author: SELLERS, Justice. SHAW, Justice (dissenting).

text:
    EX PARTE Carol SCRUSHY and the Town of Hayneville
    (In re Darshini Bandy et al. v. Carol Scrushy et al.)
    1160980
    Supreme Court of Alabama.
    March 9, 2018
    Rick A. Howard, April W. McKay, and Morgan L. Booker of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery; and Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for petitioners.
    Jerry L. Thornton, Hayneville, for respondents.
   SELLERS, Justice.

The Town of Hayneville ("the Town") and Carol Scrushy petition this Court for a writ of mandamus directing the Lowndes Circuit Court to vacate its July 7, 2017, order denying the Town and Scrushy's motion to dismiss what they characterize as an election contest filed by Darshini Bandy, Connie Johnson, and Justin Pouncey (hereinafter referred to collectively as "the electors") and to enter an order dismissing the electors' action. We deny the petition.

Facts and Procedural History

The Town's governing body is composed of three council members from District A; two council members from District B; and the mayor, who also serves on the council. On August 26, 2016, the Town held its quadrennial general election to elect a mayor and five council members. The winners of the election would take office in November 2016. Mayor David Daniel won in a run-off election. Cynthia Perryman and Sharon Reeves received the majority of votes for the council members for District B. As for District A, the following five candidates were on the ballot and received the following number of votes: incumbent Kim Payton (129 votes); Roy Meadows (102 votes); Lula Tyson-Bailey (93 votes); incumbent Carol Scrushy (85 votes) and incumbent Rickey Bell (71 votes). Pursuant to § 11-46-55, Ala. Code 1975, the Town's governing body timely met and declared Perryman and Reeves the winners of the council seats for District B and issued certificates of election to them. However, the Town's governing body refused to declare the winners of any of the three council seats for District A.

On August 29, 2016, Scrushy and Bell filed an election contest challenging Meadow's eligibility to serve as a council member for District A. After conducting a hearing, the circuit court entered an order declaring the election of Meadows to be void, certifying this fact to the Town's governing body and directing the Town's governing body to fill the vacant council position in accordance with the State's election laws.

On November 3, 2016, the electors filed in the circuit court a petition for a writ of mandamus, asking the circuit court to direct the Town's governing body to perform its duties under § 11-46-55(a) and to declare Payton and Tyson-Bailey the winning candidates for two of the council seats of District A and to issue to them certificates of election.

On January 5, 2017, the circuit court granted the electors' petition and entered an order directing that Payton and Tyson-Bailey be sworn in as council members for District A. Specifically, the court determined that Payton and Tyson-Bailey had been duly elected to serve as council members for District A; that no contest had been filed regarding Payton's and Tyson-Bailey's candidacies; and that the Town's governing body had failed to perform its ministerial duties under § 11-46-55(a) to declare Payton and Tyson-Bailey the winners of two of the council seats of District A and to issue to them certificates of election. The court noted in its order that it reserved the authority to enforce its order.

The Town's governing body issued the certificates of election to Payton and Tyson-Bailey, and they were sworn in as council members. After Payton and Tyson-Bailey were sworn in, however, Mayor Daniel and Payton failed or refused to attend any council meetings, thereby denying the Town's governing body a quorum and, more specifically, not allowing it to fulfill its obligation to fill the vacant council seat that existed in District A. After the council seat had remained unfilled for more than 90 days, then Governor Robert Bentley directed the probate judge to call a special election to fill the vacancy. See § 11-44G-1, Ala. Code 1975.

On February 6, 2017, the probate judge issued an order calling the special election for March 21, 2017, and declaring that Bell and Scrushy were to be the only candidates on the ballot. Mayor Daniel thereafter posted notice of the special election on the front of the town hall. After the announcement of the special election, Pouncey, one of the electors, attempted to file the necessary paperwork to have his name appear as a candidate on the ballot for the special election. The Town clerk refused to accept his paperwork based on the probate court's order limiting the ballot to only two candidates: Bell and Scrushy.

On March 10, 2017, the electors moved the circuit court to enforce its prior orders directing strict compliance with the election laws and, more specifically, to direct the Town's governing body to accept Pouncey's paperwork to qualify as a candidate, to place his name on the ballot, and to allow him to stand for election to fill the vacant council seat in District A.

On March 17, 2017, the circuit court entered an order holding that the date set for the special election was defective as a matter of law because the date fell on the third Tuesday in March, which is not one of the Tuesdays allowed by statute. See § 11-46-21(b), Ala. Code 1975. The circuit court further held that, in setting the date for the special election, the probate court did not comply with the notice requirements of § 11-46-22(a), Ala. Code 1975, which requires a minimum of two months' notice of the special election. Because of the illegal scheduling of the special election, the circuit court ordered the Town's governing body to provide a new and legal special-election date, to give the required notice of the election, to set the qualifying deadlines for qualified electors who desired to be candidates, and to otherwise proceed with the special election to fill the vacant council seat in District A. The circuit court again stated in its order that it retained jurisdiction "to enforce this and all previous orders regarding the August 2016 election and the special election to fill the vacancy in District A." Mayor Daniel provided the circuit court with a special-election date of May 23, 2017; the election resulted in Scrushy's receiving the majority of votes for the vacant council seat in District A. Despite the fact that Scrushy received the majority of votes, the Town's governing body did not meet to certify and declare her the winner of the special election.

On May 26, 2017, the electors filed a "second motion to enforce prior orders," asking the circuit court to declare the May 23, 2017, special election invalid on the basis that the Town's governing body was usurped of its mandatory role in ordering the special election. Specifically, the electors asserted that the Town's governing body failed to comply with § 11-46-21(b), which states, in part, that "[s]pecial elections shall be held on the second or fourth Tuesday of any month when ordered by the municipal governing body." (Emphasis added.) The electors further asserted that, pursuant to § 11-46-27(a), Ala. Code 1975, the Town's governing body or a majority thereof "must ... appoint from the qualified electors of the respective wards or voting districts officers to hold the election." The electors finally asserted that, in this case, it was legally impossible for the Town's governing body to order the special election because Mayor Daniel and Council Member Payton refused to attend council meetings, thereby denying a quorum of the council to order the special election and/or to appoint qualified electors to hold the election.

On June 6, 2017, the Town moved the circuit court to enforce its prior orders and, more specifically, to declare Scrushy the winner of the May 23, 2017, special election and to order that she be sworn in as a member of the Town council. The Town also moved the circuit court to dismiss the electors' second motion to enforce prior orders on the basis that the motion to enforce was an election contest over which the circuit court did not have subject-matter jurisdiction.

On June 20, 2017, the circuit court conducted a hearing on the parties' respective motions, and on July 7, 2017, it entered an order declaring void the May 23, 2017, special election as illegal. The circuit court made the following findings in its order:

"After considering the pleadings, motions, arguments of counsel, together with the testimony of the witnesses, the Court is of the opinion that [Mayor Daniel] willfully and deliberately chose not to follow the prior Orders of this Court requiring the town officials to strictly follow the Alabama statutes that govern municipal elections. [Mayor Daniel] admitted during his testimony that he and another council person, Kim Payton, failed to attend a single regularly scheduled council meeting in 2017, which had the effect of preventing any council action for lack of a quorum. There was credible evidence that the other three members of the current council, [Tyson-Bailey, Reeves, and Perryman], were present at the town hall for each regularly scheduled meeting and all were ready, willing and able to meet as a member of the council and execute their duties as council members, all without success because of the lack of a quorum.
"The sanctity of the election process requires strict adherence to the laws enacted by the Alabama Legislature governing the conduct of elections in Alabama. Alabama municipal elections are governed by Alabama Code [1975, §] 11-46-1 et seq.The action(s) and or inaction(s) of [Mayor Daniel] prevented the town council from performing its lawful duties regarding the special election because [Mayor Daniel] took it upon himself to set the special election for May 23, 2017, without the knowledge or permission of the town council. Alabama Code [1975, §] 11-46-21(b) [,] requires special elections to be ordered by the municipal governing body, which did not happen for the reasons set out herein. In addition to ignoring the legal requirement, he ignored the clear and unambiguous prior orders of this Court mandating strict compliance with the municipal election laws and directing that [Mayor Daniel] and [the] town council participate in the election process mandated by Alabama law. Consequently, the Court has no choice other than to declare the May 23, 2017, election to be illegal and void;
"It is further ORDERED that [Mayor Daniel, Payton, Tyson-Bailey, Reeves, and Perryman] are ordered and directed to appear at the Hayneville Town Hall at 7:00 p.m. on Monday, July 10, 2017, and then and there meet as a town council and conduct such business as the council chooses to conduct until the council meeting is either lawfully continued or adjourned. In the event any council person does not meet at the appointed time and conduct themselves in accord with this Order, the absent member or members will subject themselves to contempt proceedings which may result in a monetary penalty or jail time, until such time as the council is able to meet with a quorum present, so the council can conduct business of the town for the benefit of its citizens.
"Any relief not expressly granted herein is hereby denied. The Court expressly retains jurisdiction to enforce this and all previous orders regarding the issues in this case."

(Emphasis added.)

On July 10, 2017, the Town's governing body met as directed, presumably to order the special election to fill the vacant council seat in District A. At some point before the meeting, the probate judge entered an order purporting to void all the orders entered by the circuit court concerning the special election, declaring Scrushy to be the duly elected winner of the vacant District A council seat, and directing that Scrushy be sworn in as a council member for District A. According to the electors, since the probate court entered its order declaring Scrushy to be the duly elected winner of the vacant District A council seat, Scrushy attended and has continued to attend all council meetings.

On August 4, 2017, the circuit court entered an order reaffirming its July 7, 2017, order declaring the May 23, 2017, special election void. This petition for a writ of mandamus followed.

Standard of Review

"A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' "
Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) )."

Ex part Alabama Dep't of Corr., 252 So.3d 635, 636 (Ala. 2017).

Discussion

Scrushy and the Town correctly state that a petition for a writ of mandamus is the proper method for challenging a circuit court's jurisdiction in an election contest. See Ex parte Williams, 613 So.2d 1266, 1267 (Ala. 1993). In this case, Scrushy and the Town characterize the electors' "second motion to enforce prior orders" as purporting to be an election contest filed pursuant to § 11-46-69(a), Ala. Code 1975. Scrushy and the Town specifically assert that the circuit court did not have subject-matter jurisdiction over an election contest because, they say, no one had been declared the winner of the special election. See Smith v. Burkhalter, 28 So.3d 730, 736 (Ala. 2009) (holding that "[o]nly the election of a 'person declared elected' may be contested under § 11-46-69"). Scrushy and the Town further assert that, even if someone had been declared the winner of the May 23, 2017, special election, the circuit court still lacked subject-matter jurisdiction over an election contest because, they say, the electors failed to follow the statutory requirements set forth in § 17-16-56, Ala. Code 1975.

This Court declines to accept Scrushy and the Town's characterization of the electors' second motion to enforce prior orders as an election contest. The circuit court expressly stated in its January 5, 2017, and March 17, 2017, orders that it retained jurisdiction to enforce its orders concerning the August 2016 election and the special election to fill the vacant council seat in District A. The circuit court's March 17, 2017, order made clear that the Town's governing body had a duty to conduct the special election in accordance with the State's election laws:

"It is Town of Hayneville's duty and obligation, and those of the council members, and the town's agents, servants and employees to conduct elections according to the statutes and rules governing the same as provided by the Alabama Legislature. The mayor, town council, and the town's agents, servants and employees are hereby ordered and directed to forthwith conduct this special election in accordance with the provisions of Alabama Code [1975, §] 11-46-1 et seq."

(Emphasis added.)

The electors admittedly did not challenge the results of the May 23, 2017, special election and, in fact, had no standing to do so when no one had been "declared" the winning candidate of the election pursuant to § 11-46-69(a). Rather, the electors moved the circuit court to enforce its prior orders directing strict compliance with the State's election laws, which would allow the Town council members to perform their lawful duties regarding the special election. As previously indicated, the electors asserted in their second motion to enforce prior orders that the May 23, 2017, special election was invalid because Mayor Daniel had failed to comply with the circuit court's prior orders and, more specifically, with § 11-46-21(b), which states, in part, that "[s]pecial elections shall be held ... when ordered by the municipal governing body." (Emphasis added). The circuit court's July 7, 2017, order reflects that Mayor Daniel set out to deliberately and consciously disobey the circuit court's orders, a fact the court recognized when it stated that Mayor Daniel had willfully "prevented the town council from performing its lawful duties regarding the special election because the mayor took [it] upon himself to set the special election for May 23, 2017, without the knowledge or permission of the town council." (Emphasis added.) The circuit court further found that Mayor Daniel and Payton failed to attend a single regularly scheduled meeting in 2017, which had the effect of preventing any council action during that time for a lack of a quorum.

For the foregoing reasons, we conclude that the circuit court had the power to enforce its prior orders and to void the May 23, 2017, special election, which, the court found, had not been ordered in strict compliance with the State's election laws. To this extent, the circuit court correctly directed Mayor Daniel and the Town council members to meet on July 10, 2017, to conduct business and, more specifically, to follow this State's election laws in ordering a special election to fill the vacant council seat in District A or otherwise to be subject to contempt proceedings. See § 12-1-7, Ala. Code 1975 (providing that "[e]very court shall have the power ... to compel obedience to its judgments, orders and process and to orders of a judge out of court, in an action or proceeding therein"). See also McMorrough v. McMorrough, 930 So.2d 511, 516 (Ala. Civ. App. 2005) (noting that "Alabama law is well established that a trial court has the power to enforce its judgment and to enter such orders as may be necessary to render a judgment effective"); and Grayson v. Grayson, 628 So.2d 918, 920 (Ala. Civ. App. 1993) (noting that "[t]he United States District Court commented in Jones v. Cleland, 515 F.Supp. 212 (N.D. Ala. 1981), that a motion to enforce a judgment is the proper method to pursue the enforcement of that judgment").

Conclusion

The July 7, 2017, judgment of the circuit court enforcing its prior orders concerning the August 2016 election and the special election to fill the vacant council seat in District A is a valid judgment. Accordingly, Scrushy and the Town are not entitled to the relief they seek--a writ directing the circuit court to dismiss its July 7, 2017, judgment enforcing its prior orders.

PETITION DENIED.

Stuart, C.J., and Bolin, Wise, and Mendheim, JJ., concur.

Bryan, J., concurs in the result.

Parker, Shaw, and Main, JJ., dissent.

SHAW, Justice (dissenting).

I do not believe that the trial court had jurisdiction to issue the order challenged in this mandamus petition; I would grant the writ and order that the underlying case be dismissed. Therefore, I respectfully dissent.

On August 26, 2016, the Town of Hayneville ("the Town") held an election for the positions of mayor and five town council members. Roy Meadows, Lula Tyson-Bailey, and Kim Payton won the majority of votes for their council seats in District A. Meadows was disqualified from office soon after the election, and his seat was vacated.

On November 3, 2016, Darshini Bandy, Connie Johnson, and Justin Pouncey (hereinafter referred to collectively as "the electors") filed an action in the Lowndes Circuit Court against the members of the town council and the mayor of the town, David Daniel, who also sits as a council member. They alleged that Tyson-Bailey had won her seat and that the council had failed to comply with Ala. Code 1975, § 11-46-55(a), which required it to determine the winning candidate for that election and certify the election results. They thus sought a judgment declaring that Tyson-Bailey was the winner and that she should be issued a certificate of election. This action was assigned case no. CV-16-13.

On January 5, 2017, the trial court issued an order holding that the council had failed to perform its ministerial duties under § 11-46-55(a) ; it further declared that Tyson-Bailey and Payton had been elected, declared them members of the council, and declared that they be sworn into office. Although the trial court held that the council had failed to comply with § 11-46-55(a), its order contained no direction for future compliance with various election laws. The trial court reserved authority to enforce its order.

The January 5 judgment, for all that appears, was a final judgment. A final judgment is one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved. George v. Sims, 888 So.2d 1224, 1226 (Ala. 2004). After 30 days, a court generally loses jurisdiction to amend its judgment unless a timely motion under Rule 59, Ala. R. Civ. P., has been filed. Ex parte Caremark Rx, LLC, 229 So.3d 751, 757 (Ala. 2017). A trial court does, however, retain "residual jurisdiction" to enforce its judgment. George, 888 So.2d at 1227. Such residual jurisdiction to enforce a judgment does not allow the trial court to modify or to amend the judgment substantively:

"Although a trial court has 'residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment,' that authority is not so broad as to allow substantive modification of an otherwise effective and unambiguous final order."

George, 888 So.2d at 1227 (quoting Helms v. Helms' Kennels, Inc., 646 So.2d 1343, 1347 (Ala. 1994) ). See also Gulf Beach Hotel, Inc. v. Gulf State Park Auth., 58 So.3d 727, 732 (Ala. 2010) (holding that, although a trial court retains "residual jurisdiction to enforce its judgment," if the judgment is final, the court has "no authority to consider new claims"). Further, a trial court generally cannot purport to "retain" jurisdiction to allow it to revisit a judgment or to impose new obligations. See Ex parte Caremark, 229 So.3d at 760 ("The jurisdiction retained by the trial court after it entered its final judgment ... is limited to interpreting or enforcing that final judgment; the trial court could not extend its jurisdiction over any matter somehow related to the ... final judgment in perpetuity by simply declaring it so."). See also Gulf Beach Hotel, 58 So.3d at 731 (rejecting the argument that, because the trial court expressly retained jurisdiction to enforce its final judgment, it possessed jurisdiction to consider amendments to the complaint). With no Rule 59 motion filed in the case-nothing before us, in argument or otherwise, indicates that such a motion was filed-the trial court lost jurisdiction in the case except to enforce its final judgment. It retained no power to revisit that judgment, to modify it substantively, to impose new obligations, or to extend its jurisdiction. Ex parte Caremark, supra, and Gulf Beach Hotel, supra.

On February 6, 2017, the Lowndes County Probate Court set a special election to fill the seat vacated as a result of the Meadows election contest. The probate court's order also specified that Bell and Scrushy-the prior District A candidates and the plaintiffs in the election contest that resulted in Meadows's disqualification-were to be the candidates for that seat. Pouncey, one of the plaintiffs in case no. CV-16-13, attempted to file a candidacy application; however, the Town clerk apparently refused his application, stating that it was not allowed under the probate court's special-election order.

In response, Pouncey filed in case no. CV-16-13 a "motion for enforcement of the court's prior order(s)." In it, he alleged that the probate court had improperly restricted the names of the candidates on the ballot for the special election. He sought an order directing the Town to accept him as a candidate and to postpone the election. The motion alleged that the "[p]laintiffs" had "previously paid the cost of the original action." This motion can only be interpreted as an attempt to invoke enforcement of the trial court's January 5 judgment in that case.

On March 17, 2017, the trial court issued an order holding that the probate court had not set the special election on the date specified by statute. It therefore ordered that the special election be rescheduled. It further ordered that the Town conduct the election as required by law and struck the portion of the probate court's order specifying that only Bell and Scrushy could be shown as candidates. This order is wholly outside the scope and subject matter of the January 5 final judgment in case no. CV-16-13.

The special election was held on May 23, 2017. Scrushy received the most votes. On May 26, 2017, the electors filed in case no. CV-16-13 a "second motion to enforce prior orders in this matter." They challenged the May 23 special election, arguing that it was not conducted in a manner required by law. Specifically, they argued that because the council had not had a quorum in a meeting that year, the "municipal governing body" thus could not have ordered the election as required by Ala. Code 1975, § 11-46-21(b).

The Town responded with a "motion for enforcement of court's prior orders," which contended that certain council members had failed to attend council meetings, thus preventing the council from having a quorum to certify the results of the May 23 special election. The Town then filed a motion to dismiss, arguing that the trial court had no jurisdiction over the special election because no election-contest action had been filed pursuant to the requirements of Ala. Code 1975, § 17-16-56.

On July 7, 2017, the trial court issued an order in response to the electors' "second motion to enforce prior orders," the Town's "motion for enforcement of court's prior orders," and the Town's motion to dismiss. It found that the mayor and Payton had failed to attend council meetings and, owing to a lack of a quorum, had thus prevented the council from taking any action. Further, the mayor's inaction prevented the council from properly calling the May 23 special election. The trial court thus voided the special election and further ordered the mayor and every council member to "meet as a town council" at a certain time "and conduct such business as the council chooses." Any council member who was missing from the meeting would be sanctioned by the trial court. The Town and Scrushy petitioned for mandamus review, contending that the trial court should have granted the Town's motion to dismiss because it lacked jurisdiction to vacate the special election.

It appears that after the January 5 final judgment in case no. CV-16-13, the trial court lacked jurisdiction to issue any of its subsequent orders in that case. The underlying action involved a challenge to the council's failure to certify the election of Tyson-Bailey and Payton, and those claims were fully resolved in the January 5 judgment. Nevertheless, the trial court in case no. CV-16-13 purported to subsequently adjudicate issues related to the vacancy in Meadows's seat, even though that was the subject matter of a different lawsuit between different parties that had already been concluded. See note 8, supra. Specifically, in this case, Pouncey's challenge to the probate court's order for the special election strikes me as requiring an entirely new lawsuit, and not the reopening of a case against the council. Modifying the date of the special election and the candidate list is not enforcement of the January 5 judgment; it is instead adding to or modifying that judgment in a substantive way that is forbidden by this Court's decision in George, supra. Pouncey's subsequent request for the trial court to "enforce" its orders by voiding the special election is similarly relief far beyond simply enforcing the January 5 judgment.

None of the orders addressed above in case no. CV-16-13 issued after the final judgment of January 5 appear in any way related to simply interpreting or enforcing that judgment. They are instead taking jurisdiction over new substantive claims and adjudicating separate challenges. The trial court had no residual or retained jurisdiction to issue those orders.

This is not the jurisdictional issue Scrushy and the Town raise in their mandamus petition. However, this Court may, in considering a mandamus petition, ex mero motu address the lack of jurisdiction, even if that issue is not raised. Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 n.2 (Ala. 2009) ("Although Progressive does not raise in its petition the precise jurisdictional issue we address, the ' "[l]ack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu." ' " (quoting Ex parte Berry, 999 So.2d 883, 888 (Ala. 2008), quoting in turn Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983) ) ). See also Ex parte T.C., 63 So.3d 627, 630 (Ala. Civ. App. 2010), superseded on other grounds by statute, as recognized in Ex parte F.T.G., 199 So.3d 82, 86 (Ala. Civ. App. 2015) ("[O]ur review of such questions [regarding the lack of subject-matter jurisdiction] is not limited to grounds specifically raised in a mandamus petition because a lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu."). I would grant the petition and issue the writ.

      Section 11-46-55 provides, in relevant part:
      "(a) Commencing at 12:00 noon on the first Tuesday next after the election, the municipal governing body shall proceed to open the envelopes addressed to the governing body which have been delivered by the several returning officers to the municipal clerk, canvass the returns, and ascertain and determine the number of votes received by each candidate and for and against each proposition submitted at the election. If it appears that any candidate or any proposition in the election has received a majority of the votes cast for that office or on that question, the municipal governing body shall declare the candidate elected to the office or the question carried, and a certificate of election shall be given to the persons by the municipal governing body or a majority of them, which shall entitle the persons so certified to the possession of their respective offices immediately upon the expiration of the terms of their predecessors as provided by law...."

      On November 11, 2016, the Town filed in the federal court an action challenging, as void, the August 26, 2016, council election for District A or, in the alternative, seeking a declaration that Payton, Tyson-Bailey, and Scrushy were the winners of the District A council election. On the same day, the Town filed in the circuit court a motion to dismiss the electors' petition for a writ of mandamus or, in the alternative, a motion to stay the petition pending a ruling in the federal court action.

      Section 11-44G-1 provides, in relevant part:
      "(a)(1) A vacancy in the office of city council member in any Class 7 or Class 8 municipality shall be filled by the city council at the next regular meeting or any subsequent meeting of the council. The person elected shall hold office for the unexpired term. In the event a vacancy is not filled within 60 days after it occurs in a Class 7 or Class 8 municipality, each existing city council member, including the mayor, may submit a name to the Governor for appointment. If the Governor fails to make an appointment from any submitted names within 90 days after the vacancy occurs, the judge of probate shall call a special election to fill the vacancy."

      Section 11-46-21(b) provides, in relevant part:
      "Special elections shall be held on the second or fourth Tuesday of any month when ordered by the municipal governing body, provided that notice of such election shall be published in the manner prescribed in Section 11-46-22 on or before the corresponding Tuesday of the second month preceding the month in which the special election is to be held."

      Section 11-46-22(a) provides, in relevant part:
      "When the notice is of a special election to be held on the second Tuesday in a month, the notice shall be published on or before the second Tuesday of the second month preceding the month in which the election will be held, except where otherwise provided by law. When the notice is of a special election to be held on the fourth Tuesday of a month, the notice shall be published on or before the fourth Tuesday of the second month preceding the month in which the election will be held, except where otherwise provided by law...."

      As indicated in note 2, supra, the Town entered an appearance in November 2016 by filing a motion to dismiss the electors' petition for a writ of mandamus or, alternatively, to stay the petition pending a ruling in the action it had filed in the federal court.

      Section 11-46-69(a) provides that "[t]he election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town." Section 11-46-69(b), Ala. Code 1975, provides that "[s]uch contest shall be instituted in the manner prescribed by [§ 17-16-56, Ala. Code 1975]," which provides:
      "[T]he party contesting must file in the office of the clerk of the circuit court of the county in which the election was held, a statement in writing, verified by affidavit, of the grounds of the contest as provided in this article and must give good and sufficient security for the costs of the contest, to be approved by the clerk."

      Rickey Bell and Carol Scrushy filed in the Lowndes Circuit Court a contest challenging Meadows's election. That action was assigned case no. CV-16-9. The final judgment in that case was entered on September 13, 2016. For all that appears, no other activity took place in that case.

      The initial complaint did not include allegations regarding Payton; it is unclear from the materials provided to this Court whether it was later amended to include allegations regarding Payton.

      This Code section states: "Special elections shall be held on the second or fourth Tuesday of any month when ordered by the municipal governing body...." It was argued that because the council did not meet and call the special election, it was not "ordered by the municipal governing body."

      It does not appear from the materials before us that the Town was a party in case no. CV-16-13. However, it had previously appeared in the case in some unexplained capacity.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    B.M. v. J.B.R.
    2160510
    Court of Civil Appeals of Alabama.
    October 20, 2017 Rehearing Denied January 5, 2018 Certiorari Denied March 23, 2018
    Alabama Supreme Court 1170317
    * Note from the reporter of decisions: Judge Rogers, probate judge, Lamar County, was appointed to preside over this case upon the recusal of the probate judge in Fayette County.
    Charles H. Dunn and Joseph Callaway of Boyd, Fernambucq & Dunn, P.C., Birmingham, for appellant.
    Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; and Clatus Junkin of Junkin, Pearson, Harrison, Junkin & Pate, Fayette, for appellee.
   MOORE, Judge.

B.M. ("the father") appeals from a judgment entered by the Fayette Probate Court ("the probate court") granting the petition of J.B.R. ("the stepfather") to adopt R.J.M. ("the child"). We dismiss the appeal.

On January 31, 2017, the stepfather filed in the probate court a petition seeking to adopt the child. On March 1, 2017, the father answered and objected to the stepfather's petition. After a trial, the probate court entered a judgment on March 17, 2017, granting the stepfather's petition to adopt the child. The father filed his notice of appeal on March 30, 2017.

Discussion

On appeal, this court, ex mero motu, raised the issue whether the probate court had jurisdiction over the adoption petition in light of the fact that there exists a previous judgment entered by a Florida court regarding custody of the child, which is referenced in the record on appeal. See D.C.S. v. L.B., 84 So.3d 954, 957 (Ala. Civ. App. 2011) (" ' "[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction." ' " (quoting Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003), quoting in turn Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 945 n.2 (Ala. 1994) )). The parties were requested to submit briefs on that issue.

In J.L.L. v. Jefferson County Department of Human Resources, 127 So.3d 433 (Ala. Civ. App. 2012), this court recognized that the Parental Kidnapping Prevention Act ("the PKPA"), 28 U.S.C. § 1738A, applies to adoption actions. Subsection (d) of the PKPA provides:

"The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant."

Subsection (c)(1) of the PKPA provides:

"A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if-
"(1) such court has jurisdiction under the law of such State."

In the present case, the Circuit Court of Okaloosa County, Florida ("the Florida court"), made a custody determination regarding the child in favor of the father and issued two pickup orders to the child's mother, J.D.H., ordering her to return the child to the custody of the father; the latter pickup order was enforced by the Fayette Circuit Court ("the circuit court") by an order entered on January 13, 2017, in which the circuit court recognized the exclusive continuing jurisdiction of the Florida court over the custody of the child. The stepfather attached a copy of the circuit court's order to his petition for adoption and did not contest the terms of that order. The record indicates that the father remains a resident of Florida.

Based on the foregoing, we conclude that the Florida court has exclusive continuing jurisdiction over the child's custody under the PKPA. Under § 1738A(f), the probate court may modify the Florida court's order only if:

"(1) it has jurisdiction to make such a child custody determination; and
"(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination."

(Emphasis added.) The record does not contain any indication that the Florida court has declined to exercise its jurisdiction to modify custody of the child. Therefore, we conclude that the probate court lacks jurisdiction to modify the Florida court's order through the adoption process.

In his supplemental brief to this court, the stepfather argues that the PKPA does not provide for exclusive subject-matter jurisdiction in this case but, instead, provides for only "preferred jurisdiction." He asserts, therefore, that the father's failure to raise this issue in the adoption proceedings and in his initial appellate brief to this court renders the issue of jurisdiction waived. In Ex parte D.B., 975 So.2d 940 (Ala. 2007), our supreme court held that the PKPA regulates which state court will have subject-matter jurisdiction over a child-custody case in cases of interstate conflicts. Although the concluding paragraph of the main opinion in Ex parte D.B. provides that Nebraska was the "preferred jurisdiction" under the PKPA, 975 So.2d at 956, that language came only after the supreme court had repeatedly recognized that the PKPA gave Nebraska exclusive "subject-matter jurisdiction." 975 So.2d at 950-51, 955. Similarly, this court has repeatedly recognized that the PKPA is intended to resolve questions of subject-matter jurisdiction. Hensley v. Kanizai, 143 So.3d 186, 194 (Ala. Civ. App. 2013) ; R.W. v. G.W., 2 So.3d 869, 871 (Ala. Civ. App. 2008) ; Peterson v. Peterson, 965 So.2d 1096, 1101 (Ala. Civ. App. 2007) ; D.B. v. M.A., 975 So.2d 927, 935-37 (Ala. Civ. App. 2006) ; Patrick v. Williams, 952 So.2d 1131, 1138 (Ala. Civ. App. 2006) ; and C.J.L. v. M.W.B., 868 So.2d 451, 451-52 (Ala. Civ. App. 2003). "Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu." Ex parte Punturo, 928 So.2d 1030, 1033 (Ala. 2002). Additionally, "this court may address arguments raised for the first time on appeal that go to the subject-matter jurisdiction of the trial court." J.P. v. R.L.P., 194 So.3d 945, 947 (Ala. Civ. App. 2015).

Conclusion

Because we conclude that the Florida court has exclusive continuing jurisdiction over the custody of the child, the probate court lacked jurisdiction to consider the stepfather's petition to adopt the child, and, thus, its judgment is void. " 'A void judgment will not support an appeal.' " Roux v. Hamby, 914 So.2d 879, 882 (Ala. Civ. App. 2005) (quoting Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala. Civ. App. 2001) ). We therefore dismiss the father's appeal, albeit with instructions to the probate court to set aside its void judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

Pittman, Thomas, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the result, without writing.


author: THOMAS, Judge.

text:
    D.I. v. I.G. and R.D.
    2160781
    Court of Civil Appeals of Alabama.
    March 9, 2018
    Russell B. Robertson of Laird & Robertson, P.C., Jasper, for appellant.
    Justin K. Forrester of Forrester Law, LLC, Birmingham, for appellees.
   THOMAS, Judge.

In December 2010, I.G. ("the mother") gave birth to R.W.D. ("the child"). At that time, the mother was living with R.D. ("the presumed father"), who attended the birth of the child, executed an affidavit or paternity, and is named as the father on the child's birth certificate. The mother and the child continue to live with the presumed father, who has held out the child as his own and has performed the duties of a father since the child's birth such that he qualifies as a presumed father under Ala. Code 1975, § 26-17-204(a)(5), a part of the Alabama Uniform Parentage Act ("the AUPA"), codified at Ala. Code 1975, § 26-17-101 et seq.

In early 2014, D.I. ("the alleged biological father") was informed by a friend that he was the biological father of the child. He contacted the mother and requested that a DNA test be performed; the mother consented and produced the child for a DNA test. Once the results of that test were obtained, the alleged biological father and his parents, M.I. and J.I. ("the alleged paternal grandparents"), requested of the mother that they be allowed to visit the child and she acquiesced. They visited with the child at the alleged paternal grandparents' home on three occasions in March 2014. However, when the presumed father learned that the alleged biological father was participating in the visits, he ended them. The alleged biological father then filed in the Walker Juvenile Court ("the juvenile court") an action seeking to establish his paternity of the child.

After receiving an adverse judgment in the juvenile court, the alleged biological father appealed that judgment to the Walker Circuit Court ("the circuit court"); the alleged biological father also asserted an as-applied constitutional challenge to § 26-17-204(a)(5). The presumed father moved to dismiss the alleged biological father's action, arguing that, pursuant to Ala. Code 1975, § 26-17-607(a), the alleged biological father's paternity action should be barred. The circuit court, after a hearing, entered a judgment granting that motion on June 22, 2017. The alleged biological father timely appealed the order dismissing his action, arguing that (1) the presumed father failed to persist in his status, (2) the alleged biological father's petition was not a petition to disprove the presumed father's paternity and was therefore not barred by § 26-17-607(a), (3) the circuit court erred by interpreting § 26-17-607(a) in such a way as to render § 26-17-204(b) and § 26-17-607(b)"null and void," (4) the circuit court's interpretation and application of § 26-17-607(a) to preclude the alleged biological father from seeking to establish his paternity violates what the alleged biological father describes as his "fundamental constitutional rights to direct and participate in the upbringing of" the child, and (5) the present case is distinguishable from various other cases interpreting and applying the AUPA. The mother and presumed father and the attorney general have each filed briefs in support of the circuit court's judgment.

In order to effectively discuss the alleged biological father's arguments, we must set out the relevant statutes. Section 26-17-204 establishes the situations under which a man is presumed by law to be a child's father. The statute reads, in pertinent part, as follows:

"(a) 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;
"....
"(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."

§ 26-17-204.

Actions to establish parentage are governed by Ala. Code 1975, § 26-17-601 to § 26-17-613. According to by Ala. Code 1975, § 26-17-602(3), an action "to adjudicate parentage may be maintained by ... a man whose paternity of the child is to be adjudicated." However, the right to maintain a paternity action is specifically made subject to the provisions of § 26-17-607, which states:

"(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 explains that

"[s]ubsection (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."

The alleged biological father first argues that the presumed father failed to persist in his presumption of paternity because he allowed the alleged biological father and the alleged paternal grandparents to visit with the child. According to the alleged biological father, "one cannot be said to 'persist' in one's status as father when one actively permits the visitation of the child with the child's actual paternal family." In his reply brief, the alleged biological father describes his argument as being that the presumed father has failed to persist in his claim that the child is his "natural child," indicating that he is arguing that the recognition of the child as having a biological father and associated paternal relatives somehow equates with the presumed father's failure to "hold[ ] out the child as his natural child," as is required to give rise to a presumption of paternity under § 26-17-204(a)(5). We disagree.

The circuit court concluded that the presumed father met the requirements of § 26-17-204(a)(5) because

"he was present at the minor child's birth, he is listed on the birth certificate as the child's father, he signed an acknowledgment of paternity four days after the child was born, the child came to his home from the hospital and has lived with him to date, he holds the minor child out to be his own and ... considers the child to be his own, and ... he has provided both financial and emotional support for the child."

The presumed father testified that he meets the child's day-to-day physical and emotional needs, that he regularly performs the duties of a father, including, most recently, reading to the child and assisting him with his homework, and that he and the child have close relationship. He explained that, upon being told of the alleged biological father's potential paternity, nothing had changed in his relationship with the child and that he had told the mother "that I was [the child's] father and I would do whatever I needed to do to maintain that." Thus, the evidence presented at the hearing on the motion to dismiss supports the circuit court's conclusion that the presumed father met the requirements of § 26-17-204(a)(5) and that he persists in his presumption of paternity.

The alleged biological father would have the presumed father's allowing visitation between the child and the alleged biological grandparents serve to negate his presumed paternity because the presumed father's actions are, in the alleged biological father's opinion, tantamount to a recognition that the child is not the presumed father's "natural child." Both our supreme court and this court have recognized that a man's knowledge or admission that he is not the biological father of a child does not prevent him from being presumed to be the legal father of a child under § 26-17-205(a)(5). See Ex parteT.J., 89 So.3d 744, 748-49 (Ala. 2012) ; D.F.H. v. J.D.G., 125 So.3d 146, 154 (Ala. Civ. App. 2013). As our supreme court explained:

"We also find support for our conclusion that the legislature did not intend for biology to prevent a presumption of paternity under § 26-17-204(a)(5) in Judge Thomas's dissent in Ex parte T.J., [74 So.3d 447 (Ala. Civ. App. 2011),] in which she discusses the phrase 'openly holds out the child as his natural child':
" 'I understand that the use of the word "as" in the phrase "openly holds out the child as his natural child" is perhaps not entirely clear in meaning. However, I read "as" in this context as meaning "in the way or manner that," "in accordance with what or the way in which," or "in the capacity, character, condition, or role of." Merriam-Webster's Collegiate Dictionary 71 (11th ed. 2003). Likewise, to "hold out" is defined as "to represent to be," id. at 592, while "represent" is defined as "to describe as having a specified character or quality." Id. at 1057. Thus, subsection (a)(5) establishes a presumption of paternity in a man who openly treats a child in the same manner he would treat his biological child, who openly treats a child in accordance with the way that a father would treat his biological child, or who openly treats the child as if the child had assumed the role of his biological child "and establishes a significant parental relationship with the child by providing emotional and financial support for the child." § 26-17-204(a)(5). Read in this way, § 26-17-204(a)(5) serves to promote a significant parental relationship over a mere biological connection. Such a reading finds generous support in comments to the [AUPA].'
" 74 So.3d at 454 (Thomas, J., dissenting)."

Ex parte T.J., 89 So.3d at 748-49.

Thus, a biological link between a man and a child is not required to establish legal parentage under § 26-17-204(a), and a presumed father may well know that he is not the biological father of a child. His acceptance of that fact is not an abandonment of his presumption; nor should be his willingness to recognize the child's biological father or other biological relatives, provided, of course, that he retains his role as the child's legal father by continuing to hold out the child as his natural child and by continuing to provide emotional and financial support to and for the child. In fact, we have held that, absent proof that a presumed father has "ended his relationship with the child or ... ceded his paternal responsibilities to [another man]," a presumed father's knowledge of another man's claimed paternity coupled with that man's involvement in the child's life is not alone sufficient evidence to compel a finding that the presumed father has not persisted in his status under § 26-17-204(a). M.J.M. v. R.M.B., 204 So.3d 366, 370 (Ala. Civ. App. 2016). We therefore reject the alleged biological father's argument that the presumed father's recognition of the alleged biological father's potential paternity and the presumed father's allowance of brief visitation with the alleged biological father and the alleged paternal grandparents negated the presumption of legal paternity in the presumed father or resulted in an abandonment of that presumption.

Having decided that the presumed father has persisted in his paternity, we turn now to a discussion of the interplay between, and the operation of, §§ 26-17-204(b), 26-17-602(3), 26-17-607(a), and 26-17-607(b). The alleged biological father argues that his action was an action to establish his own paternity and not an action to disprove the presumed father's paternity, which, he appears to admit, would be precluded by § 26-17-607(a). Thus, he says, he is entitled to bring his action under § 26-17-602(3), prove his paternity with genetic evidence, and, then, if he is successful, challenge, or rebut, the presumed father's status in an action brought under § 26-17-204(b), which requires a court to weigh competing presumptions arising under § 26-17-204(a), or under § 26-17-607(b), which allows a presumption of paternity to be rebutted with clear and convincing evidence. To prevent him from doing so, he says, restricts both § 26-17-204(b) and § 26-17-607(b) to the point that they have no field of operation, a result, he says, which compels the conclusion that the circuit court's interpretation of the relevant statutes is incorrect. See Sullivan v. State ex rel. Atty. Gen. of Alabama, 472 So.2d 970, 973 (Ala. 1985) ("In determining legislative intent, statutes are, where possible, construed in harmony with statutes existing at the time of enactment, so that each is afforded a field of operation."). We cannot agree with the alleged biological father.

To aid us in addressing the alleged biological father's argument, we turn to the principles of statutory construction.

"This court must consider statutory provisions in the context of the entire statutory scheme, rather than in isolation. Siegelman v. Alabama Ass'n of School Bds., 819 So.2d 568, 582 (Ala. 2001). In ascertaining legislative intent, we must look to the entire act instead of isolated phrases or clauses. Lambert v. Wilcox County Comm'n, 623 So.2d 727, 729 (Ala. 1993). Moreover, it is 'the duty of the Court to harmonize and reconcile all parts of a statute so that effect may be given to each and every part: conflicting intentions in the same statute are never to be supposed or so regarded unless forced on the Court by unambiguous language.' Leath v. Wilson, 238 Ala. 577, 579, 192 So. 417, 419 (1939). When construing the language of a statute, this court must presume ' " 'that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.' " ' Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala. 2000) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala. Crim. App. 1997) )."

Hays v. Hays, 946 So.2d 867, 877 (Ala. Civ. App. 2006) ; see also Dollar v. City of Ashford, 677 So.2d 769, 770 (Ala. Civ. App. 1995) (quoting Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala. 1991) ) (stating that " '[s]tatutes should be construed together so as to harmonize the provisions as far as practical' "). "Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says." Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala. 2003) (citing Ex parte Shelby Cty. Health Care Auth., 850 So.2d 332 (Ala. 2002) ).

Although the language of § 26-17-602(3) 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., 125 So.3d at 154. 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, 472 So.2d at 973 (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 at 747 n.2 (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.

Insofar as the alleged biological father challenges the circuit court's interpretation of § 26-17-607(a) to preclude a man in the alleged biological father's position from proving his paternity as somehow impermissibly limiting the field of operation of § 26-17-204(b), we note that § 26-17-204(b) would have no application to the alleged biological father in the present case. Section 26-17-204(b) requires that a trial court weigh competing presumptions of paternity that might arise under § 26-17-204(a). The alleged biological father does not argue that he presented evidence indicating that he meets any of the requirements for presumed fatherhood under § 26-17-204(a), and no such evidence exists in the record. We further note 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). The field of operation of § 26-17-204(b) continues to be, as always, the determination of the weightier presumption of paternity when the facts yield two or more potential presumed fathers. See Ex parte Kimbrell, 180 So.3d 30 (Ala. Civ. App. 2015) (explaining that a trial court is to weigh competing presumptions of paternity that may arise under § 26-17-204(a) ).

The alleged biological father next contends that the construction of the applicable statutes violates his "constitutional right" in the rearing and parentage of his child. To support his argument, the alleged biological father cites only Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), both of which discuss the fundamental liberty interest that parents have in the care, custody, and control of their children in contexts not relevant here. That interest, he contends, merits protection and cannot be taken away without due process of law.

However, the alleged biological father does not discuss how the pronouncements of the United States Supreme Court, several of which indicate that an unwed father in the position of the alleged biological father does not have a fundamental right meriting the same protection granted to a married father's right to the care, custody, and control of his child, impact his assertion of that right in the present case. See, e.g., Lehr v. Robertson, 463 U.S. 248, 261-62, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) ; Caban v. Mohammed, 441 U.S. 380, 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Nor does the alleged biological father explain the appropriate standard to be applied to a constitutional challenge of this nature, which standard varies based on the nature of the right claimed. See C.E.G. v. A.L.A., 194 So.3d 950, 955-56 (Ala. Civ. App. 2015) (explaining that, in order to determine whether a party's substantive due-process rights have been infringed, a court must first determine the nature of the right alleged to have been infringed because the appropriate level of scrutiny varies depending on the nature of the right). The alleged biological father also fails to recognize or discuss the several opinions from the courts of this state that have rejected similar constitutional challenges to both the former AUPA and the current AUPA. See, e.g., Ex parte C.A.P., 683 So.2d 1010 (Ala. 1996) ; Ex parte Presse, 554 So.2d 406 (Ala. 1989) ; M.J.M. v. R.M.B., 204 So.3d 366 (Ala. Civ. App. 2016) ; and C.E.G. v. A.L.A., 194 So.3d 950 (Ala. Civ. App. 2015).

Both this court and our supreme court have cautioned that mere citation to general propositions without developed arguments applying applicable legal principles to the facts of the case on appeal does not satisfy an appellant's duty under Rule 28(a)(10), Ala. R. App. P.

" Rule 28(a)(10) [, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 923 (Ala.2002) ; Arrington v. Mathis, 929 So.2d 468, 470 n.2 (Ala. Civ. App. 2005) ; Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). 'This is so, because " 'it is not the function of this 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.' " ' Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (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) )."

White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).

The fact that an appellant raises a constitutional issue does not preclude application of Rule 28(a)(10). See Sweatman v. Giles, 161 So.3d 212, 221 (Ala. Civ. App. 2013) (rejecting an argument that an inmate's First Amendment rights had been violated when the brief cited only the First Amendment and general authority regarding the right to free speech and the inmate did not allege that his right to free speech had been abridged). We have before cited United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), in which a federal court of appeals cautioned appellants: "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." See D.B. v. T.E., 203 So.3d 1255, 1258 (Ala. Civ. App. 2016) ; Huntsville City Bd. of Educ. v. Jacobs, 194 So.3d 929, 945 (Ala. Civ. App. 2014). The alleged biological father's constitutional argument is, in a word, skeletal, and we are not inclined to develop his constitutional argument only to refute it with long-standing law on the matter. Thus, having found the argument to be insufficiently briefed, we decline to further consider the alleged biological father's argument.

The alleged biological father next argues that other cases applying the former and current AUPA are distinguishable because they rest on application of a marital presumption and therefore involve Alabama's public policy of protecting the intact family of a married couple. He specifically cites only J.O.J. v. R.M., 205 So.3d 726 (Ala. Civ. App. 2015), and D.F.H. v. J.D.G., 125 So.3d 146 (Ala. Civ App. 2013). He concedes that "[t]he institution of marriage, under the public policy of the State of Alabama, remains entitled to some degree of protection and deference." However, he then contends that "[t]here is no such public policy which is applicable to the 'institution' of unmarried persons living together, and it is therefore inappropriate to rely on cases involving married presumed fathers in deciding the instant case, which features an unmarried presumed father."

Of course, in reaching the conclusion that the alleged biological father is not entitled to institute an action to prove his paternity, neither the circuit court nor this court are merely relying on caselaw involving married presumed fathers. As the above discussion illustrates, we are relying on the language of § 26-17-607(a), which makes no distinction between married or unmarried presumed fathers when it pronounces 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." As former Justice Murdock explained in his dissenting opinion in Ex parte T.J.:

"Insofar as contests between presumed fathers and persons who are not presumed fathers, the language of the statute has never suggested any basis for some different level of protection of a presumed father whose status relates to one of the four categories that involves a marriage (or an attempted marriage).
"... [T]his lack of differentiation between categories of presumed fathers (or, for that matter, between the positions of those who might attempt to challenge a presumed father's status), is now corroborated by the 2008 amendment to the AUPA. This amendment actually broadened the statutory language that was in place when Presse, C.A.P., and other cases cited above were decided. As a result of that amendment, § 26-17-607(a) now expressly provides, without any differentiation between those categories of presumed fathers described in § 26-17-204(a) : '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.' (Emphasis added.)"

Ex parte T.J., 89 So.3d at 755-56 (Murdock, J., dissenting).

Furthermore, as we explained in C.E.G.,

"in its discussion of the public-policy considerations in Ex parte Presse, the supreme court appears to have found the marital presumption [of former § 26-17-5(a) ] to be a significant factor in its analysis. The decision in Ex parte Presse, however, concerned two conflicting presumptions of paternity within the former AUPA: one presumption [under former § 26-17-5(a)(1) ] based on a child's being born into a marriage and another presumption based on the holding out provision [contained in former 26-17-5(a)(4) ]. The supreme court also weighed the marital presumption against the paternity claim based on a biological connection. Although the supreme court held that the marital presumption has a higher priority than the holding out presumption or a biological-connection claim, we do not view Ex parte Presse as establishing that the holding-out provision [of § 26-17-204(a)(5) ] lacks any public-policy rationale in any context, particularly when the mother has not married either man asserting paternity. The supreme court in Ex parte Presse stated that it was guided by principles of the former AUPA 'that seek to protect the sanctity of family relationships....' [ Ex parte Presse, 554 So.2d 406,] 412 [ ( Ala. 1989) ]. Regarding the public-policy considerations of the former AUPA, the supreme court recognized that ' "[t]he legislature explicitly chose not to grant standing to one claiming to be the natural father of a child with a presumed father." ' Ex parte Presse, 554 So.2d at 413 (quoting Chief Justice Torbert's dissenting opinion in Ex parte Anonymous, 472 So.2d 643, 644 (Ala. 1985) ) (emphasis omitted). The supreme court has further held that a man's 'interest in judicially establishing his alleged biological relationship to the child is outweighed by the obvious objectives of the [former AUPA], which are to provide for the psychological stability and general welfare of the child and to afford legitimacy to children whenever possible.' Ex parte C.A.P., 683 So.2d 1010, 1012 (Ala. 1996)."

C.E.G., 194 So.3d at 957. Based, in part, on this analysis, we rejected an argument that the presumption enuring to the presumed father in C.E.G. was somehow a lesser presumption merely because he was not married to the mother. Id. The AUPA makes no distinction between the marital presumptions of § 26-17-204(a)(1)-(4) and the holding-out presumption of § 25-17-204(a)(5), and, based on the language of § 26-17-607(a), the marital status of a presumed father is not relevant to its application, except in those situations when the trial court is weighing competing presumptions, as it was in Ex parte Presse. We therefore reject the alleged biological father's attempt to distinguish the present case from those cases involving married presumed fathers.

Finally, the alleged biological father contends that the present case is distinguishable from this court's opinion in M.J.M., which he candidly admits supports a determination that the dismissal of his paternity action was proper. In M.J.M., we considered whether the Baldwin Circuit Court ("the trial court") had properly dismissed a February 2015 paternity action filed by M.J.M. to prove his paternity of K.P., a child born to R.M.B. in January 2012. M.J.M., 204 So.3d at 367-68. During her pregnancy, R.M.B. informed C.P. that he was the child's father, and he was present for the child's birth, executed an affidavit of paternity, was listed as K.P.'s father on the birth certificate, and had been rearing K.P. with R.M.B. at least since he had moved back in with R.M.B. in 2015 after a period during which he and R.M.B. had discontinued their relationship. Id. at 369. In October 2013, R.M.B. informed M.J.M. that he was the biological father of K.P. Id. at 370. M.J.M. began visiting regularly with K.P. and remained involved in K.P.'s life at the time of the hearing on the motion to dismiss. Id. C.P. acknowledged M.J.M.'s biological paternity of K.P.; however, he testified that he had been rearing K.P. and that he desired to maintain his status as the presumed father and to continue rearing K.P. Id. Although scientific evidence indicated that M.J.M. was K.P's biological father, id. at 369, we determined that M.J.M. had failed to present evidence that C.P., who was the presumed father by virtue of § 26-17-204(a)(5), had at any time failed to persist in his status as K.P.'s presumed father. Id. at 370. Thus, we concluded, M.J.M.'s paternity action was precluded by application of § 26-17-607(a). Id.

The alleged biological father in the present case argues that M.J.M. is distinguishable because, he says, M.J.M. asserted no constitutional arguments, M.J.M. failed to present evidence that C.P. had not persisted in his presumption, and M.J.M. failed to argue that he could raise a competing presumption under § 26-17-204(a). We find no basis for distinguishing M.J.M. from the present case. We have determined that the alleged biological father's constitutional challenge is so poorly mounted that we need not consider it, so the lack of a constitutional challenge in M.J.M. provides no impediment to its application as controlling precedent. We have also rejected the alleged biological father's argument that the evidence presented at trial established that the presumed father failed to persist in his presumption, partly in reliance on the holding in M.J.M., which, of course, indicates that no relevant distinction exists between M.J.M. and the present case. And, finally, we note that the alleged biological father does not argue on appeal that he, too, is a presumed father under § 26-17-204(a), and we can conceive of no basis for his doing so; thus, we conclude that the failure of M.J.M. to have made such an argument cannot compel a determination that M.J.M. is factually or legally distinguishable from the present case in any significant way.

We have rejected the alleged biological father's arguments that the AUPA is unconstitutional as applied to him and his arguments that the present case is distinguishable from caselaw interpreting and applying the AUPA. The circuit court correctly interpreted the AUPA and properly applied long-standing caselaw in its judgment dismissing the alleged biological father's paternity action. We therefore affirm its judgment.

AFFIRMED.

Pittman, Moore, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the result, without writing.

      Although, as will be discussed infra, the alleged biological father contends that M.J.M. is distinguishable from the present case, he does not argue that it is distinguishable on this particular point.

      In the circuit court, the alleged biological father initially asserted that he, too, was a presumed father under § 26-17-204(a)(5). He appears to have abandoned that claim in his pretrial brief, but, insofar as the circuit court implicitly rejected it, we note that he does not assert any such argument on appeal. Thus, we consider it to be waived. See R.B.S. v. K.M.S., 58 So.3d 795, 800 (Ala. Civ. App. 2010) (quoting Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala. 2007), quoting in turn Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n.8 (Ala. 2003) ) (" ' "An argument not made on appeal is abandoned or waived." ' "); see also T.C.M. v. W.L.K., 248 So.3d 1, 4 n.1 (Ala. Civ. App. 2017) (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala. Civ. App. 1988) ) (" 'An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.' ").

      We note that the alleged biological father describes his interest in the child as a property interest.

      The United States Supreme Court has explained:
      "When an unwed father demonstrates a full commitment to the responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his child,' Caban [v. Mohammed, 441 U.S., [380,] 392 [ (1979) ], his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he 'act[s] as a father toward his children.' Id., at 389 n.7. But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. '[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in "promot[ing] a way of life" through the instruction of children as well as from the fact of blood relationship.' Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972) ).
      "The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. 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. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie."
      Lehr v. Robertson, 463 U.S. 248, 261-62 (1983) (footnotes omitted) (emphasis added).