Kimbеrly MCLAUGHLIN, Petitioner, v. Hon. Lori B. JONES, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Suzan McLaughlin, Real Party in Interest.
No. 2 CA-SA 2016-0035
Court of Appeals of Arizona, Division 2.
Filed October 11, 2016
382 P.3d 118
further proceedings consistent with
Berkshire Law Office, PLLC, Phoenix, By Keith Berkshire and Megan Lankford, Counsel for Petitioner
Campbell Law Group, Chartered, Phoenix, By Claudia D. Work, National Center for Lesbian Rights, San Francisco, California, By Catherine Sakimura, Shannon Minter, and Emily Haan, Co-Counsel for Real Party in Interest
Family and Juvenile Law Certificate Program, Tucson, By Barbara A. Atwood, Child and Family Law Cliniс, Tucson, By Paul D. Bennett, a clinical professor appearing pursuant to, Rule 38(d), Ariz. R. Sup. Ct., and Autumn Kycia, a student certified, pursuant to Rule 38(d), Community Law Group, Tuc-son, By Negar Katirai, an assistant clinical professor appearing pursuant to, Rule 38(d), Ariz. R. Sup. Ct., Counsel for Amicus Curiae Child and Family Law Clinic, The University of Arizona Rogers College of Law
Judge Espinosa authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.
OPINION
ESPINOSA, Judge:
¶ 1 In Obergefell v. Hodges, — U.S. —, 135 S.Ct. 2584, 2604-05, 192 L.Ed.2d 609 (2015), the United States Supreme Court held “same-sex couples may exercise the fundаmental right to marry.” In this special action, we are asked to decide whether, in light of that decision, the respondent judge erred by finding real-party-in-interest Suzan McLaughlin, the female spouse of petitioner Kimberly McLaughlin, is the presumptive parent of the child born to Kimberly, pursuant to
Factual and Procedural Background
¶ 2 Kimberly and Suzan were legally married in October 2008 in California. The couple agreed to have a child through artificial insemination, using an anonymous sperm donor selected from a sperm bank. Although efforts to have Suzan conceive and give birth through this process did not prove successful, Kimberly became pregnant in 2010. Before the child was born, the couple moved to Arizona. Anticipating the birth, they entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents of the child Kimberly was carrying.1 After E.’s birth in June 2011, Suzan stayed at home and cared for him, while
¶ 3 Suzan filed a Petition for Dissolution of Marriage in April 2013, as well as a Petition for Legal Decision-Making and Parenting Time In Loco Parentis and Petition for Temporary Orders. The respondent judge subsequently stayed the proceedings while Obergefell was pending before the Supreme Court. In January 2016, six months after the Court decided Obergefell, holding same-sex couples have the same fundamental right to marry as heterosexual couples, — U.S. —, 135 S.Ct. at 2602-03, Kimberly moved to set the case for trial. The respondent ordered briefing concerning the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity set forth in
¶ 4 Kimberly then filed a Motion for Declaratory Judgment, asking the respondent judge to decide whether she would be permitted to rebut the presumption pursuant to
Jurisdiction
¶ 5 This court has discretion whether to accept special-action jurisdiction. Lincoln v. Holt, 215 Ariz. 21, ¶ 3, 156 P.3d 438, 440 (App. 2007). In determining whether to exercise that discretion, we consider whether the petitioner has an equally plain, speedy, and adequate remedy by appeal.
¶ 6 The respondent judge’s ruling could be challenged on appeal, after the case has been decided and a final decree and parenting order is entered. See
¶ 7 For all of these reasons, we accept jurisdiction of this special action.
Discussion
¶ 8 Kimberly does not dispute that she and Suzan agreed Kimberly would be artificially inseminated, they would both be the child’s parents, and they would have equal parental rights. She nevertheless contends Suzan is
¶ 9 The interpretation and application of statutes involve questions of law, which we review de novo. See Adrian E. v. Dep’t of Child Safety, 239 Ariz. 240, ¶ 8, 369 P.3d 264, 266 (App. 2016). “Our primary task in interpreting statutes is to effect to the intent of the legislature.” State v. Lee, 236 Ariz. 377, ¶ 16, 340 P.3d 1085, 1090 (App. 2014), quoting In re Estate of Winn, 214 Ariz. 149, ¶ 8, 150 P.3d 236, 238 (2007). The plain languаge of a statute is the best indicator of that intent. Id. Therefore, “[w]hen a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005). But we must also “attempt to construe and apply statutes in a manner that would render them constitutional.” Adrian E., 239 Ariz. 240, ¶ 21, 369 P.3d at 269; see also Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 272-73, 872 P.2d 668, 676-77 (1994) (“[I]f possible, this court construes statutes to avoid rendering them unconstitutional”).
¶ 10 Section
¶ 11 Section
A. A man is presumed to be the father of the child if:
- He and the mother of the child were married at any time in the ten months immediately preceding the birth....
- Genetic testing affirms at least a ninety-five per cent probability of paternity.
- A birth certificate is signed by the mother and father of a child born out of wedlock.
- A notarized or witnessed statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.
Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.3 See
¶ 12 Kimberly first contends the respondent judge erred by relying on
¶ 13 In Obergefell, the Supreme Court held that state statutes that do not permit and will not recognize same-sex marriages deny same-sex couples the liberty-based, fundamental right to marry, thereby violating the Due Process and Equal Protection Clauses of the Constitution. — U.S. —, 135 S.Ct. at 2602-03, 2604-05. Thе Court expressly stated that same-sex couples “may not be deprived” of the fundamental right to marry and state laws that “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples” are invalid. Id. at 2604-05. Relying, in part, on its previous decision in Zablocki v. Redhail, 434 U.S. 374, 384, 386, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), in which it had reaffirmed the holding in Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18. L.Ed.2d 1010 (1967), that the right to marry is fundamental, the Court identified liberty-based, constitutionally protected rights that are related to the right to marry, including the right to procreate, raise children and make decisions relating to family relationships. Obergefell, — U.S. —, 135 S.Ct. at 2598-600.5
¶ 14 Under
¶ 15 Notwithstanding the use of male-specific terms such as “man,” “paternity” and “father,” a man’s paternity under the statute and, therefore, his status as a legal parent under
¶ 16 The word “paternity” therefore signifies more than biologically established paternity. It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology. As our supreme court observed decades ago, the purpose of paternity statutes “appears to be to provide financial support for the child from the natural parent.” Hurt v. Superior Court, 124 Ariz. 45, 48, 601 P.2d 1329, 1332 (1979). Indeed, initially enacted as
¶ 17 The marital presumption of paternity serves the additional purpose of preserving the family unit. See Ban v. Quigley, 168 Ariz. 196, 199, 812 P.2d 1014, 1017 (App. 1990); see also Partanen v. Gallagher, 475 Mass. 632, 59 N.E.3d 1133, 1141 (2016) (finding that presumptions of paternity “‘are driven, not by biological paternity, but by the [S]tate’s interest in the welfare of the child and the integrity of the family”’), quoting In re Guardianship of Madelyn B., 166 N.H. 453, 98 A.3d 494, 500 (2014) (alteration in Partanen); CW v. LV, 788 A.2d 1002, 1005 (Pa. Super. Ct. 2001) (public policy behind presumption of paternity is preservation of families). These purposes and policies are equally served whether the child is born during the marriage of a heterosexual couple or to a couple of the same sex. See Obergefell, — U.S. —, 135 S.Ct. at 2600 (safeguarding children and families, which is among bases for protecting right to marriage, applies equally to same-sex as opposite-sex couples).7
, provides: “It ... is the declared public policy of this state and the general purpose of this title that ... it is in a child’s best interest: 1. To have substantial, frequent, meaningful and continuing parenting time with both parents[;] 2. To have both parents participate in decision-making about the child.” Subsection (C) of the statute further provides: “A court shall apply the provisions of [Title 25] in a manner that is consistent with this section.”¶ 18 Kimberly maintains that
¶ 19 The respondent judgе thus correctly found that Suzan is presumptively E.’s parent. She erred, however, when she concluded that only a presumption of paternity is rebuttable under
¶ 20 Here, however, we need not decide how the rebuttal provision in
¶ 21 The parties do not dispute that they were lawfully married when Kimberly became pregnant as a result of artificial insemination the parties agreed should be undertaken, and E. was born. Nor does Kimberly dispute that Suzan stayed home to care for E. during the first twо years of his life, until Kimberly left the home with him. Additionally, Kimberly and Suzan entered into an express agreement contemplating E.’s birth and agreed unequivocally that both would be E.’s parents, with equal rights in every respect. In fact, Kimberly specifically “waive[d] any constitutional, federal or state laws that provide her with a greater right to custody and visitation than that enjoyed by Suzan.” The parties even agreed that, “[s]hould the relationship between [them] end before a second parent adoption can takе place,” the parent-child relationship between Suzan and the child would “continue with shared custody....” Finally, the couple agreed Suzan would “participate in a second parent adoption of the child if and when the parties reside in a jurisdiction that permits second parent adoptions,” but Kimberly left the home and separated from Suzan before Obergefell was decided and adoption was possible.
¶ 22 The doctrine of equitable estoppel is not a stranger to family law jurisprudence in Arizona. See Fenn v. Fenn, 174 Ariz. 84, 89-90, 847 P.2d 129, 134-35 (App. 1993) (fundamental estoppel еlements of representation and detrimental reliance considered in determining child support obligations, though ultimately not relied upon); see also Unruh v. Indus. Comm’n, 81 Ariz. 118, 120, 301 P.2d 1029, 1031 (1956) (rejecting dissolution litigant’s claim where “conscience of the court” repelled by assertion of rights inconsistent with litigant’s past conduct). Although no Arizona case has, until now, addressed a situation such as the one before us, we find helpful and persuasive a Wisconsin decision, Randy A.J. v. Norma I.J., 270 Wis. 2d 384, 677 N.W.2d 630 (2004).
¶ 23 In that case, the Wisconsin Supreme Court found the biological mother of a child born during her marriage and the child’s putative father equitably estopped from rebutting the statutory presumption that the mother’s husband was the child’s father. Id. at 640-41. The husband, who had no idea another man could be the child’s biological father, had supported the child and acted as her father in every respect for years before the mother was convicted of embezzlement and incarcerated, and divorce proceedings began. Id. at 633-34. During those proceedings, the mother questioned her husband’s paternity for the first time and the putative father then filed a paternity action. Id. at 634.
¶ 24 The Wisconsin court identified the issue as “whether the actions and inactions of [the mother] and [the putative father] were so unfair as to preclude them from overcoming the public’s interest in the marital presumption” under the Wisconsin statute, which is similar to
¶ 25 The Wisconsin court also concluded that the mother and putative father’s “actions and lack of action, which were relied on by both [the child] and [the husband], [were] so unfair, that when combined with the state’s interest in preserving [the child’s] status as a marital child, they outbalance the public’s interest in a purely biological approach to parenthood.” Id. The court found them “equitably estopped from rebutting the marital presumption” establishing the husband’s paternity of the child. Id.
¶ 26 Other courts have applied the рrinciple of equitable estoppel in the same manner under similar circumstances. See Van Weelde v. Van Weelde, 110 So.3d 918, 921-22 (Fla. Dist. Ct. App. 2013) (wife equitably estopped from challenging husband’s status as legal father, given his name on birth certificate, mutual written acknowledgment of paternity, husband held child out as his own, and provided care and support); Hinshaw v. Hinshaw, 237 S.W.3d 170, 172-73 (Ky. 2007) (wife in custody dispute precluded from using genetic test results to show husband who believed he was father of child born during marriage was not biological father); S.R.D. v. T.L.B., 174 S.W.3d 502, 510 (Ky. Ct. App. 2005) (in post-dissolution action, husband estopped from disclaiming paternity and financial obligations to children born during marriage and treated as own for years); Riddle v. Riddle, 63 Ohio Misc.2d 43, 619 N.E.2d 1201, 1204, 1211-12 (Ohio Ct. Com. Pl. 1992) (mother estopped from challenging husband’s paternity of child born during marriage after she had permitted him to believe he was father and he had relied on that representation); Clark v. Edens, 254 P.3d 672, ¶¶ 15-16 (Okla. 2011) (same); Pettinato v. Pettinato, 582 A.2d 909, 912-13 (R.I. 1990) (same).
¶ 27 The reasoning of these cases applies equally here, compelling us to reach the same conclusion. Suzan entered into an agreement that guaranteed her equal parentаl rights with Kimberly. And by agreeing to Kimberly’s artificial insemination, she thereby bound herself under
Conclusion
¶ 28 Albeit for the different reasons discussed in this opinion, the respondent judge