April 17, 2015
Ex parte Amanda Kimbrell; In re: Amanda Kimbrell
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 [Kimbrell] and [the mother] in
home for the past eight (8) years. During this time,
[Kimbrell] believed and openly held out the child to be his
natural born child. The child has only been separated from
[Kimbrell] since [the mother's] filing of her complaint
for divorce. It was further undisputed that [Kimbrell]
provided both emotional and financial support for the child.
" 9. Approximately 7 months after the birth of the minor
child, [the mother] and [Kimbrell] were ceremoniously married
to each other on September 22,2006. The parties'
Certificate of Marriage is on file in the Probate Judge's
Office of Walker County, Alabama, and was introduced at
" 10. At all times pertinent to this cause and since the
birth of the minor child, the minor child has resided with
the parties in Walker County, Alabama.
" 11. This Court takes judicial notice that it has
previously entered an order in this matter requiring
[Kimbrell] to pay child support to [themother] for the
parties' minor child.
" NOW, THEREFORE, based on the pleadings of the parties
and the facts and evidence presented at trial it is ORDERED,
ADJUDGED, and DECREED as follows:
" 1. [The mother's] Motion To Set Aside Settlement
Agreement is hereby GRANTED and said settlement agreement is
deemed void and of no force and effect.
" 2. The marriage between [the mother] and [Kimbrell] is
hereby ANNULLED and the marriage between [the mother] and
[Kimbrell] is deemed void, ab initio.
" 3. As a result of annulling the marriage between the
parties, [the mother's] Motion To Dismiss the complaint
is hereby deemed MOOT.
" 4. Further, [the mother] testified during trial that
she is not seeking an interest in any property acquired
during the cohabitation and attempted marriage of the
parties. Therefore, all right, title, and interest in all
property acquired by [Kimbrell] before and during the
cohabitation and attempted marriage of the parties is hereby
fully vested in [Kimbrell], and [the mother] is hereby
divested of any right, title or interest therein.
" 5. [Kimbrell's] Petition To Determine Paternity is
hereby GRANTED and [Kimbrell] is hereby found and determined
to be the father of the parties' minor child, ...
pursuant to Sections 26-17-204(a)(4)(B) & (C) and
26-17-204(a)(5), Ala. Code 1975. The Court makes note that
[the mother] appeared to be arguing on behalf of John
Herbert, her husband whom she had been estranged from since
1997, that he is the weightier 'presumed father' of
the minor child in an effort to disprove paternity in
[Kimbrell]. This argument is disallowed under§
26-17-607(a), Ala. Code 1975, which states, in pertinent
part, 'If the presumed father ([Kimbrell]in this case)
persists in his status as the legal father of a child,
neither the mother nor any other individual may maintain an
action to disprove paternity.' Further, it is noted that
John Herbert, by his own testimony, could not be the
biological father of the minor child, nor has he been
involved in the minor child's life since her birth. It is
clear from the testimony and evidence that [Kimbrell] has
been the only father the minor child has known since her
" 6. [Kimbrell's] request for genetic testing
contained in his Petition To Determine Paternity is hereby
DENIED as this Court has determined that he is the presumed
father of the minor child and no other person has sought to
be declared the father of the minor child.
" 7. [Kimbrell's] counterclaim for custody is set
for trial on ....
" 1The lack of personal jurisdiction over
JohnHerbert, however, does not preclude this Court from
making a binding adjudication of parentage related to the
[mother] and [Kimbrell]. See § 26-17-604(c), Ala. Code
(Capitalization in original.)
petition for a writ of mandamus, the mother argues that the
trial court erred in determining that Kimbrell was the father
of the child. The mother contends that because the trial
court invalidated her marriage to Kimbrell, it had "
validated" her " continued marriage" to
Jonathan Herbert. Therefore, the mother argues, Herbert, by
virtue of his being married to the mother at the time of the
birth of the child, is the presumed father of the child.
the unique facts of this case, it appears that, pursuant to
the applicable Alabama statute, the child had two presumed
fathers. Section 26-17-204 provides:
" (a) A man is presumed to be the father of a child if:
" (1) he and the mother of the child are married to
each other and the child is born during the marriage;
" (2) he and the mother of the child were married to
each other and the child is born within 300 days after the
marriage is terminated by death, annulment, declaration of
invalidity, or divorce;
" (3) before the birth of the child, he and the mother
of the child married each other in apparent compliance with
law, even if the attempted marriage is or could be declared
invalid, and the child is born during the invalid marriage
or within 300 days after its termination by death,
annulment, declaration of invalidity, or divorce;
" (4) after the child's birth, he and the
child's mother have married, or attempted to marry,
each other by a marriage solemnized in apparent compliance
with the law although the attempted marriage is or could be
declared invalid, and:
" (A) he has acknowledged his paternity of the child
in writing, such writing being filed with the appropriate
court or the Alabama Office of Vital Statistics; or
" (B) with his consent, he is named as the
child's father on the child's birth certificate;
" (C) he is otherwise obligated to support the child
either under a written voluntary promise or by court
" (5) while the child is under the age of majority, he
receives the child into his home and openly holds out the
child as his natural child or otherwise openly holds out
the child as his natural child and establishes a
significant parental relationship with the child by
providing emotional and financial support for the child; or
" (6) he legitimated the child in accordance with
Chapter 11 of Title 26.
" (b) A presumption of paternity established under this
section may be rebutted only by an adjudication under Article
6 [i.e., § 26-17-601 et. seq., Ala. Code 1975]. In the
event two or more conflicting presumptions arise, that which
is founded upon the weightier considerations of public policy
and logic, as evidenced by the facts, shall control. The
presumption of paternity is rebutted by a court decree
establishing paternity of the child by another man."
brief before this court, the mother's stated issue is
that the trial court
erred in determining Kimbrell to be the child's presumed
father. The mother does not dispute the trial court's
factual findings that form the basis for its determination
that Kimbrell is the child's presumed father under §
26-17-204(a)(4)(B) and (C) and § 26-17-204(a)(5). In
other words, the mother does not dispute that Kimbrell has
taken the child into his home, has held the child out as his
child, and has established a significant parental bond with
the child, see § 26-17-204(a)(5), or that she and
Kimbrell attempted to marry after the child's birth and
that he was both named as the child's father on the
child's birth certificate and ordered to pay pendente
lite child support, see § 26-17-204(a)(4)(B) and (C).
Accordingly, we cannot say that the mother has demonstrated
that the trial court erred in determining that Kimbrell was
the child's presumed father under §
26-17-204(a)(4)(B) and (C) and § 26-17-204(a)(5).
mother argues that the trial court erred in determining that
the presumption in favor of Kimbrell's paternity was
" weightier" than that in favor of Herbert's
paternity. See § 26-17-204(b) (" In the event two
or more conflicting presumptions arise, that which is founded
upon the weightier considerations of public policy and logic,
as evidenced by the facts, shall control." ). As part of
her argument on this issue, the mother contends that Kimbrell
lacks standing to assert a claim of paternity of the child
born of her marriage to another man. In Alabama, a man lacks
standing to assert a claim to establish his paternity of a
child if another man who is the child's presumed father
under § 26-17-204 persists in the presumption of
paternity. § 26-17-607(a), Ala. Code 1975;
Ex parte Presse, 554 So.2d 406 (Ala. 1989); and
A.S. v. M.W., 100 So.3d 1112, 1114 (Ala.Civ.App.
2012). The mother asserts in her brief submitted to this
court that Herbert has persisted in the presumption of
paternity that arises by virtue of his continued marriage to
the mother. However, in support of her petition
for a writ of mandamus, the mother submitted only the trial
court's February 10, 2015, order. In that order, the
trial court set forth some testimony provided by Herbert, but
it did not mention any facts indicating that Herbert sought
to persist in a presumption of paternity.
the burden of the mother, as the party seeking extraordinary
relief by writ of mandamus, to submit to this court the
portions of the proceedings below that support her arguments
made in her petition. See Rule 21(a)(1)(E), Ala. R. App. P.
(providing that a petition for a writ of mandamus shall
contain, among other things, " [c]opies of any order or
opinion or parts of the record that would be essential to an
understanding of the matters set forth in the petition"
). The mother's failure to include in her petition for a
writ of mandamus
any information regarding whether Herbert might have
persisted in his presumption of paternity prevents this court
from reaching her argument concerning Herbert's alleged
persistence in any presumption of paternity in his favor. Our
supreme court has explained:
" We deny the writ on the basis that the trial court
heard evidence that is not included with the petition for the
writ of mandamus. On review by mandamus, the reviewing court
must look at only the evidence that was before the trial
court. Ex parte Ralston, 519 So.2d 488 (Ala. 1987);
Ex parte Baker, 459 So.2d 873 (Ala. 1984).
Conversely, if there was evidence before the trial court that
is not presented with the mandamus petition and that evidence
might support the trial court's decision, the petitioner
has not met his burden of making a 'clear showing of
error' by the trial court. Ex parte Jim Skinner Ford,
Inc., 435 So.2d 1235, 1237(Ala. 1983). A writ of
mandamus is a drastic and extraordinary remedy, and such a
writ will be issued only upon a showing that the petitioner
has a clear right to relief. Ex parte Humana Medical
Corp., 597 So.2d 670, 671 (Ala. 1992)."
Ex parte Moore, 642 So.2d 457, 462 (Ala. 1994). Similarly,
our supreme court has denied a petition for writ of mandamus
when the petitioner did not submit materials necessary to the
review of the issue presented to that court:
" Our task in this case is to evaluate the decision of
the trial court to determine whether, in exercising its
discretion, it exceeded that discretion. To conduct such an
evaluation, it is necessary to review the information on
which the trial court based its decision.
" ... [W]hen we next seek justification for the trial
court's denial of Allianz's motion for a protective
order, we find that Allianz has not provided this Court a
copy of the motion or any supporting information as part of
its petition. Accordingly, we can find no error in the trial
court's exercise of its discretion regarding the denial
of the protective order because we have no evidence that the
motion was more than a mere unsupported request for a
protective order. Indeed, the sole evidence this Court has of
the existence of such a motion is the word 'denied'
on a single-page order from the trial court that references a
motion for a protective order."
Ex parte Allianz Life Ins. Co. of North America, 25
So.3d 411, 416 (Ala. 2008) (denying the petition for a writ
of mandamus when the petitioner had failed to provide
mother submitted in support of her petition for a writ of
mandamus only the trial court's February 10, 2015, order,
quoted earlier in this opinion, which contains no indication
that Herbert had persisted in the presumption of paternity.
The mother failed to submit to this court a copy of the
transcript of the hearing or any other documentation
indicating that Herbert might be persisting in the
presumption in favor of his paternity as a presumed father of
the child. Accordingly, despite basing her argument on the
alleged persistence by Herbert, her husband, in a presumption
of paternity, the mother has failed to demonstrate that
Kimbrell lacked standing to assert a claim to paternity of
the child due to Herbert's persistence in a presumption
assuming, however, that this court could conclude that
Herbert has persisted in the presumption in favor of his
paternity by virtue of his marriage to the mother, that fact
would not necessitate the granting of mandamus relief under
facts of this case. The materials submitted by the mother
indicate that Kimbrell also has persisted in the presumption
in favor of his paternity of the child. The trial court found
that Kimbrell, the child's presumed father under §
26-17-204(a)(4)(B) and (C) and § 26-17-204(a)(5), has
persisted in the presumption in favor of his
paternity. The trial court determined that
because Kimbrell has persisted in the presumption in favor of
his paternity, the mother was precluded from challenging his
paternity of the child. See § 26-17-607(a) (providing
that " [i]f the presumed father persists in his status
as the legal father of a child, neither the mother nor any
other individual may maintain an action to disprove
paternity" ). It is clear from that conclusion, and the
February 10, 2015, order in its entirety, that the trial
court implicitly determined that, as between the two presumed
fathers, the presumption in favor of Kimbrell implicated
weightier public-policy considerations and, thus, should
prevail. See § 26-17-607(b).
extent the mother argues that, as between the child's two
presumed fathers, the presumption in favor of Herbert is the
" weightier" of the two presumptions, we agree with
the implicit holding of the trial court, and we reject that
argument. In Ex parte Presse, supra,
relied upon by the mother in her brief submitted to this
court, the mother in that case and Presse divorced, and the
divorce judgment addressed the issue of custody of the minor
child born during the parties' marriage. Later, the
mother in that case and her second husband, with whom the
mother had had an affair during her marriage to Presse,
sought to have the mother's new husband declared the
father of the child. The trial court determined that the new
husband was the child's father, and Presse appealed. This
court affirmed the trial court's judgment. See Presse
v. Koenemann, 554 So.2d 403 (Ala.Civ.App. 1988). Our
supreme court reversed this court's judgment, concluding
that the new husband lacked standing to assert his paternity
of a child born of the mother's marriage
to another man. Ex parte Presse, 554 So.2d at 418.
In so holding, our supreme court, among other things,
determined that the public policy arguments in favor of
determining Presse's paternity of the child were "
weightier" than those in favor of the new husband; the
" Moreover, § 26-17-5(b)[, Ala. Code 1975, which
has been repealed but which contained identical language to
§ 26-17-607(b),] provides that, 'In the event two or
more conflicting presumptions arise, that which is founded
upon the weightier considerations of public policy and logic,
as evidenced by the facts, shall control.' It is quite
apparent that the public policy considerations causing
Presse, the husband of the child's mother, to be
considered as her father, are much 'weightier' than
any considerations causing Koenemann (who years later married
the child's mother and received the child into his home)
to be considered a 'presumed father.' Thus, even if
we accepted Koenemann's argument that he literally fits
within the category of 'presumed father,' it is clear
that that presumption in his favor would be transcended by
the 'weightier' presumption in favor of Presse; it is
not logical that two men could be presumed to be the
child's father. The presumption in favor of Presse is an
ancient one, supported by logic, common sense, and
Ex parte Presse, 554 So.2d at 412.
relying on Ex parte Presse, supra, the mother
contends that the presumption in favor of Herbert's
paternity should outweigh the presumption in favor of
Kimbrell's paternity solely on the basis of Herbert's
status as her husband (by virtue of the fact that her
marriage to Kimbrell was invalid). However, Ex parte
Presse, supra, did not hold that in all circumstances,
and regardless of the facts of individual cases, a
presumption in favor of the mother's husband was to
prevail over that in favor of another presumed father.
Rather, in Ex parte Presse, it was held that the
public-policy considerations in favor of Presse's
paternity, which arose from the fact that he was married to
the mother when the child was born, under the facts of that
case prohibited the new husband from challenging the
determination of Presse's paternity made in the judgment
divorcing Presse and the mother.
facts of this case are unusual. The mother has sought to
terminate the child's relationship with Kimbrell based on
the legal technicality of her own failure to divorce her
first husband. The materials submitted to this court by the
mother indicate that Kimbrell, the only father the child has
ever known, has fought to maintain his relationship with the
child. The mother has failed to present any evidence
indicating that there is any relationship between Herbert and
the child or that there exists a logical or public-policy
argument in favor of preserving Herbert's status as the
father of her child, who was undisputedly born of her
relationship with and purported marriage to Kimbrell, albeit
while she remained married to Herbert. It is clear that,
regardless of the invalidity of the mother's marriage to
Kimbrell because of the mother's failure to secure a
divorce from Herbert, the familial relationship between the
child and Kimbrell is the weightier consideration in terms of
public policy, logic, and the best interests of the child.
A writ of mandamus is a drastic and extraordinary remedy and
should be granted only where a party demonstrates that the
trial court has abused its discretion and demonstrates that
the party has a clear right to relief." Williams v.
Fogarty, 727 So.2d 831, 833 (Ala.Civ.App. 1999). In
order to demonstrate a right to relief, the mother was
required to demonstrate
that the trial court abused its discretion in determining
that the presumption in favor of Kimbrell's paternity
should control under the facts of this case; given the facts
of this case, we conclude that the mother has failed to do
so. The mother has failed to demonstrate a clear legal right
to the relief she has requested.
Kimbrell's motion to dismiss the mother's petition
for a writ of mandamus.
Thomas, Moore, and Donaldson, JJ., concur.
Section 26-17-607(a) provides:
" Except as otherwise provided in subsection
(b), a presumed father may bring an action to disprove
paternity at any time. If the presumed father persists in
his status as the legal father of a child, neither the
mother nor any other individual may maintain an
action to disprove paternity."
This court has not been asked to reach the
issue whether the presumption set forth in §
26-17-204(a) applies when the mother of the child has
committed bigamy or has in advertently been married to more
than one man at the same time. This court's opinion
should not be read as indicating that the presumption does
apply in favor of the first man she married in such
situations. Rather, given the lack of argument on the issue
whether that presumption should apply under the facts of this
case, we decline to address the issue and have instead
decided, for the purposes of resolving this mandamus
petition, to address the issue as it was submitted to this
court by the mother.
Kimbrell, in response to the mother's
petition for a writ of mandamus, submitted to this court much
of the evidence presented to the trial court on the issue of
paternity and referenced in the trial court's February
10, 2015, order. Among that documentation was the transcript
of the hearing, which indicated that, although Herbert
acknowledged that he had not sought to intervene as a party
and that he could not possibly be the biological father of
the child, he wanted to persist in the presumption of
paternity that arose as a result of his marriage to the
mother. The mother's testimony indicated that she had
resumed her relationship with Herbert and wanted to
relocate with the child to Missouri to live with Herbert. The
mother acknowledged that the child has a loving relationship
with Kimbrell. However, the mother admitted that she wanted
to deprive Kimbrell of his relationship with the
" Q. And one of the things you want not to
happen here is [Kimbrell] to have custody of [the child],
" [THE MOTHER]: Yes.
" Q. You want to be able to take [the child]
away from [Kimbrell] and him have no contact [sic] and you
move to Missouri, isn't that your goal?
" [THE MOTHER]: Yes."
The relevant portion of the February 10,
2015, order actually states that the " plaintiff"
has persisted in the presumption of paternity. The mother was
the plaintiff below, and Kimbrell was the defendant. It
appears that the trial court made a typographical error and
intended to state that Kimbrell has persisted in his
presumption of paternity.
In some parts of her argument, the mother
contends that only Herbert is the child's presumed father
and that Kimbrell is a " third party." The
materials the mother submitted to this court do not support