Appeal from Butler Circuit Court. (CV-93-75). H. Edward McFerrin, TRIAL JUDGE.
Rehearing Denied April 14, 1995, . Certiorari Denied July 28, 1995.
Holmes, Retired Appellate Judge. All the Judges concur.
The opinion of the court was delivered by: Holmes
HOLMES, Retired Appellate Judge
This is a paternity case.
On January 11, 1991, the State of Alabama, on behalf of J.J.S. (mother), filed a complaint in the district court, seeking an adjudication of paternity and seeking child support. This complaint stated that the mother had named S.L.C. as the father of one of her minor children, C.M.J. (child).
S.L.C. filed an answer, wherein he denied that he was the person charged with the duty of supporting the child. S.L.C. also filed several amended answers, wherein he raised numerous defenses, including that the State lacked standing and was not a real party in interest, that the court lacked subject matter jurisdiction, that all necessary parties were not included in the action, and that the action was barred by the applicable statute of limitations and by res judicata.
In June 1993, prior to a hearing on the merits, the district court transferred the case to the circuit court. In July 1994 the State, on behalf of the mother, filed a motion to add C.J., the man who was married to the mother at the time that the child was born, as a party defendant and to give him notice of the proceedings. The motion was granted.
A hearing was held in August 1994. Thereafter, the trial court issued an order, wherein it found that S.L.C. was the father of the child and was obligated to pay child support in accordance with the provisions of the order.
Our review of the record reveals the following pertinent facts: The mother and C.J. were married in 1974 and separated in 1982. The mother filed for divorce from C.J. in 1991. When the mother filed for divorce from C.J., she signed a sworn affidavit, which stated that her three minor children, N.J., C.M.J. and S.J., were born of the marriage. One of these children, C.M.J. (child) is the subject of the present paternity proceedings, which were filed in January 1991. The child was born August 6, 1978, during the mother's marriage to C.J.
The final judgment of divorce was entered in January 1992, and the mother is currently married to F.S. In April 1994 the circuit court entered an amendment to the final judgment of divorce, after reviewing a motion for relief from judgment filed by the mother. The 1994 amendment to the final decree stated, in pertinent part:
"Upon review of the motion, the court is of the opinion that the court was without personal jurisdiction over [C.J.] since service was had by publication without appropriate allegations that [C.J.] was avoiding service. Without such personal jurisdiction those portions of the court order dealing with paternity, support, and the custody and control of the minor children [were] void and without effect."
On appeal S.L.C. contends that the present paternity action could not be maintained because, he says, (1) it is presumed, pursuant to Ala. Code 1975, § 26-17-5(a)(1), that C.J. is the child's father and, therefore, responsible for her support and maintenance and (2) this action is barred under the provisions of Ala. Code 1975, § 26-17-6(a). S.L.C. argues on appeal that if the courts allow the present paternity action to be filed and tried after ...