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Ex parte Kimbrell

Alabama Court of Civil Appeals

April 17, 2015

Ex parte Amanda Kimbrell; In re: Amanda Kimbrell
v.
Denny Kimbrell

          Walker Circuit Court, DR-14-900190.

          For Petitioner: Sandi Eubank Gregory, Birmingham.

         For Respondent: James C. Brakefield, Jackson, Fikes, Hood & Brakefield, Jasper.

         THOMPSON, Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ., concur.

          OPINION

Page 31

         PETITION FOR WRIT OF MANDAMUS

         THOMPSON, Presiding Judge.

         Amanda 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.

         Initially, 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 (Ala. 1999)."

Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).

         The 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

Page 32

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 jurisdictional issues.
" 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' minor child.
" 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 [from Kimbrell].
" 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 2004.
" 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 ...

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