Brumbelow v. Mathenia

• Decision Date: 04 October 2018
• Docket Number: A18A1117
• Citation: 819 S.E.2d 535,347 Ga.App. 861
• Court: Georgia Court of Appeals
• Parties: BRUMBELOW v. MATHENIA et al.

347 Ga.App. 861

819 S.E.2d 535

BRUMBELOW

v.MATHENIA et al.

A18A1117

Court of Appeals of Georgia.

October 4, 2018

Reconsideration Denied October 30, 2018

Petition for Certiorari Granted August 19, 2019

The Healy Law Firm, Timothy P. Healy, for appellant.

Hester Outman, Justin Y. Hester, James B. Outman ; Judy D. Sartain, for appellees.

Dillard, Chief Judge.

Joshua Brumbelow appeals the trial court's denial of his petition to legitimate his biological son, E. M., and its subsequent denial of his motion for a new trial. Specifically, Brumbelow argues that the trial court erred in finding that he abandoned his opportunity interest in developing a parent-child relationship with E. M. and that its judgment was not supported by the evidence.¹ For the reasons set forth infra , we reverse and remand the case with direction.

Viewing the evidence in the light most favorable to the trial court's ruling,² the record shows that toward the end of 2015, Brumbelow and Jenny Mathenia (who was separated from her husband at the time) engaged in a one-time sexual encounter, and she became pregnant. Approximately one month after Mathenia learned that she was pregnant, she informed Brumbelow of the pregnancy. At first, they discussed the possibility of raising the child together. But as Mathenia acknowledges, as soon as she learned of the pregnancy, she was "mean" to Brumbelow and "cussed him out" via text message because she "didn't want a kid with him." And throughout the pregnancy, Brumbelow repeatedly denied that he was the child's father, despite Mathenia telling him "tons of times" that the baby was his child.³

Although Mathenia informed him of the time period when she had been "romantically involved" with her husband, Brumbelow still doubted that he was E. M.'s father, in part, because of the marital relationship. For this reason, at some point early in the pregnancy, Brumbelow accompanied Mathenia to a doctor's appointment to find out how many weeks she had been pregnant, so he could "do the math" and determine whether he was the child's father. And while Brumbelow thought the timing was "off about a week or two[,]" he nevertheless offered to pay for Mathenia to have an abortion. She flatly declined. Then, sometime "a little after" February 2016, Mathenia "cut off all contact" with Brumbelow because he continued to deny that he was E. M.'s father. As a result, during the entirety of Mathenia's pregnancy, Brumbelow never asked about her well-being or if she needed anything. And although Brumbelow knew where Mathenia lived, he never visited her. Brumbelow also never offered Mathenia any financial support during the pregnancy (e.g. , money for doctor's appointments, maternity clothes, or the like). But in May 2016, approximately two months before E. M. was born, Mathenia communicated via text message with Brumbelow's mother about him being the child's father, and among other things, Mathenia told her about "cussing [Brumbelow] out" and not wanting to raise a child with him.

E. M. was born on July 10, 2016, and the following day, Mathenia voluntarily relinquished her parental rights. That same day, E. M. went home from the hospital with Lance and Ashley Hall, who planned to adopt the child, and he has remained in their custody ever since. Although Mathenia knew that Brumbelow was E. M.'s biological father, she did not inform him of the child's birth because she did not think it was "her job" to do so. Nevertheless, within a month of the baby being born, when Brumbelow and his mother learned E. M. had been placed with a family for adoption, Brumbelow contacted Mathenia and told her that he wanted to be a father to their child. And around the same time, Brumbelow's mother also contacted Mathenia and offered to help her and Brumbelow raise the child. To this end, Brumbelow's mother asked Mathenia to meet with Brumbelow at his attorney's office so that she could "consent for [Brumbelow] to fight for custody," and Mathenia agreed to do so.

During the meeting at the attorney's office, which was some time in August 2016, Mathenia expressed her "desire ... to revoke [the] surrender of [her] parental rights" and to be E. M.'s mother. Mathenia explained that, despite initially agreeing to the adoption, she had been "on and off" about going through with it, and that she struggled with making the decision. And at least as of this meeting (which occurred approximately one month after E. M. was born), Mathenia wanted to revoke the surrender of her parental rights and co-parent E. M. with Brumbelow.⁴ Shortly after the meeting, on August 23, 2016, Mathenia returned to the attorney's office and acknowledged service of Brumbelow's legitimation petition, which was filed the same day.

After agreeing at the August 2016 meeting that they would raise E. M. together as his parents, Mathenia and Brumbelow had no further contact until the first hearing in this legitimation case, which was held in mid-September 2016. During that intervening time period, unbeknownst to Brumbelow, Mathenia changed her mind and decided to contest his efforts to legitimate E. M. and proceed with the adoption. For this reason, the Halls hired separate counsel for themselves and Mathenia to represent them in the legitimation proceeding. And in a separate action, the Halls filed a petition to adopt E. M., which was then consolidated with the legitimation proceeding for trial.⁵ Ultimately, following a hearing, the trial court denied Brumbelow's petition to legitimate E. M. Thereafter, Brumbelow filed a motion for a new trial, and a motion to stay the adoption proceedings. After the Halls and Mathenia filed a joint response to both motions, the trial court held a hearing on the matter.⁶ The trial court summarily denied Brumbelow's motion for a new trial, but granted his motion to stay the adoption proceedings. This Court then granted Brumbelow's application for a discretionary appeal, which is now before us.

We review a trial court's ruling on a legitimation petition for an abuse of discretion,⁷ and its factual findings for "clear error and will only sustain such findings if there is competent evidence to support them."⁸ Bearing these guiding principles in mind, we turn now to Brumbelow's specific claims of error.

1. In addition to the claims of error delineated supra , Brumbelow also argues, for the first time on appeal, that Georgia law regarding legitimation, in general, violates his constitutional equal protection⁹ and due process rights.¹⁰ Brumbelow further asserts that this Court must establish precedent regarding whether he was "deprived of his constitutionally afforded opportunity to form a bond with his child," and that current Georgia law impermissibly favors the rights of prospective adoptive parents over the constitutional rights of a biological father. But regardless of whether these claims have merit, the Supreme Court of Georgia has exclusive jurisdiction over "... all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question."¹¹ Thus, we lack jurisdiction over Brumbelow's constitutional challenges.

Additionally, our Supreme Court has

interpreted this jurisdictional provision to extend only to constitutional issues that were distinctly ruled on by the trial court and that do not involve the application of unquestioned and unambiguous constitutional provisions or challenges to laws previously held to be constitutional against the same attack.¹²

Here, following the hearing on Brumbelow's legitimation petition, both parties filed post-hearing briefs. And in his post-hearing brief, Brumbelow references, only once, his "due process" rights as an unwed father and that he is entitled to "equal treatment" under the law afforded to other parents. Moreover, his argument relies exclusively on Georgia statutes and prior cases applying our current precedent on legitimation. Finally, Brumbelow did not argue below, as he does now on appeal, that current Georgia law on legitimation is unconstitutional.

Furthermore, the trial court's order denying Brumbelow's petition was based solely on Georgia case law regarding legitimation and the related public-policy concerns explicitly delineated in OCGA § 19-8-12 (a) (5), and the court made no mention of whether current Georgia law on legitimation violated Brumbelow's state or federal constitutional rights. Given these particular circumstances, none of the constitutional arguments Brumbelow asserts on appeal were distinctly ruled upon or even considered by the trial court. Thus, we decline to transfer this case to the Supreme Court of Georgia, and we address only the non-constitutional claims of error over which this Court has jurisdiction.¹³

2. In Brumbelow's two remaining claims of error (which are essentially the same), he argues that the trial court erred in finding that he abandoned his opportunity interest in developing a parent-child relationship with E. M. and that the court's judgment was not supported by the evidence. We agree.

When considering a legitimation petition, we must initially determine whether "the father has abandoned his opportunity interest to develop a relationship with the child."¹⁴ This is because the law affords an unwed, biological father an opportunity to develop a relationship with his offspring, and if he "grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development."¹⁵ This opportunity interest "begins at conception and endures probably throughout the minority of the child[,]"¹⁶ but it "is not indestructible[,] [and] [i]t may be lost."¹⁷ Indeed, as we have previously explained, the factors which may support a finding of abandonment include, without limitation, "a biological father's inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the...