Circuit Court, DR-14-900190.
Petitioner: Sandi Eubank Gregory, Birmingham.
Respondent: James C. Brakefield, Jackson, Fikes, Hood &
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
FOR WRIT OF MANDAMUS
Kimbrell (" the mother" ) has filed a petition for
a writ of mandamus seeking relief from the February 10, 2015,
order of the Walker Circuit Court (" the trial
court" ) that determined that Denny Kimbrell ("
Kimbrell" ) was the father of the child born when the
mother and Kimbrell were in a relationship and scheduled the
action for a hearing on Kimbrell's claim seeking custody
of the child.
we note that a petitioner seeking a writ of mandamus bears a
high burden of proof.
" The writ of mandamus is an extraordinary remedy; it
will not be issued unless the petitioner shows '"
'(1) a clear legal right in the petitioner to the order
sought; (2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.'" ' Ex parte
Inverness Constr. Co., 775 So.2d 153, 156(Ala. 2000)
(quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.
1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962
Ex parte Children's Hosp. of Alabama, 931 So.2d
1, 5-6 (Ala. 2005).
only material submitted in support of the mother's
petition for a writ of mandamus is the February 10, 2015,
order at issue, which sets forth the relevant facts and the
trial court's legal determinations as follows:
" 1. [The mother and Kimbrell] filed the typical
uncontested answer and waiver for a divorce on June 23, 2014.
The parties entered into a settlement agreement concerning
their alleged marital
differences on that same date, which was filed with the Court
on July 7, 2014.
" 2. Also, on July 7, 2014, [the mother] filed a Motion
To Set Aside Settlement Agreement.
" 3. On July 11, 2014, [the mother] filed a Motion To
Dismiss the complaint for divorce as she claims her marriage
to [Kimbrell] was void because her prior marriage to Jonathan
Herbert was never terminated by divorce, annulment, or death.
" 4. On July 16, 2014, [Kimbrell] filed an amended
answer to [the mother's] original complaint, and a
counterclaim which, among other things, requested an
annulment of the marriage and custody of the parties'
minor child. [The mother] filed an answer to [Kimbrell's]
counterclaims asserting a general denial and denying all
" 5. On January 5, 2015, [Kimbrell] filed a Petition To
Determine Paternity. It is important to note that in the
petition, [Kimbrell] is not seeking genetic testing to
disprove paternity, but rather is seeking genetic testing to
prove that he is the biological father of the parties'
" 6. This matter was tried on January 12, 2015.
" 7. The only parties to this action were [themother]
and [Kimbrell]. John Herbert, a potential presumed father and
nonresident of this state, never was a party to or intervened
in this cause. This Court lacks jurisdiction over him as none
of the bases for jurisdiction over a nonresident set forth in
§ 30-3A-201, Ala. Code 1975, exist.1
" FINDINGS OF FACT
" 1. According to trial testimony, [the mother] married
John Herbert on August 20, 1996, in Belleville, Illinois.
" 2. Sometime in 1997, [the mother] left John Herbert
without divorcing him and returned to Alabama. [The mother]
had not seen John Herbert since leaving him in 1997 until
sometime in June 2014, after filing her complaint for divorce
" 3. [The mother] did have a telephone conversation with
John Herbert in 1997 in which she understood he would file
all appropriate legal documents to obtain a divorce from her.
John Herbert testified that he never filed for divorce, nor
did he obtain a marriage annulment from any court.
" 4. [The mother] introduced numerous letters from the
various circuit court clerks of the counties and states in
which either she or John Herbert had resided since 1996 that
no proceeding swere ever filed to terminate the marriage by
divorce or annulment. Based on the trial testimony and these
documents, it is undisputed that [themother's] marriage
to John Herbert on August 20,1996, was never terminated by
divorce, annulment, or death.
" 5. Trial testimony further showed that the parties to
this cause began living with each other in approximately
" 6. During the course of this relationship the parties
engaged in sexual intercourse.
" 7. On February 24, 2006, a child ... (hereinafter the
'minor child') was born of [themother]. The birth
certificate lists [Kimbrell] as the father of the child. The
child was born in Walker County, Alabama.
" 8. It is undisputed that [Kimbrell] was present at the
hospital for the child's birth, received the child into
his home immediately after the child's birth, and the
child continuously lived with ...