Opinion
Civ. 4282.
July 11, 1984. Rehearing Denied August 1, 1984. Certiorari Denied August 31, 1984 Alabama Supreme Court 83-1261.
Appeal from the Circuit Court, Morgan County, William C. Bibb, J.
Judge C. Bennett McRae was incorrectly listed in 455 So.2d bound volume.
Sherman B. Powell, Jr. of Powell Powell and J. Tilden Dillard, Decatur, for appellant.
Jack Caddell, Decatur, for appellee.
This child custody case involves the same issue resolved in our recent decision of Davis v. Sparks, [Ms. May 30, 1984] (Ala.Civ.App. 1984). That issue is whether the circuit court's original jurisdiction encompasses an action by a putative father to determine the paternity of an illegitimate child.
In his complaint plaintiff, Tommy Eddy, alleged that he is the father of Christy Lee Lyle, a minor child born to defendant, Jean E. Lyle, on February 24, 1980, and that Ms. Lyle was not married at the time that Christy was born. He also alleged that since the child was born, he has visited her, claimed her as his own, and contributed to her support.
Presently, the child is in the custody of her maternal grandmother, who, according to the plaintiff, has on several occasions threatened to not let him see Christy anymore. Plaintiff asked the court to order a blood test, adjudge him to be the natural father of Christy, and to award him either custody or specific visitation rights.
On March 3, 1984, the trial court dismissed the plaintiff's action, giving as its reason "that the application by a putative father to recognize or legitimate a child born out of wedlock is not within the original jurisdiction of the Circuit Court." Subsequently, on May 30, 1984, in the Davis v. Sparks decision, in an opinion issued on rehearing, our distinguished colleague Judge Scruggs made the following observation:
"A recent addition to the Alabama Code confers concurrent jurisdiction in paternity actions upon juvenile courts, district courts, and circuit courts. § 38-10-7, Code 1975. This was a circuit court case. It was filed in a proper forum."
On the basis of this authority, the decision below is due to be reversed.
The appellee has requested an attorney's fee for representation on appeal. The request is denied.
REVERSED AND REMANDED.
WRIGHT, P.J., and BRADLEY, J., concur.
ON REHEARING
In her application for rehearing appellee, Jean E. Lyle, through able and distinguished counsel, contends this court erred when it construed section 38-10-7, Ala. Code (1975), to allow the commencement of this action in circuit court. Appellee in part contends such construction dilutes and negates the intent of the recently enacted Alabama Uniform Parentage Act.
The Alabama Uniform Parentage Act, which did not become effective until after this suit was commenced, requires in section 10 (a) that cases under the Act be brought "in the juvenile or family court division of the district or circuit court. . . ." Under section 22 of the Act, any earlier laws or parts of laws in conflict with the Act are expressly repealed. Accordingly, our construction of section 38-10-7 cannot be said to dilute or negate the Act because in future cases governed by the Act, any earlier inconsistent code sections will be treated as repealed by section 22.
OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.
WRIGHT, P.J., and BRADLEY, J., concur.