C.E.G. v. A.L.A.

• Decision Date: 07 August 2015
• Docket Number: 2130910.
• Parties: C.E.G. v. A.L.A. and T.E.
• Court: Alabama Court of Civil Appeals

194 So.3d 950

C.E.G.

v.A.L.A. and T.E.

2130910.

Court of Civil Appeals of Alabama.

Aug. 7, 2015.

Certiorari Denied Oct. 23, 2015

Alabama Supreme Court 1141248.

Randall W. Nichols of Massey, Stotser & Nichols PC, Birmingham, for appellant.

Clay A. Tindal of Tindal Law, LLC, Tuscaloosa, for appellee A.L.A.

Jeffrey G. Rainer and Nancy Jo Rainer of Rainer & Rainer, LLC, Northport, for appellee T.E.

DONALDSON

, Judge.

This appeal involves a claim that a portion of the Alabama Uniform Parentage Act, § 26

–17 –101 et seq., Ala.Code 1975 (“the AUPA”), is unconstitutional. C.E.G. appeals the judgment of the Tuscaloosa Circuit Court (“the trial court”) dismissing his complaint seeking to establish his paternity of J.R.E. (“the child”) and the right to custody and visitation with the child. C.E.G.'s complaint was dismissed because, under the AUPA, he does not have the right to maintain an action to establish his paternity of the child. Because we hold that the pertinent provisions of the AUPA are not unconstitutional, we affirm the trial court's judgment.

Facts and Procedural History

The child was born on April 9, 2013, to A.L.A. Approximately one month before the child's birth, T.E., a male, moved into A.L.A.'s residence. Although the record does not establish how long T.E. and A.L.A. had been in a relationship before the move, the record shows that T.E. supported A.L.A. during her pregnancy. Although T.E. and A.L.A. did not marry, the child carries T.E.'s last name, and T.E. and A.L.A are raising the child together. After the child was born, T.E. acknowledged his paternity of the child by signing a document that identified him as the child's father. The Alabama Certificate of Live Birth pertaining to the child lists T.E. as the father of the child. It is undisputed that T.E. lives with the child, holds out the child as his own, and provides the child with emotional and financial support. C.E.G. and A.L.A. had a dating relationship in 2012. C.E.G. testified that the last time he had sexual relations with A.L.A. was in the middle of October 2012. C.E.G. learned of A.L.A.'s pregnancy in December 2012, after their relationship had ended. C.E.G. contacted A.L.A. about her pregnancy. A.L.A. told C.E.G. that T.E. was the father of the child, and she asked C.E.G. to leave them alone. A.L.A. testified that she had calculated the estimated date of the conception of the child based on ultrasound tests and that she believed that C.E.G. could not have been the biological father of the child.

C.E.G. testified that, when the child was six months old, he saw pictures of the child and received anonymous text messages stating that the child resembled him. About two weeks later, C.E.G. contacted A.L.A., and they agreed to undergo a test to determine the biological paternity of the child. A DNA test conducted on October 25, 2013, showed a 99% probability that C.E.G. is the biological father of the child. T.E. testified that, even after learning of the DNA test results, he continued raising the child and holding out the child as his own.

On November 22, 2013, C.E.G. filed a complaint in the trial court seeking to establish his paternity of the child and to obtain custody and visitation rights with the child. Upon A.L.A.'s motion, the trial court entered an order joining T.E. as an indispensable party. A.L.A. and T.E. each filed a motion to dismiss the complaint, alleging that T.E. is the legal and presumed father of the child pursuant to § 26–17–204(a)(5), Ala.Code 1975

, a part of the AUPA, and that C.E.G. does not have a right to maintain an action to establish his paternity of the child. C.E.G. responded to the motions by arguing, in part, that the AUPA is unconstitutional on its face and as applied to him because it deprives him of due-process and equal-protection rights and that the AUPA conflicts with precedent disfavoring “equitable adoption.” C.E.G. notified the Attorney General of Alabama of his constitutional challenge to the AUPA. The attorney general waived his right to participate in the proceedings.

On June 4, 2014, the trial court conducted a hearing during which it received testimony from the parties. On July 17, 2014, the trial court entered a judgment granting the motions to dismiss filed by A.L.A. and T.E. The trial court cited § 26–17–204(a)(5)

and § 26–17–607(a), Ala.Code 1975, in support of its judgment dismissing C.E.G.'s complaint. C.E.G. filed a timely notice of appeal to this court.

Standard of Review

“ ‘Our review of constitutional challenges to legislative enactments is de novo.’ Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001)

. Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999) (‘In reviewing the constitutionality of a legislative act, this Court will sustain the act “ ‘unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ ” White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala.1989) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) ).'). We approach the question of the constitutionality of a legislative act ‘ “ ‘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.’ ” ' Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000) (quoting Moore v. Mobile Infirmary

Ass'n, 592 So.2d 156, 159 (Ala.1991)

, quoting in turn McAdory, 246 Ala. at 9, 18 So.2d at 815 ).

“Moreover, in order to overcome the presumption of constitutionality, ... the party asserting the unconstitutionality of the Act[ ] bears the burden ‘to show that [the Act] is not constitutional.’ Board of Trustees of Employees' Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). See also

Thorn v. Jefferson County, 375 So.2d 780, 787 (Ala.1979) ( ‘It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....’).”

State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006)

.

Discussion

The AUPA “applies to determination of parentage in this state except for matters relating to legitimation and adoption.” § 26–17–103(a), Ala.Code 1975

. Section 26–17–602(4) provides that “a man whose paternity of the child is to be adjudicated” may maintain an action to adjudicate parentage pursuant to the AUPA. The right to maintain such an action, however, is subject to the provisions of § 26–17–607(a), which provides that “[i]f 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.” Section 26–17–204 defines the ways a man obtains the status of a presumed father:

“(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;

“(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. 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.”

A presumption of paternity can arise when a man “holds out” a child as his natural child pursuant to § 26–17–204(a)(5)

(sometimes hereinafter referred to as “the holding-out provision”), regardless of whether he is, or ever has been, married to the child's mother. See Ex parte T.J., 89 So.3d 744, 749 (Ala.2012). “[T]here is no requirement that, in persisting in a claim as the legal or presumed father of a child, one must believe or have evidence demonstrating that he is the biological father of the child.” D.F.H. v. J.D.G., 125 So.3d 146, 152 (Ala.Civ.App.2013).

C.E.G. does not dispute the evidence showing that he is not the presumed father of the child, that T.E. is the presumed father of the child pursuant to the holding-out provision, that T.E. persists in asserting his status as the presumed father, and that the application of the holding-out provision and the provisions of § 26–17–607(a)

prohibit him from maintaining an action to establish his paternity of the child. C.E.G. contends that his inability to...