Appel v. Celia
| Decision Date | 08 February 2018 |
| Docket Number | Case No. CL-2017-0011789 |
| Court | Circuit Court of Virginia |
| Parties | Re: Valerie Appel v. Lynne Celia |
Dougherty Tobias Iszard
Northern Virginia Law, P.C.
9300 West Courthouse Road, Suite 204
Manassas, VA 20110
Lynne Celia
[Redacted]
Dear Ms. Stinson & Ms. Celia,
The current dispute among the parties to this litigation is whether their divorce decree should state that there are two children born of the parties. The Court concludes that such language is appropriate.
In reaching this decision, the Court must address two matters of first impression in Virginia. First, should a child born through assisted conception to a woman in a same-sex marriage be considered a child "born of the parties" for purposes of a final decree of divorce? Second, should a child born through assisted conception to the other woman in the same-sex marriage be considered a child "born of the parties" for purposes of a final decree of divorce if the child was born while the couple was joined by a civil union? The Court answers both questions in the affirmative.
The Court relies upon facts set forth in the pleadings and information provided at the hearings on December 8, 2017, and February 7, 2018. Plaintiff Valerie Appel ("Ms. Appel") and Defendant Lynne Celia ("Ms. Celia") were joined by a civil union in Connecticut on October 30, 2006. As explained more fully below, their civil union was converted to a marriage by operation of Connecticut law in 2010. Their relationship, however, subsequently deteriorated to the point that Ms. Appel now seeks a no-fault divorce. The Complaint for Divorce indicates that Ms. Appel has been a resident and domiciliary of Virginia for at least six months immediately prior to filing the Complaint for Divorce, which confers jurisdiction upon this Court.
On December 1, 2017, counsel for Ms. Appel filed a Motion for Entry of the Final Decree of Divorce and set the matter for hearing on December 8, 2017. Ms. Appel's counsel submitted a proposed Final Decree of Divorce, which states that there were no children born or adopted of the marriage. Ms. Celia appeared pro se at the hearing to contest entry of the proposed decree because she contends that there were two children born of the marriage.
Ms. Appel is the biological mother of two children born through assisted conception: Minor Child [Redacted] 1 and Minor Child [Redacted] , who was born in Virginia in 2012. Ms. Celia is the biological mother of one child born through assisted conception: Minor Child [Redacted] , who was born in Virginia in 2008. Both women conceived through assisted conception using sperm from the same sample purchased from a sperm bank in 2004. Thus, all three children are biologically related. None of the children were adopted by their biological mother's spouse.
Ms. Celia contends that Minor Child [Redacted] and Minor Child [Redacted] should be acknowledged as children born of the marriage in the divorce decree because they were born after the couple was joined by a civil union, which later became a marriage by operation of law. Ms. Appel's position is that such recognition of the children in a divorce decree lacks a basis under Virginia law.
In Virginia, a final divorce decree must state whether there are any minor children born of the parties or adopted by the parties so as to ensure that the stated grounds for divorce are proper. See Va. Code § 20-91(A)(9)(a). If the stated grounds are improper, a final decree may be rendered a nullity.
The reason for stating whether there are minor children born of the parties or adopted by the parties relates to the timing requirements for filing a Complaint for Divorce. Under Va. Code § 20-91(A)(9)(a), a no-fault divorce may be decreed if the parties have lived separate and apart without cohabitation and without interruption for six months "[i]n any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties ...." Va. Code § 20-91(A)(9)(a). Otherwise, a no-fault divorce may be decreed if and when the parties have lived separate and apart without any cohabitation and without interruption for one year. Id.
A final decree of divorce does not require a declaration as to whether any minor children were born of the marriage. Rather, Va. Code § 20-91(A)(9)(a) requires a declaration as to whether any minor children were born of the parties, born of either party and adopted by the other or adopted by both parties. The phrase "born of the marriage" appears in Virginia's affidavit statute, Va. Code § 20-106(B)(7), not in Virginia's divorce decree statute. Accordingly, the Court's analysis will focus on whether Minor Child [Redacted] and Minor Child [Redacted] should be listed in the final decree of divorce as children born of the parties, rather than children born of the marriage.
To determine whether there are minor children born of the parties in this case, the Court first must analyze Virginia's assisted conception statute, which is Va. Code § 20-158. This statute provides substantive and procedural rights to the husband of a gestational mother who conceives a child through assisted conception. Under the statute, the husband is deemed to be the child's parent, along with the gestational mother, unless he files a lawsuit within two years of when he should have known of the child's birth and proves that he did not consent to the assisted conception. Id. In the context of a final decree of divorce, therefore, the child would be considered born of the parties because the biological mother and her husband are both deemed to be the child's parents. In contrast, the sperm donor is not considered to be the child's parent unless he is the husband of the gestational mother. Id.
While Virginia's assisted conception statute provides rights to a husband of the gestational mother, it is silent as to the rights of a wife of a gestational mother in a same-sex marriage.
In 2015, the Supreme Court of the United States decided the case of Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Obergefell involved fourteen same-sex couples and two men whose same sex-partners were deceased. Id. at 2593. The litigants challenged the actions of state officials from four states that had laws denying same-sex marriages or denying full recognition of same-sex marriages from other states. Id. In Obergefell, the Supreme Court struck down those states' laws defining marriage as a union between a man and a woman and ruled that same-sex couples have a fundamental right to marry under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at 2604-05. The Supreme Court also found that same-sex couples shall be afforded the same marital rights, benefits, and responsibilities as heterosexual couples. Id. at 2601-02.
Following Obergefell, the Supreme Court decided Pavan v. Smith, 137 S. Ct. 2075 (2017). The issue in Pavan was whether the birth certificate of a child conceived through assisted conception could list the name of a same-sex spouse of the child's mother. Id. at 2076-77. At the time of the child's birth, Arkansas law specified whose names could appear on a child's state-issued birth certificate. Id. at 2077. With limited exceptions, the statute indicated that "the mother is deemed to be the woman who gives birth to the child" and "[i]f the mother was married at the time of either conception or birth...the name of [her] husband shall be entered on the certificate as the father of the child." Id.
Under Arkansas law, if a woman gave birth to a child conceived through assisted conception and the woman was married to a man, then the name of the woman's husband had to appear on the child's birth certificate. Similar to Virginia's assisted conception statute, however, the Arkansas birth certificate statute did not address a scenario in which a child is born through assisted conception to a same-sex couple. The highest state court of Arkansas concluded that the name of a gestational mother's same-sex spouse should not appear on a child's state-issued birth certificate. Id. at 2076-77.
Relying upon Obergefell, the Supreme Court of the United States reversed the Arkansas Supreme Court's decision and ruled that a gestational mother's same-sex spouse is entitled to the same recognition on a birth certificate that the Arkansas statute provides to a husband of a gestational mother. Id. at 2078-79. The refusal to do so amounted to a denial of "access to the constellation of benefits that the Stat[e] ha[s] linked to marriage." Id. at 2078 (citation omitted).
The constitutionality of Virginia's assisted conception statute, which has not been amended since 1997, must be considered in the context of the Supreme Court's recent Obergefell and Pavan decisions. The statute confers upon the husband of a gestational mother who conceives a child through assisted conception the right of parentage. The reasoning in Obergefell and Pavan make clear that Virginia's statute in its current form does not comply with constitutional requirements. Indeed, Va. Code § 20-158 discriminates in conferring a statutory benefit of marriage solely on the basis of whether a spouse of a gestational mothe...
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