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11/04/94 EX PARTE STATE ALABAMA EX REL. J.Z. (RE

November 4, 1994

EX PARTE STATE OF ALABAMA EX REL. J.Z. (RE: STATE OF ALABAMA EX REL. J.Z.
v.
J.S.T.)



(Colbert Juvenile Court, JU-80-248). George E. Carpenter, TRIAL JUDGE.

Rehearing Overruled December 16, 1994, . As Substituted. Opinion on Remand July 28, 1995, . Released For Publication February 20, 1996.

Robertson, Judge. Yates, J., concurs. Thigpen, J., Dissents.

The opinion of the court was delivered by: Robertson

PETITION FOR WRIT OF MANDAMUS

ROBERTSON, Presiding Judge

This is a petition for writ of mandamus. This case was transferred to the author of this opinion on September 29, 1994.

We note at the outset that the record before us does not contain a court reporter's transcript of the testimony upon which the trial court based its decision. Also, there is no Rule 10(d), Ala.R.App.P., statement of the evidence in lieu of a transcript. It is well settled law in Alabama that where the trial court considered oral testimony in reaching its decision and that testimony is not in the record, the testimony is presumed to have been sufficient to support that decision. Averett v. Averett, 575 So. 2d 598 (Ala. Civ. App. 1991).

The scant record in this case reveals that on January 13, 1981, a default judgment was entered, adjudging J.S.T. to be the father of S.S.Z., a minor child, based upon the affidavits of the mother, J.Z., and a social worker for the Colbert County Department of Pensions and Security.

On July 8, 1993, the State of Alabama, on behalf of J.Z., filed a petition for writ of ne exeat. On August 11, 1993, J.S.T. filed an answer and defenses to the petition for ne exeat. J.S.T. also filed a Rule 60(b)(6) motion to set aside the January 13, 1981, default judgment of paternity, alleging that he had requested a blood test but that the mother failed to appear for the test; that he had been incarcerated on the date of the trial in 1981; that he did not have actual knowledge of the default judgment of paternity until 1992, when he received notice of a tax refund offset for a child support arrearage; that he immediately responded to the notice of the tax refund offset by denying paternity; and that he denied that he had ever acknowledged paternity of the minor child. J.S.T. also filed a motion for blood tests. Following an ore tenus proceeding on August 26, 1993, the trial court entered an order on September 20, 1993, which states, in pertinent part, as follows:

"The matters now pending before the Court in this cause are: a Petition for Writ of Ne Exeat filed by the State; Answer and Defenses of [J.S.T.] to Petition for Writ of Ne Exeat; [J.S.T.]'s Motion to Set Aside Previous Adjudication of Paternity; and Defendant's Motion for Blood Tests.

"This case began with the arrest of [J.S.T.] on a Bastardy Warrant issued on November 4, 1980. On December 16, 1980, the case was continued to January 13, 1981, to allow time for a blood test to be taken. On January 13, 1981, [J.S.T.] did not appear for Court and a default was entered in which [J.S.T.] was found to be the father of S.S.Z., based upon the sworn affidavit of the child's mother. [J.S.T.] was ORDERED to pay $25.00 per week child support. The case lay dormant until the Petition for Writ of Ne Exeat was filed on July 8, 1993.

"On August 26, 1993, the Court held a hearing on the matters currently pending before the Court. . . .

"Based upon the evidence presented at the hearing and the Court's application of existing law to that evidence the Court finds that extraordinary circumstances exist which warrant relief from the previous paternity adjudication. A partial list of these extraordinary circumstances is as follows:

"1. The paternity judgment in the original case is a default judgment. [J.S.T.] had requested a blood test. The blood test was never accomplished apparently through no fault of [J.S.T.]. When [J.S.T.] failed to appear in court he did so because he was incarcerated by another court.

"2. There is substantial reason to believe that [J.S.T.] did not know he had been adjudicated the father of the child until a Tax Offset was served on him in 1992. At that time [J.S.T.] immediately began taking steps to deny paternity. This same [mother] and [J.S.T.] were before this Court in 1983 in a separate Paternity and Support Case and no issue was raised about [J.S.T.'s] delinquent support obligation in this case. [J.S.T.] remained in Alabama from 1983 to 1987 then lived in Michigan from 1987 to February 1991. [J.S.T.] was again incarcerated in Alabama from February ...


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