Rel: January 13, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________
2210366 _________________________
P.F.-T.
v.
M.T.
Appeal from Montgomery Circuit Court (DR-21-900034)
PER CURIAM.
This appeal involves issues of child custody arising from the
dissolution of a same-sex marriage. P.F.-T. ("the spouse") appeals from a
divorce judgment entered by the Montgomery Circuit Court ("the trial
court") divorcing her from M.T. ("the mother") and denying her an award 2210366
of custody of M.A.T., the mother's child ("the child"), born in March 2013.
We affirm.
Procedural History
In January 2021, the mother filed a petition requesting that the
trial court divorce the parties based on incompatibility of temperament.
The spouse filed an answer to the mother's divorce petition in which she
addressed the mother's allegations and alleged that the child had been
intended to be the child of both parties. After the mother filed an
amended divorce petition, the spouse filed an amended answer and a
counterclaim for a divorce in which, among other things, she sought an
award of custody of the child.
The trial court held a trial in November 2021, and the parties
submitted briefs for the trial court's consideration. In December 2021, the
trial court entered a judgment that, in pertinent part, divorced the
parties based on incompatibility of temperament and denied the spouse's
request for custody of the child. The spouse timely filed a notice of appeal.
Facts
The parties began a romantic relationship in 2008. The mother,
who was then a member of the armed services of the United States, was
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deployed to Iraq in 2009; when she returned in 2010, she and the spouse
began residing together in North Carolina. The mother testified that she
had been attempting to conceive a child before meeting the spouse. When
she became romantically involved with the spouse, the mother testified
that she had no intent of sharing a child with anybody because, she said,
she "didn't need anybody to help [her] raise that child; [she] just wanted
a child." The mother further testified that the spouse had "c[o]me along
at the beginning" when "[the mother] [was] trying to have a child, and it
was nice …."
The spouse testified that she and the mother began looking for
sperm banks and registered sperm donors together but found that
process to be very expensive. She and the mother testified that the
mother had tried unsuccessfully to become pregnant with one individual
before the beginning of her relationship with the spouse. After they began
their relationship, the mother and the spouse invited a male
acquaintance to move into their residence and impregnate the mother,
but the mother's attempts at becoming pregnant with that male friend
were also unsuccessful. Another friend of the mother, J.B., offered to help
her get pregnant. With the spouse's consent, the mother accepted J.B.'s
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offer and had sexual intercourse with him and became pregnant. The
spouse testified that she had had no issue with the mother's having
sexual intercourse with J.B., because, she said, she wanted to have a
child with the mother and to be a family together.
During the mother's pregnancy, the spouse attended doctor's
appointments and prenatal classes with the mother, the parties had a
baby shower, and the parties participated in a maternity photo shoot. In
March 2013, the mother gave birth to the child and the spouse was
present. The spouse's name was not put on the birth certificate at that
time, nor was it subsequently added.
In July 2014, the parties were married in the District of Columbia
because that jurisdiction was one of few in the United States that then
allowed same-sex marriage. The mother testified that, if she had been
allowed, she might have married the spouse sooner. After giving birth to
the child, the mother returned to work while the spouse, who was not
working at the time, stayed at home and took care of the child. The child
referred to the mother as "mommy" and to the spouse as "other mommy."
The mother testified that the spouse was listed as the child's guardian in
school and medical records because, she testified, there was only one
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space for "mother." According to her testimony, the mother believes that
child views the spouse as a parent and considers the spouse's family as
his family.
In 2016, the spouse left the marital residence in North Carolina and
went to Alabama to take care of her mother. That same year, the mother
and the child followed the spouse to Alabama. The parties and the child
lived together in Alabama until the parties separated in 2019. The spouse
moved in with a man, B.W.M., and became pregnant with B.W.M.'s child.
When asked about this at trial, the spouse testified that she did not
consider this adultery even though it occurred during the parties'
marriage because, she stated, the parties had been in an "open
relationship."
After the parties' separation, the spouse would spend time with the
child at the mother and child's residence in Alabama and care for the
child every other weekend. The mother testified that she was angry at
the spouse and did not want the child to spend time with the spouse. Her
anger, she said, arose from the spouse leaving her to be with B.W.M. after
the mother would not agree to an arrangement whereby the spouse would
become pregnant with B.W.M.'s child and have him serve as a father
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figure to the spouse’s child. The spouse testified that she had regularly
spent time with the child until the child turned seven years old, which is
when the mother began prohibiting the spouse from visiting with the
child.
Analysis
On appeal, the spouse contends that the trial court erred when it
refused to consider her a presumptive parent of the child and award her
custody of or visitation with the child. She argues that the presumptions
of paternity set forth in § 26-17-204, Ala. Code 1975, as part of the
Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala.
Code 1975, should extend to women same-sex and marriages. That
section provides, in pertinent part:
"A man is presumed to be the father of a child if
"…
"(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."
§ 26-17-204(a)(5), Ala. Code 1975.
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The spouse concedes that § 26-17-204, on its face, does not apply to
her because she is a woman who was in a same-sex marriage, noting in
her appellate brief that, "because Alabama has not extended this
presumption [of paternity] to apply to same-sex couples, [the spouse] has
no legal rights to her child." She further acknowledges that "[n]o
specification is made within [§ 26-17-204] to children born to same-sex
couples, who conceive a child within their relationship, subsequently
marry, and where a female holds the child out as her own [and]
establishes a significant parental relationship with the child by providing
emotional and financial support for the child." However, she argues that,
in light of Obergefell v. Hodges, 576 U.S. 644 (2015), § 26-17-204 is
unconstitutional because it does not apply to women in same-sex
marriages and should be judicially amended to extend a presumption of
maternity to her. We cannot reach this argument because we conclude
that she failed to preserve the argument for appeal.
It is axiomatic that "[t]his Court cannot consider arguments raised
for the first time on appeal; rather, our review is restricted to the
evidence and arguments considered by the trial court." Andrews v.
Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). To preserve a challenge
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to the constitutionality of a statute, an appellant must have specified to
the trial court which statute he or she is challenging and have made
specific arguments to the trial court explaining which constitutional
rights the statute violates and how it violates them. See Ex parte J.W.B.,
230 So. 3d 783, 790-92 (Ala. 2016). See also Alabama Power Co. v. Turner,
575 So. 2d 551, 553 (Ala. 1991) ("[T]o challenge the constitutionality of a
statute, an appellant must identify and make specific arguments
regarding what specific rights it claims have been violated.").
Our review of the record discloses that the spouse never argued to
the trial court that § 26-17-204 is unconstitutional because it does not
apply to women who are or were in same-sex marriages. Indeed, at no
point, either before the trial, during the trial, or in a postjudgment filing
did the spouse ever contend to the trial court that that section, which she
acknowledges to this court bars, on its face, her attempt to be considered
a presumed mother of the child, violates any provision of the United
States Constitution, such as the Due Process Clause or the Equal
Protection Clause, nor did she explain to the trial court how that section
violated any constitutional provision. As a result, we conclude that the
spouse has not preserved for appeal her contention that § 26-17-204 is
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unconstitutional and should be judicially amended to extend a
presumption of maternity to her.
The dissent focuses largely on § 26-17-106, Ala. Code 1975, a part
of the AUPA, which provides that "provisions of [the AUPA] relating to
determinations of paternity apply to determinations of maternity." The
record does reflect that, in a brief to the trial court, the spouse argued
that, pursuant to § 26-17-106, the trial court should apply § 26-17-204 in
a gender-neutral manner to determine that she is a legal mother of the
child. Although the dissent largely adopts this argument, it does so
despite the fact that the spouse does not make that argument to this court
on appeal. Indeed, in her appellate brief, the spouse fails to cite § 26-17-
106, and she makes no argument that that statute requires a trial court
that is making a determination of maternity to apply the presumptions
set forth in § 26-17-204 in a gender-neutral manner. Instead, as discussed
above, the spouse's brief to this court takes a different position --
acknowledging that § 26-17-204 does not apply to her and arguing that
we must judicially expand the language of the statute to apply to her. In
short, the dissent constructs an argument for the spouse that she does
not make to this court, a practice in which this court is not permitted to
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engage. See Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124
n.8 (Ala. 2003).
Conclusion
Having failed to raise below the argument that she makes on
appeal, and having failed to raise in this court the argument that she
made below, we conclude that the spouse has failed to preserve the
argument that she presses here. For this reason, we affirm the trial
court's judgment.
AFFIRMED.
Moore, Edwards, and Fridy, JJ., concur.
Thompson, P.J., dissents, with opinion which Hanson, J., joins.
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THOMPSON, Presiding Judge, dissenting.
I respectfully dissent.
According to the biological mother, M.T. ("the biological mother"),
she and P.F.-T. ("the spouse") were in a romantic partnership when the
child was conceived with J.B. The spouse testified that she had no issue
with the biological mother having intercourse with J.B. because, she
says, she wanted to raise a child with the biological mother and be a
family together.
During the biological mother's pregnancy, the spouse attended
doctor's appointments and prenatal classes with the biological mother,
and they both participated in a baby shower and posed for a maternity
photo shoot together. When the child was born in March 2013, the spouse
was present for the birth. At the time of the child's birth, the couple could
not be legally married in North Carolina, where they resided. The
spouse's name was not placed on the child's birth certificate.
In July 2014, the couple traveled to the District of Columbia so that
they could, as a same-sex couple, legally marry. After the child's birth,
the spouse cared for the child while the biological mother worked. The
child referred to the biological mother as "mommy" and the spouse as
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"other mommy." The spouse took the child to doctor's appointments and
attended the child's school events. According to her testimony, the
biological mother believes that the child views the spouse as a parent and
considers the spouse's family to be his family.
In 2016, the spouse moved to Alabama to take care of her mother.
That same year the biological mother and the child followed the spouse
to Alabama. They lived together as a family in Alabama until the couple
separated in 2019.
After the separation, the spouse would spend time with the child at
the marital residence in Alabama and care for the child every other
weekend. The biological mother testified that she became angry with the
spouse and did not want the child to spend time with the spouse. The
spouse testified that she had regularly spent time with the child until the
child turned seven years old, when the biological mother stopped
allowing the spouse to visit with the child.
On January 22, 2021, the biological mother filed her complaint for
a divorce from the spouse based on an incompatibility of temperament.
In her divorce complaint, the biological mother stated that "there were
no children born of the marriage."
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In her initial answer to the divorce complaint, the spouse asserted
that she and the biological mother were legally married on July 31, 2014,
in Washington, D.C., and that they had separated in January 2019. She
claimed that the child was born before the marriage but was intended to
be the couple's child. She claimed that the child "called [her] 'mommy' as
well." After the biological mother amended her complaint, the spouse
amended her answer, seeking an award of "physical and legal custody" of
the child and an award of "specific custodial periods with the child."
Prior to the hearing in the divorce action, trial briefs were
submitted by the parties on the issue of parentage. In her trial brief, the
spouse argued that the provisions related to a determination of paternity
under the Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et
seq., Ala. Code 1975, should apply equally to same-sex couples. She also
cited to numerous cases from other jurisdictions in which courts had
applied the presumptions of paternity in their version of the Uniform
Parentage Act ("UPA") to same-sex couples. The spouse's trial brief also
asserted that "[t]hough the [AUPA] does not specifically address children
born of same-sex couples, it does address the determination of maternity,
13 2210366
stating that 'provisions of this chapter relating to determinations of
paternity apply to determinations of maternity. ' "
A trial was conducted during which the trial court heard testimony
from the biological mother and the spouse. At the close of testimony, the
trial judge stated:
"I do find that when the child was conceived, it is the Court's opinion that he was conceived with the intention of you all being a family, of you all both mothering the child. And in that case, it is the court's belief that there should be some rights in terms of visitation and some child support and things like that, just like I normally would do with any other couple, because I see you all as any other couple."
The trial judge went on to say:
"[O]ne of the most important things that I do is what's in the best interests of the child. And I believe that if the child grew up seeing [the spouse] as his mother and has formed a bond with her, it is in his best interests to continue that bond."
On December 23, 2021, the trial court entered a final judgment in
the divorce action in which it found that "there is no authority to award
custody or visitation in this case. The court sympathizes with the plight
of the non-biological mother. However, the Court carefully reviewed the
applicable law and there is no legal authority to award the non-biological
mother custody rights."
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On appeal the spouse argues, as she has done at every step of this
litigation, that the presumption of paternity provision of the AUPA found
in § 26-17-204, Ala. Code 1975, should be applied equally to same-sex
couples, especially in light of the United States Supreme Court's decision
in Obergefell v. Hodges, 576 U.S. 644 (2015), which legalized same-sex
marriages throughout the country. The spouse argues that the trial court
failed to provide same-sex couples the same rights as opposite-sex couples
when it comes to determining parentage.
The principal function of the AUPA is to provide a procedure for
establishing the paternity of a child. See Ritter v. State, 494 So. 2d 76
(Ala. Civ. App. 1986). The ultimate objective of the AUPA is to "promote
full equality for all children." Ex parte Presse, 554 So. 2d 406, 411 (Ala.
1989). "A child born to parents who are not married to each other has
the same rights under the law as a child born to parents who are married
to each other." § 26-17-202, Ala. Code 1975.
15 2210366
Under the AUPA, our presumption of paternity states that there
are six ways in which "a man is presumed to be the father of a child." §
26-17-204(a), Ala. Code 1975. 1
1Section 26-17-204, Ala. Code 1975, entitled "Presumption of paternity," 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:
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"(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; or
"(C) he is otherwise obligated to support the child either under a written voluntary promise or by court order;
"(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 [of the AUPA]. 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."
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The AUPA also specifically states in § 26-17-106, Ala. Code 1975,
that the "provisions of this chapter relating to determinations of
paternity apply to determinations of maternity." Pursuant to § 26-17-
201(a) of the AUPA, the mother-child relationship may be established by
giving birth, see § 26-17-201(a)(1), by adoption, see § 26-17-201(a)(3), or
by an adjudication of maternity, see § 26-17-201(a)(2).
"[J]ust as statutes dealing with the same subject are in pari materia
…, parts of the same statute are in pari materia and each part is entitled
to equal weight." Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So.
2d 1378, 1381 (Ala. 1979). "Statutes should be construed together so as
to harmonize the provisions as far as practical." Ex parte Jones Mfg. Co.,
589 So. 2d 208, 211 (Ala. 1991)(citing Siegelman v. Folmar, 432 So. 2d
1246 (Ala. 1983)). "Because the meaning of statutory language depends
on context, a statute is to be read as a whole." Ex parte Jackson, 614 So.
2d 405, 406 (Ala. 1993). A statute is presumed to have been enacted with
a "meaningful purpose." Adams v. Mathis, 350 So. 2d 381, 386 (Ala.
1977). "The legislature will not be presumed to have done a futile thing
in enacting a statute." Ex parte Watley, 708 So. 2d 890, 892 (Ala. 1997).
18 2210366
Other state courts, when interpreting presumption-of-paternity
statutes that are worded similarly to our presumption-of-paternity
statute, i.e., statutes that concentrate on questions of paternity rather
than maternity, have construed those statutes in a gender-neutral
manner. See In re D.A.A.-B., [No. 08-21-00058-CV, Aug. 20, 2022] ___
S.W.3d ___, ___ (Tex. App. 2022)(holding that the former wife of the birth
mother of the child was presumed parent of that child); Treto v. Treto,
622 S.W.3d 397 (Tex. App. 2020)(affirming trial court's judgment holding
that the same-sex spouse of mother was child's parent and ordering the
spouse to pay child support); Chatterjee v. King, 280 P.3d 283 (N.M.
2012) (holding that the fact that former partner was not child's biological
child or adoptive mother did not preclude former partner from
establishing that she was the child's "natural mother "); Elisa B. v.
Superior Court of El Dorado Cnty., 37 Cal. 4th 108, 117 P.3d 660 (2005)
(holding that a child may have two parents, both of whom are women);
and In re Karen C., 101 Cal. App. 4th 932, 124 Cal. Rptr. 2d 677 (2002)
(holding that a woman involved in a same-sex relationship who holds out
a child as her own can be adjudicated the mother of the child). The
spouse, in her brief on appeal, directs this court to McLaughlin v. Jones,
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243 Ariz. 29, 401 P.3d 492 (2017); Wendy G-M v. Erin G-M., 45 Misc. 3d
574, 985 N.Y.S.2d 845 (N.Y. Sup. Ct. 2014); and Hunter v. Rose, 463
Mass. 488, 975 N.E. 2d 857 (2012), as examples of courts extending their
state's paternity presumption to same-sex couples who conceived a child
through assisted reproduction.
My research has revealed no other court of any other state that has
interpreted the gender-neutrality provision of the UPA to the contrary of
those authorities cited. Section 26-17-901 of the AUPA states: "In
applying and construing this uniform act, consideration must be given to
the need to promote uniformity of the law with respect to its subject
matter among states that enact it."
To promote the uniformity of the statute and to find a "meaningful
purpose," see Adams, 350 So. 2d at 386, on the part of our legislature in
enacting the statute, § 26-17-106 should be given its full measure of
operation. The result of applying the provision found in § 26-17-106 to
the language of § 26-17-204 is to make that section gender neutral.
Section 26-17-106 provides ample authority for the trial court to have
determined the maternity of the child in this case. Because the trial court
stated in its final judgment that there was "no legal authority to award
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the non-biological mother custody rights[,]" I would reverse the trial
court's judgment as to that finding and remand this case to the trial court
to apply the AUPA in a gender-neutral manner to determine if the spouse
carried her burden of proving parentage under § 26-17-204(a)(4), Ala.
Code 1975, or under § 26-17-204(a)(5), Ala. Code 1975.
On appeal, the spouse also argues that failing to extend the
paternity provisions of the AUPA to same-sex couples would be
inconsistent with the Fourteenth Amendment's equal protection and due
process clauses. Although I find that argument to have validity, I do not
address it because the language of the statute enables it to be
constitutionally applied equally to same-sex couples. 2
2I note that in Smith v. Pavan, 505 S.W.3d 169, 177 & 178 (Ark. 2016), the Arkansas Supreme Court held that an Arkansas statute designating persons to appear on a child's birth certificate "pass[ed] constitutional muster" because "the statute center[ed] on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife" and, consequently, did "not rule afoul of Obergefell [v. Hodges, 576 U.S. 644 (2015)]." The United States Supreme Court, in a per curiam opinion, summarily reversed the Arkansas Supreme Court's judgment, holding that such differential treatment of same-sex couples infringed upon "Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.' " Pavan v. Smith, ___ U.S. ___, ___, 137 S.Ct. 2075, 2077 (2017)(quoting Obergefell, 576 U.S. at 670). Observing that Arkansas used a birth certificate to give married parents a form of legal recognition, which they could use to 21 2210366
" ' " 'We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within constitutionally imposed limitations. ' " ' Lunsford v. Jefferson Cnty., 973 So. 2d 327, 330 (Ala. 2007) (quoting Town of Vance v. City of Tuscaloosa, 661 So. 2d 739, 742-43 (Ala. 1995) (other citation omitted))."
Magee v. Boyd, 175 So. 3d 79, 107 (Ala. 2015).
" '"[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. " '
" '[Alabama State Fed'n of Labor v. McAdory,] 246 Ala. [1,] 9, 18 So. 2d [810,] 815 (citation omitted). We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits. Id. '"
Kirby v. State, 899 So. 2d 968, 972-73 (Ala. 2004) (quoting Monroe v.
Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000)).
Hanson, J., concurs.
enroll a child in school or to make medical decisions, that is not available to unmarried parents, the Supreme Court held that Arkansas could not, "consistent with Obergefell, deny married same-sex couples that recognition." Pavan, ___ U.S. at ___, 137 S. Ct. at 2079. 22