April 24, 2015
from Montgomery Circuit Court. (DR-13-900546).
Appellant: John T. Robertson IV of Henslee, Robertson, Strawn
& Sullivan, L.L.C., Gadsden.
Appellee: D. Jason Britt, Brandon C. Stone, and J.C. Webb IV
of Stone & Britt, LLC, Millbrook.
Mack (" the husband" ) appeals from a judgment of
the Montgomery Circuit Court divorcing him from Maritza Mack
(" the wife" ) insofar as it determined that he is
estopped by an affidavit he signed on August 24, 2009, from
denying his paternity of E.M., a boy to whom the wife had
given birth in March 2005. We reverse and remand with
material facts are undisputed. The wife did not meet the
husband until sometime in 2007, approximately one and onehalf
years after the birth of E.M., which precludes him from being
the biological father of E.M. Moreover, both parties agree
that the husband is not the biological father of E.M. At
trial, the wife identified
E.M.'s biological father as a man who had raped her and
with whom she had not had any contact since the rape. That
man's last known location was a prison in Pennsylvania.
The wife had not sought to terminate that man's parental
rights. After meeting in 2007, the husband and the wife began
a romantic relationship and began living together. In 2008,
they became engaged to marry. On August 24, 2009, the husband
and the wife went to the Center for Health Statistics of the
Alabama Department of Public Health in Montgomery and told
the clerk that they wanted to add a father to E.M.'s
birth certificate. The clerk gave them a form containing two
affidavits, one of which was to be signed by the wife and the
other by the husband. They signed the affidavits before a
notary public who notarized their signatures and returned the
form containing the two affidavits to the clerk. The
affidavit singed by the husband stated:
" I, being first duly sworn, acknowledge that I am the
natural father of this child and I understand that execution
of this document creates a legal finding of paternity which
will affect my legal rights under the laws of Alabama; I
understand that any signatory has the right to rescind this
affidavit within the earlier of 60 days or the date of an
administrative or judicial proceeding relating to the child
including a proceeding to establish child support; I
understand that after the 60 day period, this document may be
challenged in court only on the basis of fraud, duress, or
material mistake of fact with the burden of proof upon the
challenger, and the legal responsibilities including child
support obligations arising from the acknowledgment may not
be suspended during the challenge except for good cause
shown; I understand that this affidavit may be used to
include my name as the natural father on the child's
birth certificate; I understand that the document once signed
and notarized may be used to obtain an order of financial and
medical support and that, absent a court order to the
contrary, I will be legally responsible for providing said
support until the child reaches the age of majority, dies,
marries, or becomes otherwise emancipated; I understand that
I may be responsible for payment of birth expenses; I have
received and read or have had read to me written materials
that explain the rights and responsibilities that signing
this affidavit confers upon me and I understand these rights
and responsibilities and voluntarily accept them."
husband did not rescind the affidavit within 60 days after he
signed it. E.M.'s birth certificate was amended to
indicate that the husband is E.M.'s father. The husband
and the wife married in April 2011 and separated in August
2013, the husband sued the wife for a divorce and sought a
determination that he is not the father of E.M. The wife
counterclaimed for a divorce and sought a determination that
the husband is the father of E.M. by virtue of the affidavit
he signed on August 24, 2009. In response, the husband
asserted, among other things, that he is not the father of
E.M. by virtue of that affidavit because it does not
constitute a valid acknowledgment of paternity pursuant to
§ 26-17-302, Ala. Code 1975. More specifically, the
husband argued that the affidavit is not a valid
acknowledgment of paternity because, he said, it does not
state (1) that E.M. does not have a presumed father or that
the husband is E.M.'s presumed father, (2) that E.M. does
not have another acknowledged or adjudicated father, (3) that
there either has or has not been genetic testing, and (4)
that, if there has been genetic testing, the husband's
claim of paternity is consistent with the results of that
parties resolved all issues other than the issue whether the
husband is the father of E.M., which was tried at a bench
trial. Following the trial, the trial court entered a divorce
judgment that, among other things, stated:
" 5. That on August 24, 209 the Husband signed an
Affidavit of Paternity with the State of Alabama swearing
that he was the natural father of [E.M.]. He did not rescind
the affidavit within the time provided by law. He admitted he
was competent to sign, not under the influence of alcohol or
drugs, there was no fraud and that he was not operating under
a mistake of fact. Since that time he has treated [E.M.] like
his son and listed him on military records as his son. The
Husband is estopped to deny that [E.M.] is his child."
husband filed a postjudgment motion, which the trial court
denied. The husband then timely appealed.
" '" [W]hen a trial court sits in judgment on
facts that are undisputed, an appellate court will determine
whether the trial court misapplied the law to those
undisputed facts." ' Harris v. McKenzie,
703 So.2d 309, 313 (Ala. 1997) (quoting Craig Constr.
Co., Inc. v. Hendrix, 568 So.2d 752, 756 (Ala. 1990)).
The ore tenus 'standard's presumption of correctness
has no application to a trial court's conclusions on
questions of law.' Beavers[ v. Walker Cnty.],
645 So.2d  at 1372 [(Ala. 1994)]. '[O]n appeal, the
ruling on a question of law carries no presumption of
correctness, and this Court's review is de novo.'
Ex parte Graham, 702 So.2d 1215, 1221 (Ala.
Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869,
871 (Ala. 1999).
husband first argues that the trial court erred in
determining that he is estopped from denying that he is the
father of E.M. by virtue of the affidavit he signed on August
24, 2009. Specifically, he argues that that affidavit does
not constitute a valid acknowledgment of paternity pursuant
to § 26-17-302 because, he says, it does not state: (1)
that E.M. does not have a presumed father or that the husband
is E.M.'s presumed father, (2) that E.M. does not have
another acknowledged or adjudicated father, (3) that there
either has or has not been genetic testing, and (4) that, if
there has been genetic testing, the husband's claim of
paternity is consistent with the results of that testing. We
pertinent part, § 26-17-302 provides:
" (a) An acknowledgment of paternity must:
" (3) state that the child whose paternity is being
" (A) does not have a presumed father or the man
executing the acknowledgment is the presumed father; and
" (B) does not have another acknowledged or
" (4) state whether there has been genetic testing and,
if so, that the acknowledging man's claim of paternity is
consistent with the results of the testing ...."
(Emphasis added.) The following principles govern our
interpretation of a statute:
" The fundamental rule of statutory construction is to
ascertain and give effect to the intent of the legislature in
enacting the statute. Words used in a statute must be given
their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to
that language to mean exactly what it says. If the language
of the statute is unambiguous, then there is no room for
judicial construction and the clearly expressed intent of the
legislature must be given effect. Tuscaloosa County
Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa
County, 589 So.2d 687 (Ala. 1991)."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602
So.2d 344, 346 (Ala. 1992). " Ordinarily 'must'
is regarded as mandatory in meaning." Ex parte
Stephens, 259 Ala. 361, 363, 66 So.2d 901, 903 (1953).
Because the word " must" is ordinarily mandatory in
meaning, we conclude that § 26-17-302(a) makes the
inclusion of all the information specified in that Code
section mandatory in an acknowledgment of paternity and that,
because all the information specified for inclusion in such
an acknowledgment by that Code section is not included in the
affidavit signed by the husband on August 24, 2009, it does
not constitute a valid acknowledgment of paternity under that
Code section. Therefore, we reverse the judgment of the trial
court insofar as it determined that the affidavit the husband
signed on August 24, 2009, estops the husband from denying
that he is the father of E.M.
by holding that the trial court erred in determining that the
affidavit the husband signed on August 24, 2009, estops him
from denying that he is the father of E.M., we do not hold
that the husband is not the legal father of E.M. We note that
§ 26-17-608, Ala. Code 1975, provides that a trial court
may determine that a presumed father is estopped from denying
that he is the father of a child and specifies criteria for
the trial court to consider in making that determination. We
further note that § 26-17-204, Ala. Code 1975, provides,
in pertinent part:
" (a) A man is presumed to be the father of a child if:
" (4) after the child's birth, he and the
child's mother have married ... and:
" (B) with his consent, he is named as the child's
father on the child's birth certificate ....
" (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
the affidavit the husband signed on August 24, 2009, does not
constitute a valid acknowledgment of paternity under §
26-17-302 because it fails to include some of the information
required by that Code section, it does state that the husband
" underst[ood] that this affidavit may be used to
include [his] name as the natural father on [E.M.'s]
birth certificate ...." Moreover, it is undisputed that
the husband and the wife married after E.M. was born and that
E.M.'s birth certificate was amended to name the husband
as E.M.'s father on E.M.'s birth certificate after
the husband signed the affidavit on August 24, 2009. That
evidence raises the issue whether the husband is the presumed
father of E.M. under § 26-17-204(a)(4)(B).
addition, we note that the husband gave the following
testimony that raises the issue whether he is the presumed
father of E.M. under § 26-17-204(a)(5):
" Q. [By the wife's counsel:] And from the time that
you met [the wife] to the time that you became engaged you
had a relationship with [E.M.], didn't you?
" A. Yes, sir.
" Q. You treated him like he was your son, didn't
" A. Yes, sir.
" Q. You listed him in your military records as your
son, didn't you?
" A. Yes, sir,
" BY THE GUARDIAN A.D. LITEM:
" Q. Mr. Mack, there's been a lot of talk about
money here. Let's talk about [E.M.]. Tell the Court how
you feel about [E.M.].
" A. I feel very strongly. I love him. I look at him as
being my son. I do want to take care of him and I want to be
in his life.
" Q. Let me ask you this question. Whether you are
determined to be the father based on the Affidavit of
Paternity or you're not determined to be the father
solely based on that, do you still intend and want to have a
relationship with [E.M.] whether it's characterized as
one of a father-son or whether it's characterized as
being just like a father? Would you still be in that role
" A. Yes, sir.
" Q. Why?
" A. Because I care about him. I care about him.
I've been with him since he's been small. I know all
about him. I taught him how to ride a bike. I taught him a
lot of things. I was there for him. I mean, I don't want
it to change. It's just a lot going on right now.
" THE COURT: I do have one other question, and I meant
to ask it earlier when I was asking about the [military's
Basic Allowance for Housing]. Because the child was listed as
your son on the -- with the military, did he receive an ID
" THE HUSBAND: I believe. I believe he did. But I'm
not sure if he has one or not.
" THE COURT: Was he under the TRICARE [insurance]?
" THE HUSBAND: Yes, sir."
we remand the cause with instructions for the trial court to
determine whether the husband is the presumed father of E.M.
and, if so, whether he is estopped from denying that he is
the father of E.M. based on the criteria specified in §
AND REMANDED WITH INSTRUCTIONS.