Terrell v. Torres

• Decision Date: 23 January 2020
• Docket Number: No. CV-19-0106-PR,CV-19-0106-PR
• Citation: 456 P.3d 13,248 Ariz. 47
• Parties: In re the Matter of: John Joseph TERRELL, Petitioner/Appellee, v. Ruby TORRES, Respondent/Appellant.
• Court: Arizona Supreme Court

248 Ariz. 47

456 P.3d 13

In re the Matter of: John Joseph TERRELL, Petitioner/Appellee,

v.Ruby TORRES, Respondent/Appellant.

No. CV-19-0106-PR

Supreme Court of Arizona.

Filed January 23, 2020

Eric M. Fraser (argued), Hayleigh S. Crawford, Osborn Maledon, P.A., Phoenix; Claudia D. Work, Campbell Law Group, PLLC, Phoenix, Attorneys for John Joseph Terrell

Stanley D. Murray (argued), Stanley David Murray Attorney at Law, Scottsdale, Attorney for Ruby Torres

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in which JUSTICES BOLICK, GOULD, LOPEZ, and MONTGOMERY joined.^*

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Ruby Torres and John Terrell entered an agreement directing the disposition of cryopreserved embryos should the couple divorce. We here decide whether the parties’ agreement granted the family court discretion in awarding the embryos or whether it directed that disposition. We conclude the agreement directed donation of the embryos to another couple.

BACKGROUND

¶2 In June 2014, thirty-three-year-old Torres was diagnosed with cancer

, requiring treatment that could cause infertility. Before undergoing treatment, Torres decided to enhance her chances of later having a biological child by using her eggs and a donor’s sperm to create embryos and then cryopreserving (freezing) those embryos for later implantation through in vitro fertilization ("IVF"). Torres asked her then-boyfriend, Terrell, to serve as the sperm donor and, after initially declining, he agreed.

¶3 In July, Torres and Terrell signed a series of pre-printed joint consent forms required by Fertility Treatment Center ("FTC") before it would perform IVF-related services. At issue here is the form entitled "Embryo Cryopreservation

& Embryo Disposition" ("the Agreement"), wherein FTC agreed to store any embryos for up to ten years. The Agreement established that any embryos would be the couple’s joint property and, as such, joint consent would be required for their use or disposition. Torres and Terrell agree that the Agreement governs any dispute between them concerning disposition of the embryos.

¶4 Although the Agreement acknowledged that the disposition of cryopreserved embryos was "a rapidly evolving field, both medically and legally," paragraph 10 described three alternate dispositions in the event the couple separated, divorced, died, or became incapacitated: (1) discard the embryos, (2) donate the embryos to another couple, or (3) allow one partner to use the embryos with the contemporaneous permission of the other. A "note" warned that any embryos produced could not be used to produce a pregnancy over the other partner’s objection and stated that in the event of a divorce, both parties would have to give "express, written consent" before one could use the embryos to achieve a pregnancy.

¶5 Paragraph 10 ultimately asked the parties to indicate joint disposition choices under different scenarios by checking boxes and initialing those choices. Significantly, in the event of divorce or dissolution of their relationship, Torres and Terrell checked and initialed the first provided option in paragraph 10(H):

Divorce or Dissolution of Relationship. In the event the patient and her spouse are divorced or the patient and her partner dissolve their relationship, we agree that the embryos should be disposed of in the following manner (check one box only):

[x] A court decree and/or settlement agreement will be presented to the Clinic directing use to achieve a pregnancy in one of us or donation to another couple for that purpose.

[ ] Destroy the embryos.

The Agreement also provided that either or both parties could change their disposition selections "at any future time, or until the embryo(s) are disposed" by providing written notice to FTC and entering into a new contract.

¶6 Four days after signing the Agreement, Torres and Terrell married. The parties then underwent IVF procedures, which produced seven viable embryos that FTC cryogenically preserved and stored. Shortly thereafter, Torres underwent chemotherapy, which caused "a significant drop in her reproductive function."

¶7 Terrell initiated this matter by petitioning for divorce in 2017. The dispute here concerns the proper disposition of the embryos. Torres wants the embryos for future implantation, and Terrell, who does not wish to father any future children with Torres, asks that they be donated to another couple.

¶8 Following an evidentiary hearing, the family court found that paragraph 10(H) of the Agreement foreclosed destruction of the embryos but did not resolve whether either Torres or Terrell should get the embryos or whether they should be donated. Consequently, the court balanced the parties’ interests to make that decision and concluded, "[Terrell’s] right not to be compelled to be a parent outweighs [Torres’s] right to procreate and desire to have a biologically related child." See Davis v. Davis , 842 S.W.2d 588, 603–04 (Tenn. 1992) (describing the balancing-of-interests approach). It therefore directed FTC to donate the embryos to another couple.

¶9 In a divided opinion, the court of appeals vacated the family court’s disposition of the embryos and directed the court to award them to Torres. Terrell v. Torres , 246 Ariz. 312, 325 ¶ 61, 438 P.3d 681, 694 (App. 2019). The majority interpreted paragraph 10(H) as providing the parties’ consent for a court to use its discretion to either award the embryos to one party or direct their donation. See id. at 321 ¶ 39, 438 P.3d at 690. It agreed with the family court that a court should balance the parties’ interests to make the disposition decision. See id. at 322 ¶ 43, 438 P.3d at 691. But it concluded the family court here improperly balanced the parties’ interests and erred as a matter of law by not awarding the embryos to Torres. See id. at 322–25 ¶¶ 43–56, 438 P.3d at 691–94.

¶10 The dissent disagreed that paragraph 10(H) granted the court authority to dispose of the embryos by balancing the parties’ interests rather than as dictated by the Agreement. See id. at 326 ¶¶ 64–65, 438 P.3d at 695 (Cruz, J., dissenting). Interpreting the Agreement, the dissent found the embryos must be donated. See id. ¶ 66. Alternatively, the dissent concluded the majority failed to accord due weight to the family court’s discretion in balancing the parties’ interests. See id. at 328 ¶ 71, 438 P.3d at 697.

¶11 We granted review because this case involves unique issues of statewide importance.

DISCUSSION

¶12 Neither party contests that the family court must enforce a contract between a couple that directs the disposition of embryos in the event of divorce. Subject to defenses prescribed by contract law, we agree. Our courts have traditionally enforced contracts between divorcing couples regarding the disposition of property.¹ See A.R.S. § 25-317(A)–(B) (providing that parties may enter into written separation agreements directing property dispositions and that courts must generally enforce those agreements). Similarly, other state courts addressing the disposition of embryos in dissolution proceedings have looked first to any existing contracts. See, e.g. , J.B. v. M.B. , 170 N.J. 9, 783 A.2d 707, 719 (2001) ; Kass v. Kass , 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174, 180 (1998) ; Davis , 842 S.W.2d at 597 ; Litowitz v. Litowitz , 146 Wash.2d 514, 48 P.3d 261, 267–68 (2002). We agree that agreements between couples regarding the disposition of their embryos "should generally be presumed valid and binding, and enforced in any dispute between them." Kass , 673 N.Y.S.2d 350, 696 N.E.2d at 180.

¶13 The dispute here is whether paragraph 10(H) of the Agreement leaves the dispositional choice to the courts’ discretion, as Torres argues and the lower courts concluded, or whether the Agreement requires donation of the embryos, as Terrell asserts and the court of appeals dissent found. We review the interpretation of the Agreement de novo as an issue of law. See Andrews v. Blake , 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7 (2003).

¶14 Despite the Agreement’s sensitive subject matter, we apply ordinary interpretive principles to arrive at its meaning. See Kass , 673 N.Y.S.2d 350, 696 N.E.2d at 180 ("The subject of this dispute may be novel but the common-law principles governing contract interpretation are not."). When interpreting a contract, we seek to discover and effectuate the parties’ expressed intent.

Taylor v. State Farm Mut. Auto. Ins. Co. , 175 Ariz. 148, 152, 854 P.2d 1134 (1993). To do so, we construe the provisions "according to their plain and ordinary meaning," First Am. Title Ins. Co. v. Johnson Bank , 239 Ariz. 348, 350 ¶ 8, 372 P.3d 292 (2016), unless it can be shown that the parties intended a special meaning, Taylor , 175 Ariz. at 153, 854 P.2d 1134. In doing so, we consider a provision’s meaning in the context of the entire contract. See Climate Control, Inc. v. Hill , 86 Ariz. 180, 188, 342 P.2d 854 (1959) ("A clause in a contract, if taken by itself, often admits of two meanings, when from the whole contract there is no reasonable doubt as to the sense in which the parties use it."). Finally, we attempt to reconcile and give effect to all terms of the contract to avoid any term being rendered superfluous. See Taylor , 175 Ariz. at 158 n.9, 854 P.2d 1134.

¶15 We start with paragraph 10(H), which sets forth the parties’ joint dispositional choice in the event of divorce or dissolution of the relationship. The parties clearly did not choose to destroy the embryos because they did not check the box indicating that choice. See supra ¶ 5. That leaves two options, both of which are the subject of the checked box: "A court decree and/or settlement agreement will be presented to [FTC] directing use to achieve a pregnancy in one of us or donation to another couple for that purpose." See id.

¶16 Read in isolation, paragraph 10(H) does not reveal how a court would choose between the options if the parties were unable to agree on the disposition...