Clemons v. Howard, [Ms. 2110744, Apr. 12, 2013] ____ So. 3d ___ (Ala. Civ. App. 2013). This
was an action to determine who owned property owned by two brothers when
they died in 1975 and 1989. Justine Howard brought the action, claiming
to be the only child of Raymond Mitchell. The trial court determined that
she was Raymond's daughter and that she inherited his half interest.
Jean Clemons was determined to be one of two owners of the interest of
the other brother, Jessie Mitchell. The trial court ordered sale for division.
A statute of limitations argument was waived both by failure to include
it in the answer and by failure to argue it on appeal. Thus, the Court
of Civil Appeals was presented with issues of intestate succession when
Raymond died in 1975 and the ownership of the property after Jessie's
will was probated in 1989. There is a useful history of the development
of the law regarding inheritance by children born out of wedlock. The
law at the time of Raymond's death had been declared unconstitutional,
so the Court of Civil Appeals initially considered that ¤ 26-17-103,
part of the 2008 Alabama Uniform Parentage Act, "applies to determinations
of parentage in this state except for matters relating to legitimation
and adoption." In addition to these express exceptions to the AUPA,
the Court of Civil Appeals determines that ¤ 43-8-48(2)b., Ala.
Code 1975, a part of the Probate Code, governs determinations of a relationship
of parent and child for purposes of intestate succession. Thus, the Court
of Civil Appeals holds, the trial court erred in applying the AUPA, and
the Court remands for reconsideration of whether Justine was Raymond's
daughter pursuant to ¤ 43-8-48(2)b.