P.F.-T. v. M.T.

379 So.3d 436

P.F.-T.

v.M.T.

2210366

Court of Civil Appeals of Alabama.

January 13, 2023

Allie Thompson of Isaak Law Firm, Birmingham, for appellant.

Submitted on appellant’s brief only.

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 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 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 offer and had sexual intercourse with him and became pregnant. The spouse testified that she 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 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 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

[1] 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 and 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.

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, 135 S.Ct. 2584, 192 L.Ed.2d 609 (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.

[2] 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 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 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 ap- peal her contention that § 26-17-204 is unconstitutional and should be judicially amended to extend a presumption of maternity to her.

The dissent focuses largely on § 26-17-106, Ala. Code 1076, 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 statute requires a trial court that is...