Opinion
2180796
02-07-2020
Z.W.E. v. L.B.
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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. Appeal from Jackson Juvenile Court
(CS-19-2.01) THOMPSON, Presiding Judge.
Z.W.E., the alleged father ("the alleged father"), appeals from a judgment of the Jackson Juvenile Court ("the juvenile court") dismissing his petition to establish the paternity of the child ("the child") of L.B. ("the mother"), in which he also sought shared custody and/or visitation with the child.
The alleged father filed his petition in the DeKalb Juvenile Court. The mother filed a motion for a change of venue on the ground that the child and she resided in Jackson County. The DeKalb Juvenile Court granted the mother's motion and transferred the action to the juvenile court.
The record, which consists of only 34 pages, indicates the following. On November 19, 2018, the alleged father filed the petition, asserting that he was the father of the child who, at that time, had not yet been born. On February 15, 2019, the mother filed a verified motion to dismiss the alleged father's petition. In her motion, the mother asserted that, on November 14, 2018, she had married Z.A.F. ("the husband"). The child was born on December 26, 2018. The child's birth certificate, a copy of which was attached as an exhibit to the motion to dismiss, indicated that the husband was the child's father. The husband's affidavit was also attached to the motion. In the affidavit, the husband testified that he was the father of the child and that he openly held out the child as his "natural child." He also stated that he "adamantly persist[ed] in [his] status as the legal father" of the child.
After setting forth the applicable law in this matter, the mother argued in her motion that, because the husband persisted in his status as the legal father of the child, his presumption of paternity could not be challenged. Therefore, she said, the alleged father lacked what she referred to as standing and his petition was due to be dismissed.
On April 3, 2019, the alleged father responded to the mother's motion. In his unsworn response, the alleged father stated that he and the mother had been in a "dating relationship" and had "cohabitated" from February 2018 until August 2018 and that the mother became pregnant during that time. He said that the mother and her family had acknowledged that he was the biological father of the child. He asserted that he and the mother had celebrated a "gender reveal" with family and friends in July 2018. The alleged father said that, in mid-November 2018, the mother began refusing to have any contact with his family or with him, and, therefore, he filed the paternity petition.
In the mother's appellate brief, she states that the alleged father's response to her motion to dismiss was unverified. Although the alleged father signed the response, the notary statement indicating that the alleged father had appeared before a notary and had been duly sworn was not signed and no notary seal appears on the document. In his reply brief, the alleged father states that "the copy without the notary signature was inadvertently entered on Alafile without the notary signature and seal." Without citing any authority, the alleged father argues that his signature "serves to aver the facts presented." Because the response was not a sworn document, however, the alleged father's statements do not have the evidentiary effect of testimony. See, e.g., Ex parte Williams, 268 Ala. 535, 539, 108 So. 2d 454, 459 (1958)(holding that an unsworn statement "bears none of the accepted guaranties of truth" and that, when a statement is not made under oath, the maker of the statement "does not make himself liable to the penalties of perjury if the statement be untrue").
In his response to the mother's motion to dismiss, the alleged father stated that, at the February 4, 2019, hearing on the motion to change venue (see note 1, supra), he learned that the mother had married the husband on November 14, 2018. The alleged father stated that the marriage took place after he "had made known his intention to seek DNA testing but four days prior to the filing" of his petition. He claimed that the mother and the husband were in a "dating relationship" for approximately three weeks before they married. He asserted that the husband had been living with another woman until October 2018.
In his response, the alleged father said that, before the child's birth, he had held out the child as his own and had provided financial and emotional support to the mother during her pregnancy. In asking the juvenile court to deny the mother's motion to dismiss, the alleged father stated that he was the biological father of the child and that he "desire[d] to support the child, have a relationship with the child and exercise his parental rights." Additionally, the alleged father argued that the mother's efforts to keep the child from him had violated "his constitutional right to direct and participate in the upbringing of his child."
The record indicates that the juvenile court held a hearing on the mother's motion to dismiss on May 22, 2019. A transcript of that hearing is not included in the record on appeal. We note that, in certifying the adequacy of the record for appeal to this court, the juvenile court stated that "[n]o formal testimony was taken in this matter." On May 23, 2019, the juvenile court entered its judgment dismissing the alleged father's petition. In doing so, the juvenile court found that the mother had been married to the husband for 42 days when the child was born and that, therefore, under Alabama law, the husband is the presumed father of the child. The juvenile court found that the husband had not renounced his presumption of fatherhood and had, in fact, "'adamantly persist[ed]'" in his status as the legal father. Accordingly, the juvenile court determined that the alleged father's petition was due to be dismissed.
On June 6, 2019, the alleged father timely filed a motion to alter, amend, or vacate the judgment. As grounds for his motion, the alleged father maintained, without providing specific examples, that the judgment was "contrary to the evidence," was "contrary to the law," and violated his constitutional right "to direct and participate in the upbringing of his child." In the postjudgment motion, the alleged father did not assert that he had been denied an evidentiary hearing. The alleged father also did not request a hearing on his postjudgment motion. On June 10, 2019, the juvenile court denied that motion. On June 24, 2019, the alleged father appealed from the May 23, 2019, judgment dismissing his petition.
On appeal, the alleged father first contends that the juvenile court erred or abused its discretion in denying his request for an evidentiary hearing. In his response to the mother's motion to dismiss, the alleged father stated that he was entitled to a hearing to present evidence that he had "persisted in his claim to be the legal father." On appeal, he argues that such evidence would have demonstrated that, in addition to the husband, who was the presumed father by virtue of being married to the mother at the time of the child's birth, the alleged father was also a presumed father of the child. Therefore, the alleged father contends that the juvenile court should have weighed those competing presumptions and addressed the petition on its merits.
The juvenile court held a hearing on the mother's motion to dismiss, but, as previously mentioned, there is no transcript of what transpired at that hearing. Therefore, there is nothing in the record to demonstrate that the juvenile court actually "denied" a request for an evidentiary hearing. Furthermore, as mentioned, in his motion to alter, amend, or vacate the judgment, the alleged father did not assert that he had been deprived of an evidentiary hearing.
"Alabama law is well settled that appellate courts do not presume error. '"In order for this court to consider an error asserted on appeal, that
error must be affirmatively demonstrated by the record."' Beatty v. Beatty, 991 So. 2d 761, 765 (Ala. Civ. App. 2008) (quoting Elliott v. Bud's Truck & Auto Repair, 656 So. 2d 837, 838 (Ala. Civ. App. 1995))."Cockrell v. Cockrell, 40 So. 3d 712, 716-17 (Ala. Civ. App. 2009). Because the record does not affirmatively indicate that the juvenile court "denied" the alleged father an opportunity to present evidence, this court will not reverse the juvenile court's judgment on that basis.
Additionally, the factual assertions made by the parties in their respective filings were undisputed, and the juvenile court decided this matter on legal grounds. We observe that, in her motion to dismiss, the mother argued that the alleged father lacked what she called "standing," but which, in these circumstances, is more properly referred to as capacity, to bring the action. See Ex parte Presse, 554 So. 2d 406, 418 (Ala. 1989)("[S]o long as the presumed father persists in maintaining his paternal status," no other man has capacity "to challenge the presumed father's parental relationship."); see also C.L.W. v. Madison Cty. Dep't of Human Res., 170 So. 3d 669, 672 (Ala. Civ. App. 2014)(same). Thus, the alleged father is mistaken in his contention that an evidentiary hearing was necessary for the juvenile court to settle what he said were the "conflicting presumptions" as to who is the child's legal father under the Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala. Code 1975.
The AUPA 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:
"(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;
§ 26-17-204(a), Ala. Code 1975.
"(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."
As the alleged father acknowledges, the right to maintain a paternity action when there is a presumed father is governed by § 26-17-607, Ala. Code 1975, which provides:
"(a) Except as otherwise provided in subsection (b), a presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of
a child, neither the mother nor any other individual may maintain an action to disprove paternity.
"(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence. 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."
The Alabama Comment to § 26-17-607 states:
"Subsection (a) follows Ex parte Presse, 554 So. 2d 406 (Ala. 1989)[,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein. Once the presumed father ceases to persist in his parentage, then an action can be brought. If it is determined that the presumed father is not the biological father and non-parentage is found, a proceeding to adjudicate parentage may be brought under this article."(Emphasis added.)
In his appellate brief, the alleged father does not challenge the husband's assertion that the husband is the presumed father under § 26-17-204(a)(1), i.e., that the husband was married to the mother at the time the child was born. Instead the alleged father argues that he, too, should be considered a presumed father of the child, and, he says, the juvenile court must permit him to present evidence to support that presumption. In his brief, the alleged father does not specify which provision of the AUPA confers upon him the status of a presumed father. However, he contends that he held out the child as his own since the child's conception and that he provided both financially and emotionally for the mother and the child during the mother's pregnancy. Thus, it appears that the alleged father is of the belief that his presumption as the child's father arose under § 26-17-204(a)(5).
The alleged father supports his contention that he is a presumed legal father of the child by referring to "AL. HB 314: ACT 189, May 2019," i.e., Act No. 2019-189, Ala. Acts 2019 ("the Act"), which the Alabama Legislature passed in May 2019. In his brief, the alleged father states that the Act bans abortion and "sets out that as early as within weeks a fetus has a heartbeat and should be recognized as viable." The alleged father then concludes, without further explanation, that, "[u]nder this premise the [alleged father] has already been active in the life of the child." That is the extent of the authority and the legal argument that the alleged father has put forth to show that, under Alabama law, there is a presumption that he is the child's legal father under the AUPA.
The Act is codified at § 26-23H-1 et seq., Ala. Code 1975. It imposes a near-total ban on abortions in Alabama. On October 29, 2019, the United States District Court for the Middle District of Alabama entered a preliminary injunction enjoining enforcement of the Act until the federal court resolves in full the issue of the constitutionality of the Act. Robinson v. Marshall, [Civil Action No. 2:19CV365-MHT] ___ F. Supp. 3d ___(M.D. Ala. 2019).
"Under Rule 28, Ala. R. App. P., a party has a duty to cite appropriate legal authority to demonstrate that the trial court erred. '"'[I]t is not the function of [an appellate court] to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.'"' Ex parte Borden, 60 So. 3d 940, 943 (Ala. 2007) (quoting Butler v. Town of Argo, 871 So. 2d 1, 20 (Ala. 2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994))."Nance v. Southerland, 79 So. 3d 612, 620 (Ala. Civ. App. 2010). It is not this court's duty to develop a legal argument for an appellant, especially an argument not presented to the trial court, and, in fact, to do so creates an unfair and untenable position for the appellee who has addressed the issues argued by the appellant. Accordingly, this court declines to develop a legal argument on behalf of the alleged father to reverse the juvenile court's judgment. Moreover, an argument and holding expanding the general statement of the alleged father might result in an expansion of the circumstances pursuant to which a probable biological father is a child's presumed legal father under the AUPA. This court is not willing to reach that far on an argument undeveloped by the interested parties.
Moreover, research reveals no existing authority indicating that a man who may be the biological father of a child may attain the status of a presumptive legal father under the circumstances of this case. In fact, our precedents hold the opposite. In Ex parte Presse, 554 So. 2d 406 (Ala. 1989), our supreme court held that a man claiming to be the biological father of a child conceived and born during the marriage of the child's mother to another man did not have standing under the former AUPA to initiate an action to establish that he was the father of the child, so long as the presumed father persisted in the presumption that he was the father.
In Ex parte Presse, the mother in that case had had an affair with Lynn Koenemann while she was married to Norman Presse. A child was born during the marriage, and the mother and Presse lived together for several years until their divorce. Later, the mother married Koenemann, and she and Koenemann sought to have Koenemann's paternity of that child established. The trial court determined that Koenemann was the child's father, and Presse appealed. This court affirmed the trial court's judgment. See Presse v. Koenemann, 554 So. 2d 403 (Ala. Civ. App. 1988). Our supreme court reversed this court's judgment, concluding that Koenemann lacked standing to assert his paternity of a child born of the mother's marriage to another man. Ex parte Presse, 554 So. 2d at 418. In so holding, our supreme court determined that, among other things, the public-policy arguments in favor of determining Presse's paternity of the child were "weightier" than those in favor of determining Koenemann's paternity of the child, explaining:
"Moreover, § 26-17-5(b)[, Ala. Code 1975, which has been repealed but which contained identical language to § 26-17-607(b),] provides that, '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.' It is quite apparent that the public policy considerations causing Presse, the husband of the child's mother, to be considered as her father, are much 'weightier' than any considerations causing Koenemann (who years
later married the child's mother and received the child into his home) to be considered a 'presumed father.' Thus, even if we accepted Koenemann's argument that he literally fits within the category of 'presumed father,' it is clear that that presumption in his favor would be transcended by the 'weightier' presumption in favor of Presse; it is not logical that two men could be presumed to be the child's father. The presumption in favor of Presse is an ancient one, supported by logic, common sense, and justice."Ex parte Presse, 554 So. 2d at 412.
In Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996), our supreme court further explained the holding in Presse, stating:
"The Court in Presse did not base its decision on whether the child was conceived during the marriage, and § 26-17-5(a)(1)[, Ala. Code 1975, the predecessor to § 26-17-204(a)(1)] does not require that the child be conceived during the marriage to make the husband the presumed father. Rather, all that is required, under either caselaw or statute, is that the child be born during the marriage. The Code uses the word 'birth' as the benchmark for establishing presumptions of paternity, not the time of conception. See also Foster v. Whitley, 564 So. 2d 990 (Ala. Civ. App. 1990), in which Whitley sought to intervene in a divorce proceeding, claiming to be the father of a minor child of the marriage, and in which the husband, as in this case, never contended that he was not the father of the child. Relying on Ex parte Presse, supra, and discounting the argument that Whitley was the presumed father under § 26-17-5(a)(4)[, Ala. Code 1975, the predecessor to § 26-17-204(a)(5)] because he openly held the child out as his own, the Court
of Civil Appeals in Foster, 564 So. 2d at 991, held that Whitley had no standing to challenge paternity:
"'[S]ince the husband was married to the mother at the time of the birth, we find that § 26-17-5(a)(1) controls and that the husband is the presumed father under that section.'
"See also Leonard v. Leonard, 360 So. 2d 710 (Ala. 1978)."
In D.B. v. A.K., 93 So. 3d 946, 948-49 (Ala. Civ. App. 2012), this court explained:
"'If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.' Ala. Code 1975, § 26-17-607(a). This court has held, however, that 'a man seeking to establish paternity of a child born during the mother's marriage to another man must be given the opportunity to establish standing in an evidentiary hearing where he and others may present evidence bearing on whether the presumed father ... had persisted in his presumption of paternity.' W.D.R. v. H.M., 897 So. 2d 327, 331 (Ala. Civ. App. 2004) (stating that, because it could not be determined as a matter of law that the presumed father had persisted in his presumption of paternity, the juvenile court must hold a hearing on that issue); see also R.D.B. v. A.C., 27 So. 3d 1283, 1287-88 (Ala. Civ. App. 2009) (holding that, because the biological father's 'allegations ... call[ed] into question whether the legal father persist[ed] in his presumption of paternity,' the juvenile court 'should permit the biological father and others to present evidence regarding whether the legal father persists in his presumption of paternity'); and J.O.J. v. R.R., 895 So. 2d 336
(Ala. Civ. App. 2004) (holding that evidentiary hearing must be held to determine whether the biological father had standing when there was no evidence regarding whether the child's legal father had persisted in his presumption of paternity)."
Ex parte Kimbrell, 180 So. 3d 30 (Ala. Civ. App. 2015), involved a rare situation in which this court determined that the presumption set forth in Ex parte Presse was inapplicable. In Kimbrell, the mother in that case and Denny Kimbrell began living together in 2004, and they had a child in February 2006. Kimbrell was present for the child's birth, received the child into his home immediately after the birth, and, approximately seven months after the child was born, Kimbrell and the mother in that case married. Throughout those events, Kimbrell believed and held the child out to be his natural born child. Kimbrell, 180 So. 3d at 32-33.
However, it came to light that the mother had never divorced her previous husband, John Herbert. The mother had left Herbert in 1997 and had not seen him from that time until after filing a complaint for a divorce from Kimbrell. The mother in that case attempted to argue that, as her husband, Herbert, from whom she had been estranged since 1997, was the child's presumed father. Id. at 33. Kimbrell, who persisted in his status as the child's legal father, sought a paternity determination. Herbert testified that he could not be the biological father of the child and said that he had not been involved in the child's life. The undisputed evidence indicated that Kimbrell was the only father the child had known since birth. Id. The trial court found that, under the circumstances, Kimbrell was the presumed legal father of the child. Id.
The mother in Kimbrell filed a petition for a writ of mandamus in this court, asserting that, because Herbert was her legal husband at the time the child was born, Herbert was also the child's presumed father. This court, noting the "unique facts of this case," 180 So. 3d at 34, denied the mother's petition, explaining:
"The facts of this case are unusual. The mother has sought to terminate the child's relationship with Kimbrell based on the legal technicality of her own failure to divorce her first husband[, Herbert]. The materials submitted to this court by the mother indicate that Kimbrell, the only father the child has ever known, has fought to maintain his relationship with the child. The mother has failed to present any evidence indicating that there is any relationship between Herbert and the child or that there exists a logical or public-policy argument in favor of preserving Herbert's status as the father of her child, who was undisputedly born of her
relationship with and purported marriage to Kimbrell, albeit while she remained married to Herbert. It is clear that, regardless of the invalidity of the mother's marriage to Kimbrell because of the mother's failure to secure a divorce from Herbert, the familial relationship between the child and Kimbrell is the weightier consideration in terms of public policy, logic, and the best interests of the child."Ex parte Kimbrell, 180 So. 3d at 38.
This case is readily distinguishable from Kimbrell. In this case, it is undisputed that the husband has persisted in the presumption of his paternity, and the alleged father has never called into question the husband's status as a presumed father. Instead, the alleged father claims that he, too, is a presumed father and that the juvenile court must hold an evidentiary hearing to weigh those competing presumptions. However, based at least in part on the strong or "weightier" public-policy concerns set forth in Presse and its progeny, the courts of this state have firmly rejected the alleged father's argument. Established precedent supports the juvenile court's determination that, because the mother was married to the husband at the time the child was born and the husband has persisted in the presumption in favor of his paternity, the husband is the presumed father of the child. In addition to the authorities previously discussed, in D.I. v. I.G., 262 So. 3d 651 (Ala. Civ. App. 2018), D.I., the biological father, sought to establish paternity of a child born to I.G., the mother in that case, and R.D., the man with whom I.G. was living when that child was born. R.D. was named as the father on the child's birth certificate. I.G., R.D., and the child lived together, and R.D. held out the child as his own and performed the duties of a father. Id. at 53. In affirming the trial court's determination that R.D. was the child's legal father, this court explained, among other things, that,
"[a]lthough the language of § 26-17-602(3)[, Ala. Code 1975,] provides a man seeking to have his paternity adjudicated standing to bring an action to establish paternity, that statute clearly provides that such standing is subject to, i.e., limited by, the provisions of § 26-17-607. Section 26-17-607(a) specifically provides that the paternity of a presumed father may not be challenged by any person, provided that the presumed father wishes to persist in his status as the legal father. The Alabama Comment to § 26-17-607 makes very clear the intent of the legislature to continue to 'favor maintaining the integrity of the family unit and the father-child relationship that was developed therein' first espoused by our supreme court in its interpretation of the former AUPA in Ex parte Presse, 554 So. 2d 406 (Ala. 1989). That is, the AUPA does not allow even proof that the child is not the biological child of the presumed father to
overcome his status unless he permits it by choosing not to persist in his status as the presumed father. See, e.g., D.F.H.[ v. J.D.G.], 125 So. 3d [146] at 154 [(Ala. Civ. App. 2013)]. To allow the alleged biological father to prove his paternity in one action so that he can disprove the presumed father's paternity in another would run afoul of the prohibition in § 26-17-607(a) against allowing another individual to challenge the presumed father's paternity despite his persistence. See Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996) (deciding under the former AUPA that '[a] man not presumed to be the father, but alleging himself to be the father, may institute an action to have himself declared the father only when the child has no presumed father'). Thus, we conclude that the circuit court properly interpreted and applied the relevant statutes to determine that the alleged biological father's action should be dismissed, regardless of whether his action is considered to be one to establish his own paternity or one intended to disprove the presumed father's paternity.
"We turn now to the alleged biological father's specific argument that the interpretation given to the relevant statutes must be incorrect because it does not allow § 26-17-204(b) and § 26-17-607(b) to have a field of operation. See Sullivan[ v. State ex rel Atty. Gen. of Alabama], 472 So. 2d [970] at 973 [(Ala. 1985)] (indicating that multiple statutes governing the same subject should be construed so as to be certain that each is 'afforded a field of operation'). The alleged biological father is correct that § 26-17-607(b) allows for a presumption of paternity arising under § 26-17-204(a) to be rebutted by clear and convincing evidence. However, the alleged biological father is incorrect insofar as he contends that the construction of § 26-17-607(a) given to the statute by the courts of this state somehow precludes § 26-17-607(b) from having a field of operation. Section 26-17-607(a)
permits a presumed father to bring an action to disprove the presumption of his paternity. To do so, § 26-17-607(b) provides, he must present clear and convincing evidence to rebut the presumption that he is the father of the child. See Ex parte T.J., 89 So. 3d [744] at 747 n.2 [(Ala. 2012)] (indicating that § 26-17-607(b) applies when a presumed father seeks to rebut the presumption of paternity). Thus, despite the alleged biological father's contentions, § 26-17-607(b) has a clear field of operation, regardless of the fact that § 26-17-607(a) has been construed to preclude any individual from challenging a presumed father's status when he desires to persist in that status."Id. at 657-58.
This court then concluded that,
"even had the alleged biological father presented evidence indicating that he is the child's biological father, he would not be a 'presumed father' under § 26-17-204(a). Thus, at no point in the present case was the circuit court faced with conflicting presumptions such that it was required to weigh them under § 26-17-204(b)."Id. at 659.
Based on established precedent addressing circumstances such as those present in the instant case, this court will not reverse the juvenile court's judgment dismissing the alleged father's petition seeking to establish paternity of the child based on the lack of an evidentiary hearing to allow the alleged father to present evidence of his own "presumption" of paternity. The "weightier" public-policy concerns in preserving the familial relationship among the mother, the husband, and the child favor of the husband's status as the legal father.
The alleged father also argues that the AUPA violates his constitutional right "to direct and participate in the upbringing" of the child. He maintains that the AUPA violates "due process" rights of biological fathers to assert their parental rights. The specific facts of this case are regrettable, and they demonstrate a possible equal-protection issue inherent in the current state of this area of the law. However, the alleged father failed to develop a cogent legal argument to support his assertion that his constitutional rights were violated, and he failed to cite any legal authority to support his contention.
It is well settled that an appellate court
"will not 'create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.' Spradlin v. Spradlin, 601 So. 2d 76, 79 (Ala. 1992). Further, it is well settled that '"[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant."' Spradlin v.
Birmingham Airport Auth., 613 So. 2d 347, 348 (Ala. 1993)(quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So. 2d 212, 216 (Ala. 1990))."Allsopp v. Bolding, 86 So. 3d 952, 960 (Ala. 2011); see also Rule 28(a)(10), Ala. R. App. P., and Bedard v. Bedard, 266 So. 3d 1113, 1122 (Ala. Civ. App. 2018)(declining to consider an argument failing to comply with Rule 28(a)(10), Ala. R. App. P.).
This court empathizes with the situation in which the alleged father finds himself. He has highlighted an issue that is of concern to this court. However, because of the lack of a developed legal argument, this is not the case in which to challenge the well-established precedent regarding the presumptions of paternity under Alabama law.
The alleged father has not demonstrated that the juvenile court erred or abused its discretion in dismissing his petition for paternity and custody. Accordingly, the judgment is affirmed.
AFFIRMED.
Donaldson and Hanson, JJ., concur.
Moore, J., dissents, with writing.
Edwards, J., dissents, with writing. MOORE, Judge, dissenting.
I respectfully dissent.
Background
On November 19, 2018, Z.W.E. ("the alleged biological father") commenced a prebirth paternity action against L.B. ("the mother") in the DeKalb Juvenile Court. On motion of the mother, the action was transferred to the Jackson Juvenile Court ("the juvenile court"). Upon transfer, the mother moved the juvenile court to dismiss the paternity action. The alleged biological father filed a response objecting to the motion to dismiss. After a hearing, the juvenile court dismissed the paternity action. The alleged biological father filed a postjudgment motion, which the juvenile court denied. The alleged biological father timely appealed to the Jackson Circuit Court, which transferred the appeal to this court. See Rule 28(D), Ala. R. Juv. P.
In her motion to dismiss, the mother asserted that she had married Z.A.F. ("the husband") on November 14, 2018, that she gave birth to A.C.F. ("the child") on December 26, 2018, that the husband was the presumed father of the child, and that the husband was persisting in his claim of paternity to the child. The mother attached to her motion to dismiss her and the husband's marriage certificate, the birth certificate of the child, which named the husband as the father of the child, and the affidavit of the husband attesting, among other things, that he was "adamantly persist[ing] in [his] status as the legal father of [the child]."
In his response to the motion to dismiss, the alleged biological father asserted as follows. He and the mother had been in a dating relationship and had cohabited between February 2018 and August 2018, during which time the mother conceived the child. The mother informed him that she was expecting his child, and the parties began planning for the birth of the baby. From the time of conception, the mother held the child out to be the child of the alleged biological father. The alleged biological father also held the child out as his own, privately and publicly expressed his desire to act as a father to the child, and provided financial and emotional support to the mother during her pregnancy. In July 2018, the mother and the alleged biological father celebrated a gender reveal with friends and family, as evidenced by posts on Facebook, a social-media outlet. In approximately late October 2018, the mother commenced a romantic relationship with the husband. At some point in November 2018, the alleged biological father informed the mother of his intention to obtain genetic testing to prove his paternity. In early to mid November 2018, the mother ceased all communication with the alleged biological father and his family, and she married the husband on November 14, 2018. The alleged biological father filed his paternity petition four days later. After the child was born, the mother prevented the alleged biological father from bonding with the child.
The judgment dismissing the paternity action provides, in pertinent part:
"This matter was before the Court on May 22, 2019 on the Motion to Dismiss filed by the [mother] and the [alleged biological father]'s response thereto.
"Both parties were present and represented by Counsel. ... The Court heard oral argument from both counsel and took the matter under advisement based on the pleadings herein.
"After consideration of the pleadings, affidavits, exhibits to the pleadings, the arguments of counsel and the law of the State of Alabama, as defined by Ex Parte Presse, 554 So. 2d. 406 (1989) and the Code of Alabama, as it relates to paternity and presumed fatherhood, the Court makes the
following findings and it is hereby ORDERED as follows:
"1. The [mother] was married to [the husband] at the time of the birth of the child that is the subject of this action for 42 days. Therefore, under the law of the State of Alabama, [the husband] is the presumed father of this child.
"2. [The husband] has not renounced his presumption of fatherhood and has in fact executed an affidavit that he 'adamantly persist[s] in [his] status as the legal father.'
"3. The Motion to Dismiss[] filed by [the mother] is ... GRANTED."
Discussion
In his brief to this court, the alleged biological father argues that the juvenile court erred as a matter of law in denying him an evidentiary hearing in order to contest the husband's claim of paternity and to prove his own paternity of the child. "In order to preserve an alleged error of law for appellate review, the appellant must bring that alleged error to the attention of the trial court and receive an adverse ruling." Grove Hill Homeowners' Ass'n, Inc. v. Rice, 43 So. 3d 609, 613 (Ala. Civ. App. 2010) (citing Cottrell v. National Collegiate Athletic Ass'n, 975 So. 2d 306, 349 (Ala. 2007)). The alleged biological father specifically requested an evidentiary hearing regarding the competing claims of paternity in paragraph 10 of his response to the mother's motion to dismiss. The record shows that the juvenile court conducted a hearing on the mother's motion to dismiss. Although there is no transcript of that hearing, the order of the juvenile court plainly states that the juvenile court rendered its judgment "[a]fter consideration of the pleadings, affidavits, exhibits to the pleadings, the arguments of counsel and the law of the State of Alabama," clearly indicating that the juvenile court dismissed the action without conducting the evidentiary hearing requested by the alleged biological father. Contrary to the conclusion reached by the main opinion, the record affirmatively shows that the alleged biological father asserted his right to an evidentiary hearing and that he received an adverse ruling denying his request, thus preserving the issue for appellate review.
The alleged biological father also argues that his constitutional rights to due process and equal protection of the law have been violated. Although the alleged biological father did broadly assert in his response to the motion to dismiss and in his postjudgment motion that his constitutional rights were being violated, the alleged biological father did not make the specific argument he now raises on appeal. As a result, the argument was not preserved for review. See Ex parte J.W.B., 230 So. 3d 783 (Ala. 2016).
The main opinion points out that the alleged biological father argued in his postjudgment motion that the juvenile court's judgment was "contrary to the law" without specifying the legal error committed, ___ So. 3d at ___, implying that the alleged biological father did not adequately assert that his alleged legal right to an evidentiary hearing had been violated. Under Alabama law, a party who has received an adverse ruling on a pure question of law does not have to reassert that right in a postjudgment motion and receive a second adverse ruling in order to preserve the issue for appellate review. See Barnes v. Dale, 530 So. 2d 770, 777 (Ala. 1988) ("While questions of law must be clearly raised and presented, and only adverse rulings with respect to those issues are reviewable on appeal, repeated adverse rulings on pure questions of law are not ordinarily required for appellate review of those same issues."). The alleged biological father properly preserved for appellate review the question whether the juvenile court erred in denying his request for an evidentiary hearing.
The juvenile court essentially concluded that the alleged biological father could not maintain a paternity action because the husband was persisting in his claim of paternity to the child. Section 26-17-204, Ala. Code 1975, a part of the Alabama Uniform Parentage Act ("the AUPA"), Ala. Code 1975, § 27-17-101 et seq., provides, in pertinent part:
"(a) A man is presumed to be the father of a child if:
Because the child was born during the marriage between the mother and the husband, the husband is a presumed father of the child under § 26-17-204(a)(1). Section 26-17-607(a), Ala. Code 1975, provides, in pertinent part, that, "[i]f the presumed father persists in his status as the legal father of the child, neither the mother nor any other individual may maintain an action to disprove paternity." According to his affidavit, the husband persists in his status as the legal father of the child. Accordingly, if § 26-17-204(a) applies, the alleged biological father could not maintain his paternity action."(1) he and the mother of the child are married to each other and the child is born during the marriage."
However, § 26-17-607(a) applies only when "the" presumed father persists in his status as the legal father of the child. "A statute's use of the definite article -- 'the' -- indicates that the legislature intended the term modified to have a singular referent. See Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir. 1997) ('Placing the article "the" in front of a word connotes the singularity of the word modified.')." Lunsford v. Mills, 367 N.C. 618, 625, 766 S.E.2d 297, 302 (2014); see also Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S. Ct. 2711, 2717, 159 L. Ed. 2d 513 (2004), and Kehlenbrink v. Director of Revenue, 577 S.W.3d 798, 801 n.5 (Mo. 2019) (accord). Section 26-17-607(a) is based on Ex parte Presse, 554 So. 2d 406 (Ala. 1989), see Alabama Comment to § 26-17-607, in which our supreme court determined that the biological father of a child, who was not a presumed father of the child under the former AUPA, could not maintain a paternity action while the former husband of the mother of the child, who was the only presumed father of the child under the former AUPA, persisted in his claim of paternity. Given the language employed and the history behind § 26-17-607(a), it is apparent that the legislature intended that a paternity action cannot be maintained when a child has only one presumed father who persists in his status as the legal father of the child. Based on § 26-17-607(a), a man not presumed to be the father of a child, but only alleging himself to be the father, cannot maintain a paternity action to have himself declared the father of the child when the presumed father persists in his claim of paternity. Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996).
In this case, the alleged biological father argues that § 26-17-607(a) does not apply because the husband is not the sole presumed father of the child. The alleged biological father contends that he is also a presumed father based on his prebirth conduct toward the child and the mother. Section 26-17-204(a)(5) confers the status of "presumed father" on a man if,
"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."In support of his claim to the status of a presumed father, the alleged biological father asserted in his response to the motion to dismiss that, while the mother was pregnant, he had cohabited with the mother, had openly acknowledged his paternity of the child, and had provided the mother emotional and financial support. The mother argues that those assertions should not be considered by this court because, she says, although the alleged biological father signed the response to the motion to dismiss, his signature was not notarized and, thus, the response could not be treated as a verified affidavit. The mother, however, did not move to strike the alleged biological father's response, so the mother waived any objection to the admissibility of that document as evidence. See Ex parte Secretary of Veterans Affairs, 92 So. 3d 771, 777 (Ala. 2012). In its judgment, the juvenile court expressly stated that it had considered the response filed by the alleged biological father in ruling on the motion to dismiss, so this court may do so as well. Id.
In D.W. v. J.W.B., 230 So. 3d 763, 769 (Ala. Civ. App. 2015), rev'd, Ex parte J.W.B., 230 So. 3d 783 (Ala. 2016), this court did not address the argument that a man could become a presumed father under Ala. Code 1975, § 26-10A-7(a)(3)d., based on prebirth conduct toward the adoptee child because that issue had not been raised before the probate court. No appellate court of this state has heretofore addressed the issue whether a man may become a presumed father under § 26-17-204(a)(5) based on prebirth conduct toward the child and the mother of the child. In support of his argument, the alleged biological father cites "AL. HB 314: ACT 189, May 2019," i.e., Act No. 2019-189, Ala. Acts 2019, which is codified as Ala. Code 1975, § 26-23H-1 et seq., and which defines a "child" as "[a] human being, specifically including an unborn child in utero at any stage of development, regardless of viability." § 26-23H-3(7), Ala. Code 1975. In citing that Code provision, the alleged biological father points out that the Alabama Legislature expressly recognizes the personhood of an unborn child, and he maintains that a man may become a presumed father of an unborn child. Citing Rule 28(a)(10), Ala. R. App. P., the main opinion rejects this argument as being insufficiently supported by legal authority.
In Ex parte Borden, 60 So. 3d 940, 943 (Ala. 2007), our supreme court explained that Rule 28(a)(10), Ala. R. App. P., which requires legal argument with citation to authorities, is intended "to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make." If an appellate brief adequately frames the issue presented in the appeal so that the appellate court and the opposing party can discern the argument being made against the judgment, the failure to cite "an abundance of legal authority" does not result in waiver under Rule 28(a)(10). Roberts v. NASCO Equip. Co., 986 So. 2d 379, 383 (Ala. 2007). In fact, our supreme court has held that, under the foregoing circumstances, the appellate courts of this state can review the merits of an appeal even when no legal authority is cited. Kirksey v. Roberts, 613 So. 2d 352, 353 (Ala. 1993) (holding that noncompliance with Rule 28 may be excused when "we are able to adequately discern the issue [the appellant] presents, in spite of his [or her] failure to present authorities in support of his [or her] claim"). In this case, the alleged biological father adequately framed the issue for this court to readily determine its nature and for the mother to respond to it. See Bishop v. Robinson, 516 So. 2d 723, 724 (Ala. Civ. App. 1987) (explaining that an appellate court may consider an argument that is not compliant with Rule 28(a)(10) when the appellee adequately responds to the issues raised by the appellant in brief despite the noncompliance). Considering the dearth of caselaw on point and the magnitude of the rights at stake, the alleged biological father has not violated Rule 28(a)(10), and it is inappropriate for this court to affirm the juvenile court's judgment on that "technicality." Kirksey, 613 So. 2d at 353.
In Ex parte C.A.P., the supreme court stated that the "presumptions of paternity" use "birth" as a benchmark, 683 So. 2d at 1012, but it is clear that, in context, the supreme court was referring to the presumption of paternity relating to a child born during a marriage. Section 26-17-204(a)(5) refers only to conduct of a man toward a child "while the child is under the age of majority." That phrase would include an unborn child. See Ex parte Ankrom, 152 So. 3d 397, 411 (Ala. 2013) (holding that the plain meaning of the word "child" in chemical-endangerment statute includes an unborn child). Accepting as true the allegations set forth by the alleged biological father in his response to the motion to dismiss, see Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala. 2007), he would also be a presumed father.
According to the alleged biological father, because this case involves two presumed fathers, Ala. Code 1975, §§ 26-17-204(b) and 26-17-607(b), apply. Those Code sections provide, in pertinent part: "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." (Emphasis added.) The AUPA clearly envisions that a trial court will base its decision on facts adduced through an evidentiary hearing to establish the facts. In this case, the alleged biological father asserts that the mother, after first conceiving the child with him and acknowledging his paternity of the child, began a romantic relationship and married the husband less than two months before the child was born. The alleged biological father asserts that his paternity claim should receive priority because it was the first established and can be substantiated with genetic testing. The alleged biological father asserts that he has a right to a relationship with his natural child that should outweigh any claim to paternity by the husband, whose only tie to the child is through his relatively short marriage to the mother.
The main opinion misreads Ex parte Presse as holding that the presumption of paternity accorded the husband of the mother should prevail as a matter of law. First, that part of Ex parte Presse discussing conflicting presumptions of paternity is dicta because the supreme court determined that the former husband in that case was the only presumed father. Second, in Ex parte Presse the mother and the former husband had been married for years and the child was conceived by the mother with another man during that marriage. In this case, the alleged biological father alleges that the mother conceived the child during their exclusive relationship and that he established his presumed fatherhood of the child while cohabiting with the mother long before the mother began a relationship with and married the husband. The circumstances of this case vary so markedly from those in Ex parte Presse that any discussion regarding the proper resolution of conflicting claims of paternity in that case would have little relevance to the outcome of this case. I cannot agree that the juvenile court correctly dismissed the action as a matter of law based on Ex parte Presse when the AUPA expressly provides that the decision should be based on the facts of the case as set forth in the evidence. The juvenile court foreclosed any inquiry into the paternity of the child based on the husband's affidavit, but the fact that the husband was asserting that he was persisting in his status as a presumed father of the child was not a legally sufficient ground for dismissing the action when the alleged biological father was asserting his own status as a presumed father and seeking adjudication of his rights under §§ 26-17-204(b) and 26-17-607(b). See Ex parte Kimbrell, 180 So. 3d 30 (Ala. Civ. App. 2015) (holding that, when two presumed fathers persist in their claims of paternity, § 26-17-607(b), not § 26-17-607(a), applies).
Finally, even if the alleged biological father does not prevail on his claim that he is a presumed father and it is ultimately determined that § 26-17-607(a) applies, the mere assertion by the husband in his affidavit that he is persisting in his claim of paternity should not have ended the juvenile court's inquiry. The alleged biological father should have been allowed an opportunity to challenge the veracity of that affidavit and to present any countervailing facts through an evidentiary hearing. See J.O.J. v. R.M., 205 So. 2d 726, 732-34 (Ala. Civ. App. 2015) (Moore, J., dissenting). The alleged biological father requested an evidentiary hearing for exactly that purpose, and our caselaw is clear that he was entitled to that hearing. See D.B. v. A.K., 93 So. 3d 946, 948-49 (Ala. Civ. App. 2012).
For the foregoing reasons, I believe the judgment of the juvenile court should be reversed and the case remanded for further proceedings to determine the status of the alleged biological father. If the alleged biological father is a presumed father, the juvenile court should hold an evidentiary hearing to determine which paternity presumption should prevail as required by §§ 26-17-204(b) and 26-17-607(b). If the alleged biological father is not a presumed father, the juvenile court should hold an evidentiary hearing to determine whether the husband is persisting in his status as the legal father of the child under § 26-17-607(a), if that fact remains in dispute. EDWARDS, Judge, dissenting.
I respectfully dissent. In my opinion, reversal of the Jackson Juvenile Court's judgment dismissing the paternity action commenced by Z.W.E. ("the alleged biological father") is required because the juvenile court was not presented facts upon which it could have based its apparent conclusion that A.C.F. ("the child") has only one presumed father. I agree with Judge Moore that the alleged biological father has preserved for review in this court his argument that he was entitled to a hearing. I also agree with Judge Moore's conclusion that a child may have more than one presumed father under Ala. Code 1975, § 26-17-204. The Uniform Parentage Act, Ala. Code 1975, § 26-17-101 et seq., expressly provides that two or more presumptions of paternity may arise in the text of § 26-17-204(b), which reads: "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."
In my opinion, the juvenile court did not consider evidence relating to the alleged biological father's conduct toward the mother before the child's birth. The father's response to the motion to dismiss was not verified, and, thus, was not evidence.
The alleged biological father has asserted facts that, if proven at an evidentiary hearing, could possibly entitle him to the status of a presumed father, provided that the juvenile court accepts his argument that his conduct toward L.B. ("the mother") before the birth of the child should be considered under Ala. Code 1975, § 26-17-204(a)(5), as part of the determination of whether the father openly held out the child as his own or developed a significant parental relationship with the child. Although no court has yet determined whether the conduct of a man before the birth of a child of which he claims parentage is sufficient to establish a presumption of paternity under § 26-17-204(a)(5), the determination of the alleged biological father's status should be made in the first instance in the juvenile court, after consideration of evidence presented by the parties. Thus, I would reverse the judgment of the juvenile court and remand the cause with instructions that the juvenile court hold an evidentiary hearing on the alleged biological father's argument that he is a presumed father under § 26-17-204(a)(5).
I express no opinion whether the facts asserted by the father are sufficient to result in a presumption of fatherhood under § 26-17-204(a)(5). --------