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November 22, 1996


Appeal from the Franklin Circuit Court, John D. Jolly, J.

The opinion of the court was delivered by: Yates, Judge.

In August 1994, the State of Alabama, on behalf of T.M., sued S.F., alleging that S.F. was the father of T.M.'s minor child, and seeking child support. The complaint also sought to require S.F. to pay one-half of all the child's medical expenses not paid by insurance, and it sought a judgment against S.F. for child support for the period back to the child's birth on June 7, 1993. The parties submitted to court-ordered blood testing. The results of the tests indicated a 99.47% probability that S.F. was the father of the child. On February 14, 1995, the district court found S.F. to be the father of the child and ordered him: to pay $106.04 per week in child support; to pay $8,960.64 as child support arrearage; to include the child on his [695 So2d Page 1187]

medical insurance; to pay one-half of any medical expenses not covered by insurance; and to pay $300 for the cost of the blood tests. S.F. appealed to the circuit court.

The circuit court conducted an ore tenus proceeding on June 6, 1995. At trial, S.F. made certain constitutional challenges based on his Fourteenth Amendment due process right. He contended that he "did not knowingly and willfully participate in any sexual activity with the mother of the minor child" and that he "was intoxicated on or about the 20th of September 1992 when the alleged sexual occurrence happened and that . . . T.M. had sex with [him] while he was intoxicated and not even cognizable of what was happening." S.F. also submitted a brief in support of his constitutional challenge, in which he argued that § 26-17-14, Ala. Code 1975, was unconstitutional because, he said, it required him to pay child support even though he had been a nonconsensual party to sex that resulted in T.M.'s pregnancy. He further contended that the court, acting in equity, could abate any child support payments due because of what he alleged to be T.M.'s sexual assault upon him.

On July 7, 1995, the circuit court entered its judgment finding that S.F. was the biological father of the child and ordering, among other things, that he pay $83.80 per week in child support; that he pay $9,050.40 in child support arrearage; and that he maintain medical insurance coverage on the child and pay one-half of any unpaid medical expenses incurred by the child. The court did not rule on S.F.'s constitutional issues. On July 14, 1995, S.F. filed several post-judgment motions. In his first motion, he requested the court to rule on the constitutionality of § 26-17-14, Ala. Code 1975, and whether he was entitled to a set-off or credit against the child support because of T.M.'s alleged nonconsensual sex with him. In his second motion, he requested a hearing so that the parties could compute the amount of child support arrearage he allegedly owed. S.F., in his third motion, asked the court to alter its ruling and to recompute the child support arrearage, alleging that according to the Child Support Guideline based on the job he had held during the year that the child was born, his child support obligation would have been $120 per month, rather than $83.80 per week, for a total arrearage of $4,680. On July 19, 1995, the court entered an order on S.F.'s first motion, rejecting S.F.'s argument that § 26-17-14, Ala. Code 1975, was unconstitutional and holding that he was not entitled to a credit or set-off against his child support or arrearage. That same day, the court, in response to S.F.'s second motion, set a hearing date of July 28, 1995.

On July 27, 1995, S.F. amended his third post-judgment motion, contending that based on his income for 1993, the year in which the child was born, he was required to pay, pursuant to the Child Support Guidelines, only $50 per month and contending, therefore, that he would only owe $300. Upon reconsideration, the court on August 28, 1995, found S.F.'s child support obligation for 1993 to be $120 per month, and found a total arrearage since June 1993 of $7,152.40. S.F. appealed to this court on October 3, 1995.

S.F. testified that in September 1992, he had attended a party at T.M.'s house. He stated that before he went to the party, he had been drinking for several hours at a nightclub and that he had gotten sick on the way to T.M.'s house. He further stated that he does not remember how much he had to drink at T.M.'s house, but that the last thing he remembers of that night was vomiting and then his brother and T.M. putting him in bed at T.M.'s house. S.F. testified that when he was put to bed he was clothed, but that when he awoke the following morning he was wearing only his unbuttoned shirt and that T.M. was standing in the bathroom doorway "toweling off." He stated that he did not remember having sex with T.M. and that he did not knowingly and purposefully have sex with her.

S.F.'s brother testified that on the night in question S.F. had been drinking heavily and was very intoxicated when he and S.F. arrived at T.M.'s house after midnight. S.F.'s brother stated that after S.F. had gotten sick in the bathroom, he and T.M. had put S.F. in bed and that S.F. was unconscious at that time. S.F.'s brother said that when he began to leave the party between 6:00 and 7:00 [695 So2d Page 1188]

a.m. he had attempted to wake S.F., but was unable. He stated that T.M. had told him to leave S.F. and that she would take care of him. S.F.'s brother further testified that he then left and that when he returned for S.F. around 9:30 a.m., S.F. was still intoxicated.

Dr. Lane Layton testified that it was her medical opinion that a man who is intoxicated to the point of losing consciousness is physically capable of having an erection and ejaculation. She stated that "the occurrence of an erection and ejaculation are not conscious, voluntary activities" and that during the night, without knowing it, a male may have an erection and ejaculate.

Kimmy Hovater testified that he was with S.F. on the night in question and that S.F. was intoxicated to the extent that he was not cognizant of his surroundings. Hovater testified that he left T.M.'s house between 1:00 and 2:00 a.m., and that, at that time, T.M. was sitting in S.F.'s lap, "kind of holding him up." Hovater stated that he talked with S.F. later that morning around 9:30 a.m. and that S.F. still seemed intoxicated. Hovater further testified that approximately two months later he had had a conversation with T.M. in which she told him that she had had sex with S.F. while he was passed out and that it had "saved her a trip to the sperm bank." S.F. presented testimony from two other witnesses who testified that they had heard T.M. brag about having sex with S.F. while he was passed out.

S.F. first contends that in Alabama child support payments are premised on a voluntary act of the father. He compares an Alabama statute and a Wisconsin statute, arguing that under Wisconsin law a person's duty to support a child flows from his voluntary parenthood. He notes, however, that there is a statutory exception to this rule involving situations where a man voluntarily donates sperm for artificial insemination of a woman other than the donor's wife. Under this exception, the donor has no duty to support the child, nor any parental rights to the child. See In re Paternity of J.L.H., 149 Wis.2d 349, 441 N.W.2d 273 (Wis. App. 1989), cert. denied, 443 N.W.2d 313 (Wis. 1989). S.F. contends that Alabama has an artificial insemination statute similar to the Wisconsin statute, and, therefore, that Alabama implicitly recognizes a need for voluntary action on the part of the biological father in order for the rights and duties of parenthood to accrue.

It is well settled that an appellate court will not consider an issue, or an argument, that was not before the trial court. Dailey v. Housing Authority for Birmingham District, 639 So.2d 1343 (Ala. 1994); S.L.C. v. State ex rel. J.J.S., 667 So.2d 120 (Ala.Civ.App. 1995). S.F. did not raise this issue, nor make this argument, to the trial court; therefore, we may not consider it on appeal.

S.F. also contends that he did not have consensual intercourse with T.M. and that he was a victim of a sexual assault by T.M. He argues that to require him to support the child that resulted from this nonconsensual intercourse would be to punish him, to deprive him of his property rights, and to deny him equal protection under the law. We note that S.F. does not contest that he is the biological father of T.M.'s child. A father has both a legal and moral duty to support his minor children. Ex parte University of South Alabama, 541 So.2d 535 (Ala. 1989); Osteen v. Osteen, 628 So.2d 944 ...

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