally ascertain the truth regarding a child’s biological paternity. Because this case merely involves standing, I do not believe a ruling against J.W.O. would bar a subsequent petition and a ruling on the merits should circumstances change and paternity become an issue. In that situation, J.W.O. might be permitted to intervene. See D.D., 600 So.2d 265; see also, S.E.B. v. J.H.B., 605 So.2d 1230 (Ala.Civ.App.1992); State ex rel. Goodno v. Cobb, 567 So.2d 376 (Ala.Civ.App. 1990); and Finkenbinder v. Burton, 477 So.2d 459 (Ala.Civ.App.1985).

As Judge Crawley stated in his dissent, this court must adhere to pronouncements of our Supreme Court. I would affirm the judgment of the trial court; therefore, I must respectfully dissent.

CRAWLEY, Judge,

dissenting.

This court is bound by the decisions of our supreme court. Ala.Code 1975, § 12-3-16. I conclude that this case is governed by our supreme court’s opinion in Presse supra, and I must respectfully dissent.

Our supreme court’s holding in Presse is that a man, who was not married to the mother at the time of the child’s birth, does not have standing pursuant to the UPA to challenge the husband’s claim to paternity if the husband “persists in maintaining his paternal status.” 554 So.2d at 418. The husband in this case “persists in maintaining his paternal status;” therefore, J.W.O. does not have standing to challenge that status.

The majority distinguishes this case from Presse because the child in this case was not conceived during the marriage of the mother and the husband unlike the facts in Presse. Our supreme court did not hold that the mother’s husband is presumed the father only if the child is conceived during the marriage. The reference to “conceived and bom” in the Presse opinion only states the facts that were presented in that case. See Id. at 411. In order for the husband to be presumed the father, the UPA only requires that the child be born during the marriage. Ala.Code 1975, § 26-17-5(a)(l). The UPA does not require that the child be conceived during the marriage for the husband to be presumed the father.

Our supreme court further stated that the “UPA espouses principles that seek to protect the sanctity of family relationships.” Id. at 412. I conclude that this case presents even stronger facts to protect such relationships presented in the Presse case. Here, the mother and husband are currently married, unlike the parents in Presse. Also, unlike the mother in Presse, the mother in this case opposes the claim of J.W.O.

To allow J.W.O. to have standing to challenge the husband’s paternity would allow J.W.O. to disrupt and attack an intact nuclear family arrangement. Our legal system values marriage and the traditional family setting, and it will not allow a stranger to that relationship to challenge its existence. Also, our supreme court’s holding in Presse protects the “substantial state interest in the psychological stability and general welfare of the child.” Id. at 418. Finally, there is no financial reason to allow J.W.O. to challenge the husband’s paternity because the husband is providing support for the child.

I conclude that the holding of Presse applies to the facts of this case and that the policy concerns stated by our supreme court are even more applicable to this case. 
      
      . Under the facts of this case, we do not infer that the trial court would have dismissed a complaint by the mother to establish J.W.O.’s paternity. Because we hold Presse distinguishable, we do not consider whether mutuality of remedy should afford J.W.O. the same standing to establish paternity, or whether deprivation of this right under these facts infringes on J.W.O.'s constitutional rights guaranteeing access to the courts and a remedy. Ala. Const, of 1901, Art. I, §§ 10 and 13.
     
      
      . Custody of the child was initially awarded to Mr. Presse; later, custody was divided between the mother and Mr. Presse, with the mother having primary custody.
     
      
      . The complex evolution of this Anonymous case is as follows: Davis v. Sparks was originally appealed to the Court of Civil Appeals, which reversed and remanded on April 25, 1984. On May 30, 1984, the April 25, 1984, opinion was withdrawn on rehearing, the application for rehearing was overruled, an opinion was substituted, and the judgment of the trial court was again reversed and remanded. On June 12, 1984, a petition for a writ of certiorari was filed with the Alabama Supreme Court, and this was denied on August 31, 1984. On September 26, 1984, it was placed on rehearing by the Alabama Supreme Court, ex mero motu. On May 24, 1985, the rehearing was quashed as improvidently granted. Sometime between the original release on April 25, 1984, and the denial of certiorari by the Supreme Court, the style was amended to Anonymous v. Anonymous.
      
      Between the time of the Court of Civil Appeals's release of Davis v. Sparks on April 25, 1984, and the change of the style by the Supreme Court, the Davis case was cited in Eddy v. Lyle, 455 So.2d 877 (Ala.Civ.App.1984), and Finken-binder v. Burton, 452 So.2d 880 (Ala.Civ.App. 1984).
      For a similar situation involving the change of a case name, see Martin v. Burkhimer, 565 So.2d 1 (Ala. 1989), L.F.B. v. K.M.M., 599 So.2d 1178 (Ala.Civ.App.1991), and Ex parte L.F.B., 599 So.2d 1179 (Ala. 1992).
     