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

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
_________________________

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_________________________

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
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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,

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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.

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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).

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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
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" ' " '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.
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