Kimberly McLaughlin v. Suzan McLaughlin , 240 Ariz. 560 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
KIMBERLY 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
Filed October 11, 2016
Special Action Proceeding
Pima County Cause No. DC20130015
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
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
MCLAUGHLIN v. JONES
Opinion of the Court
Family and Juvenile Law Certificate Program, Tucson
By Barbara A. Atwood
Child and Family Law Clinic, 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, Tucson
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
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.
E S P I N O S A, Judge:
¶1 In Obergefell v. Hodges, ___ U.S. ___, ___, 135 S. Ct. 2584,
2604-05 (2015), the United States Supreme Court held “same-sex
couples may exercise the fundamental 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 A.R.S. § 25-814(A)(1), and finding Kimberly
may not rebut that presumption pursuant to § 25-814(C). For the
reasons that follow, we accept jurisdiction and deny relief.
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
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Opinion of the Court
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
Kimberly worked as a physician. The relationship deteriorated,
however, and when E. was almost two years old, Kimberly moved
out of the home, taking E. with her and cutting off his contact with
Suzan.
¶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. at ___, 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 § 25-
814(A). The respondent subsequently found in her April 7, 2016
minute entry that, based on Obergefell, it would violate Suzan’s
rights under the Fourteenth Amendment not to apply to her the
same presumption of parenthood that applies to a man. The
1 The agreement stated the parties’ intent that 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,” and Suzan would be a “co-parent” of the child;
Kimberly “waive[d] any constitutional, federal or state laws that
provide her with a greater right to custody and visitation than that
enjoyed by Suzan,” and the parties further agreed, “[s]hould the
relationship between [them] . . . end before a second parent adoption
can take place,” the parent-child relationship between Suzan and the
child would “continue with shared custody . . . .”
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Opinion of the Court
respondent thus ordered that the case proceed as a dissolution
action with children.
¶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 § 25-814(C). In her
May 2 order, the respondent ruled that Kimberly would not be
permitted to rebut the presumption. The respondent reasoned that
because Suzan was not basing her parenthood on a presumption of
paternity, it was not an issue in the case and there was nothing for
Kimberly to rebut under the statute. The respondent added, a
“family presumption applies to same sex and opposite sex non-
biological spouses married to a spouse who conceived a child
during the marriage via artificial insemination.” The respondent
also relied on A.R.S. § 25-501, a support statute applicable when a
child is born as a result of artificial insemination, finding it
necessarily gives rise to parental rights in the non-biological spouse.
The respondent again ruled the case would proceed as a dissolution
action with children. This special action followed.
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. Ariz. R. P. Spec. Act. 1(a).
Additionally, questions of law regarding the interpretation of a
statute are particularly suited for special-action review, as are issues
of first impression and statewide importance. See State v. Bernini,
230 Ariz. 223, ¶ 5, 282 P.3d 424, 426 (App. 2012).
¶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 Ariz. R. Fam. L. P. 78; Antonsen v.
Superior Court, 186 Ariz. 1, 4, 918 P.2d 203, 206 (App. 1996)
(acknowledging order regarding paternity testing could be raised on
direct appeal from final custody order but finding it in child’s best
interest to accept special-action jurisdiction and address legal issue).
But this case raises significant legal questions of first impression and
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Opinion of the Court
statewide importance regarding the interpretation and implications
of Obergefell, and it involves a young child, whose best interest is at
stake, compelling reasons to decide these matters now. See Alvarado
v. Thompson, 240 Ariz. 12, ¶ 10, 375 P.3d 77, 79 (App. 2016); see also
Sheets v. Mead, 238 Ariz. 55, ¶ 6, 356 P.3d 341, 342–43 (App. 2015)
(accepting special-action jurisdiction in part because child would
face prolonged period of uncertainty while appeal pending); K.D. v.
Hoffman, 238 Ariz. 278, ¶ 4, 359 P.3d 1022, 1023 (App. 2015) (special-
action jurisdiction accepted in part because issues involved welfare
of child).
¶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 not a parent as that term is defined
in A.R.S. § 25-401(4). She argues that as E.’s biological mother, she
is, by definition, the only parent and therefore the only person who
has parental rights, which are fundamental rights. Kimberly asserts
the respondent judge thus erred by construing § 25-501(B) and § 25-
814(A)(1) to give Suzan the same parental rights as she possesses.
Suzan responds that in light of Obergefell, those statutes must be
applied and interpreted in a gender-neutral manner so that same-sex
couples’ fundamental marital rights are not restricted and they are
afforded the same benefits of marriage as heterosexual couples and
on the same terms. Obergefell, ___ U.S. at ___, 135 S. Ct. at 2604.
¶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 give 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 language 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
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Opinion of the Court
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 25-401(4) defines “legal parent” for purposes of
marital dissolution proceedings under Title 25, as the “biological or
adoptive parent.”2 The statute adds, “Legal parent does not include
a person whose paternity has not been established pursuant to
[A.R.S.] § 25-812 [acknowledgment of paternity] or 25-814
[presumptions of paternity].” Thus, “legal parent” includes a
person whose paternity is established under § 25-814.
¶11 Section 25-814(A) provides, in relevant part, as follows:
A. A man is presumed to be the father
of the child if:
1. He and the mother of the child were
married at any time in the ten months
immediately preceding the birth . . . .
2. Genetic testing affirms at least a
ninety-five per cent probability of
paternity.
3. A birth certificate is signed by the
mother and father of a child born out of
wedlock.
2 Although Kimberly also refers to a similar definition of
parent in A.R.S. § 1-602(E), which is part of Arizona’s Parents’ Bill of
Rights, A.R.S. §§ 1-601 to 1-602, we confine our discussion to the
issue before us, which is whether Suzan is a parent for purposes of a
marital dissolution proceeding under Title 25 and the definition of
parent in § 25-401(4).
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Opinion of the Court
4. 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 Ariz. Const. art. XXX, § 1 (only union of
one man and one woman valid or recognized as marriage);
A.R.S. § 25-101(C) (prohibiting marriage between persons of same
sex).
¶12 Kimberly first contends the respondent judge erred by
relying on § 25-501 to imply a “family presumption” in § 25-814. We
agree. Section 25-501 is a support statute; it requires the spouse of a
woman who bears a child as a result of artificial insemination to pay
child support when that spouse is the biological parent or agreed to
the insemination in writing. § 25-501(B). The plain language of the
statute does not create “legal parent” status in a person who agreed
to the insemination or give that person parental rights. Had the
legislature intended to confer those rights, it could have done so
when it enacted § 25-401(4) and defined “legal parent.” See 2012
Ariz. Sess. Laws, ch. 309, § 4.4 We disagree with Kimberly, however,
3 Initially enacted as A.R.S. § 12-854 in 1994 as part of
comprehensive child-support legislation, the legislature renumbered
the statute as § 25-814 in 1996. See 1994 Ariz. Sess. Laws, ch. 374, § 5;
1996 Ariz. Sess. Laws, ch. 192, § 14.
4 Other states have specifically addressed parentage in the
context of assisted reproduction and have adopted the Uniform
Parentage Act (UPA), which recognizes a parent-child relationship
under those circumstances. See Unif. Parentage Act §§ 703, 704
(Unif. Law Comm’n 2002). Although our courts have found the
policies of the UPA “persuasive,” Hall v. Lalli, 194 Ariz. 54, ¶ 22, 977
P.2d 776, 783 (1999), our legislature has not adopted it, see Stephenson
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Opinion of the Court
that it would be impossible and absurd to apply § 25-814(A)(1) in a
gender-neutral manner to give rise to presumptive parenthood in
Suzan. Indeed, Obergefell mandates that we do so and the plain
language of the statute, as well as the purpose and policy behind it,
are not in conflict with that application.
¶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. at ___, ___, 135 S. Ct. at 2602-03, 2604-05.
The 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 ___, 135
S. Ct. at 2604-05. Relying, in part, on its previous decision in Zablocki
v. Redhail, 434 U.S. 374, 384, 386 (1987), in which it had reaffirmed
the holding in Loving v. Virginia, 388 U.S. 1, 12 (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. at ___,
135 S. Ct. at 2598-600.5
¶14 Under § 25-814(A)(1), the male spouse of a woman
who delivers a child is the presumptive parent, and, therefore, a
“legal parent” for purposes of § 25-401(4). If the female spouse of
the birth mother of a child born to a same-sex couple is not afforded
the same presumption of parenthood as a husband in a heterosexual
v. Nastro, 192 Ariz. 475, ¶ 16, 967 P.2d 616, 621-22 (App. 1998), and it
is not for us to do so.
5In Obergefell, the Court also held “there is no lawful basis for
a State to refuse to recognize a lawful same-sex marriage performed
in another State on the ground of its same-sex character.” ___ U.S. at
___, 135 S. Ct. at 2607-08. Kimberly and Suzan were legally married
in California in 2008. Following Obergefell, Arizona must recognize
their marriage.
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Opinion of the Court
marriage, then the same-sex couple is effectively deprived of “civil
marriage on the same terms and conditions as opposite-sex
couples,” particularly in terms of “safeguard[ing] children and
families.” Obergefell, ___ U.S. at ___, ___, 135 S. Ct. at 2600, 2605.6
We therefore must reject Kimberly’s rigid interpretation of § 25-814.
Mindful of our obligation to find statutes constitutional if possible,
Adrian E., 239 Ariz. 240, ¶ 21, 369 P.3d at 269, and given the
language and purpose of § 25-814, we find it accommodates a
gender-neutral application and Obergefell requires us to apply it in
this manner.
¶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 § 25-401(4) is not
necessarily biologically based. Indeed, of the four circumstances
specified in § 25-814(A) that give rise to the presumption of
paternity, only subsection (A)(2) is based on the establishment of a
biological connection between the man and the child through
scientific testing. Section 25-814(A)(1) presumes paternity if the
child is born during the marriage or within ten months thereafter. It
does not require a biological connection between the father and
child. The mere fact that the child was born during the marriage or
shortly thereafter gives rise to the presumption of the husband’s
paternity, without regard to whether the husband is the biological
parent. Similarly, neither subsection (A)(3), the father’s signature on
the birth certificate, nor (A)(4), acknowledgment of paternity,
requires a biological link with the child. Both are based, instead, on
6That Arizona’s adoption statutes, post-Obergefell, permit
same-sex couples to adopt a child, and allow a birth mother’s female
spouse to adopt her child, does not place same-sex and heterosexual
couples on equal footing. See A.R.S. § 8-103(A) (defining who may
adopt a child in Arizona); A.R.S. § 8-117(C) (effect of adoption order
when spouse of parent adopts); Ariz. R. P. Juv. Ct. 79 (setting forth
procedures for adoption, including mandatory content of petition).
Aside from the fact that adoption of E. was not a viable option for
Suzan in Arizona before Obergefell, the adoption process is not
comparable to presumptive parenthood based on marriage.
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Opinion of the Court
the presumed father’s declared intent to be the child’s parent and
thereby assume the responsibility of supporting the child.
¶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 A.R.S. § 12-854 in 1994, the statute was part of sweeping
changes to Arizona’s child support statutes. See 1994 Ariz. Sess.
Laws, ch. 374, § 5; 1996 Ariz. Sess. Laws, ch. 192, § 14 (renumbered
as § 25-814). The marital presumption is intended to assure that two
parents will be required to provide support for a child born during
the marriage. See A.R.S. § 25-503(A), (F) (requiring presumed parent
under § 25-814(A) to pay child support unless clear and convincing
evidence shows “paternity was established by fraud, duress or
material mistake of fact”).
¶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, ___ N.E.3d ___, ___, SJC-12018, 2016 WL 5721061, at *7
(Mass. Oct. 4, 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., 98 A.3d 494, 500 (N.H. 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. at ___, 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
7Section 25-103(B), A.R.S., provides: “It . . . is the declared
public policy of this state and the general purpose of this title that
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¶18 Kimberly maintains that § 25-814 pertains to paternity
and fatherhood, and is a “biological paternity statute” that cannot
apply to Suzan because she cannot possibly be E.’s father and has no
biological connection to him. And, she argues, it is constitutionally
permissible to treat men and women differently in this context,
based on biological distinctions, relying on Nguyen v. I.N.S., 533 U.S.
53 (2001). There, the Court found constitutional a federal statute
that determines the citizenship of a child born out of the country and
out of wedlock differently if the mother is a citizen than if the
purported father is a citizen. Id. at 70-71. The Court concluded the
gender-based classification had a biological basis and the
government has an important interest in verifying that a biological
parent-child relationship exists before a child born out of the
country and out of wedlock may be regarded as an American
citizen. Id. at 71-72. No such reasons for treating men and women
differently exist here, where the issue is parenthood of a child born
during a marriage.
¶19 The respondent judge 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 § 25-814(C).
See § 25-814(C) (“Any presumption under [§ 25-814(A)] shall be
rebutted by clear and convincing evidence.”). By doing so, the
respondent applied portions of § 25-814 in a gender-neutral manner
but not others. The marital presumption of parenthood cannot
constitutionally be rebuttable when the presumed parent is a man,
the husband in a heterosexual marriage, but not when the spouse of
the birth mother is a woman. Cf. Soos v. Superior Court, 182 Ariz. 470,
474-75, 897 P.2d 1356, 1360-61 (App. 1994) (finding A.R.S. § 25-218,
which prohibits surrogate parentage contracts, violated equal
protection principles insofar as it allowed men to rebut presumption
. . . 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.”
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of paternity but did not permit a woman, whose egg had been
implanted in the surrogate, to rebut the presumption of maternity).
¶20 Here, however, we need not decide how the rebuttal
provision in § 25-814(C) applies in a same-sex marriage because we
determine Kimberly is estopped from rebutting the presumption.
See Calderon-Palomino v. Nichols, 201 Ariz. 419, ¶ 3, 36 P.3d 767, 769
(App. 2001) (appellate court will not grant special-action relief if
respondent reaches right result for wrong reason). Equitable
estoppel applies when a party engages in acts inconsistent with a
position later adopted and the other party justifiably relies on those
acts, resulting in injury. Flying Diamond Airpark, LLC v. Meienberg,
215 Ariz. 44, ¶ 28, 156 P.3d 1149, 1155 (App. 2007).
¶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 two 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 take 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
elements 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
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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.,
677 N.W.2d 630 (Wis. 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 § 25-814(A)(1). Id. at 640-41. The court concluded
that all elements of equitable estoppel existed: action or inaction
that induces reliance by another to that person’s detriment. Id. It
noted the arguments of the child and the father that the
“uncontradicted evidence” showed the mother and the putative
father had done nothing to assert his paternity, had permitted the
husband to pay all birthing expenses and meet her financial needs,
even after genetic testing, and had allowed the husband and the
child “to develop deep emotional ties with each other.” Id. at 641. It
noted the following additional factors: “breaking those ties would
be very harmful to [the child], as [the husband] is the only father she
has ever known,” and, the husband was “fully committed” to acting
as the child’s father and had done so throughout her life, providing
for her emotional and financial needs for six years. Id. “In contrast,”
the court observed, the mother and the putative father had “asserted
nothing” but biological test results and the resulting presumption of
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paternity to counter the arguments of the child and the father and
the trial court’s findings, which included a determination that it was
in the child’s best interest to adjudicate the husband as the child’s
father. Id.
¶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 principle 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, 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 parental rights with Kimberly.
And by agreeing to Kimberly’s artificial insemination, she thereby
bound herself under § 25-501 to provide support for E. It is of no
moment that during oral argument before this court, Kimberly
14
MCLAUGHLIN v. JONES
Opinion of the Court
stated she would not be seeking to enforce Suzan’s support
obligation, since the duty is owed to E. Significantly, Suzan
executed a will designating Kimberly and E. as beneficiaries, stayed
home and cared for E. for the first two years of his life, and was his
de facto parent. In addition, there is no other person asserting
presumptive parentage of E. and expressing a willingness to care for
and support him. Cf. In re Marriage of Worcester, 192 Ariz. 24, ¶ 7,
960 P.2d 624, 627 (1998) (stating, “we find no suggestion in the
statutes that the court must or may permit the presumption [of
parenthood] to be rebutted unless the mother is seeking child
support from another”). Suzan is the only parent other than
Kimberly, and having two parents to love and support E. is in his
best interest. Under these circumstances, Kimberly is estopped from
rebutting the presumption of parenthood pursuant to § 25-814(C).
Conclusion
¶28 Albeit for the different reasons discussed in this
opinion, the respondent judge correctly found Suzan to be E.’s legal
parent and ordered this matter to proceed as a dissolution action
with children. Accordingly, Kimberly’s petition for special-action
relief is denied. Both parties have requested an award of attorney
fees pursuant to A.R.S. § 25-324 which, based on the limited record
in this regard, we deny. As the prevailing party in this special
action, however, Suzan is granted her taxable costs upon compliance
with Rule 21, Ariz. R. Civ. App. P. See Ariz. R. P. Spec. Act. 4(g).
15