Ban v. Quigley
| Decision Date | 15 November 1990 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 168 Ariz. 196,812 P.2d 1014 |
| Parties | , 59 USLW 2388 Anna Marie BAN and Ronald Rikkio Ban, Petitioners, v. The Honorable John M. QUIGLEY, a Judge Pro Tempore for the Superior Court of the State of Arizona, County of Pima, Respondent, and Mark FRAUENFELD, Real Party in Interest. 90-0157. |
| Court | Arizona Court of Appeals |
The natural mother of a child born in November 1985 and the mother's husband seek special action relief from the trial court's order that the real party in interest (the putative father), the mother, and the child submit to a blood test for a determination of the probability of the real party in interest's paternity of the child. Because this case raises a matter of statewide importance and because we conclude that petitioners have no equally plain, speedy, or adequate remedy by direct appeal, we accept jurisdiction and grant relief.
According to the putative father's affidavit, he lived with the mother from July until December 1985, one month after the child's birth. He contends they had been having sexual relations since February 1985. Throughout this period, however, the mother was married to petitioner, her present husband. The husband claims to be the father of the child, whom he has supported and treated as his own since his reconciliation with the mother, apparently sometime in December 1985.
On April 30, 1990, the putative father filed a paternity action. In May the mother moved to dismiss the complaint on numerous grounds, including some of the arguments raised in this special action. The trial court rejected the mother's argument that the statute does not permit the putative father to maintain such an action but found that the petition failed to comply with certain statutory requirements and failed to join the mother's husband, an indispensable party. The court dismissed the complaint without prejudice, and the putative father filed an amended complaint and a motion for blood tests. Petitioners opposed the motion, incorporating their previously filed motion to dismiss. The court granted the motion without an evidentiary hearing on whether the tests were in the child's best interests, as petitioners had requested.
The issues raised are whether Arizona's paternity statute permits a putative father to bring a paternity action only when the child is born out of wedlock and whether the trial court should have made a determination regarding the best interests of the child before allowing the paternity action to proceed and ordering blood tests. 1
Petitioners argue that Arizona's statute does not contemplate the filing of a paternity action by a person claiming to be the child's father when the child is not born out of wedlock. A.R.S. § 12-846(B) provides, in pertinent part, as follows:
The paternity proceeding may also be commenced by the filing of a verified complaint by the mother or father, with the mother or father as plaintiff, or by the guardian or best friend of a child or children born out of wedlock.
The petitioners argue that the phrase "born out of wedlock" modifies all the parties listed and not just the clause, "guardian or best friend of a child or children."
In interpreting a statute, we give it a reasonable, rational, and sensible construction that will accomplish the legislative intent. Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953). In doing so, we look at the words, the context and subject matter, the effects and consequences of the statute, and other acts that are in pari materia. State v. McGriff, 7 Ariz.App. 498, 441 P.2d 264 (1968). Moreover, we construe provisions to harmonize rather than contradict one another "if sound reasons and good conscience allow." City of Mesa v. Salt River Project Agricultural Improvement & Power District, 92 Ariz. 91, 98, 373 P.2d 722, 727 (1962). Although we agree that § 12-846, when read alone, is somewhat ambiguous, to give the provision logical meaning and in an attempt to discern the legislature's intent, we refer to A.R.S. § 12-843, which provides, in pertinent part, as follows:
A. Proceedings to establish the maternity or paternity of a child or children and to compel support under this article may be commenced by any of the following:
1. The mother.
2. The father.
3. The guardian, conservator or best friend of a child or children born out of wedlock.
Had the legislature intended to limit proceedings brought by either the mother or father to situations in which the child or children are born out of wedlock, it would have done so by including that phrase in subsections 1 and 2 above. Moreover, we do not believe that a logical construction of the provisions lends itself to the interpretation urged by petitioners. Under their construction, notwithstanding the status of a mother's marriage or whether her husband disavows paternity of the child born during the marriage, the mere fact that the mother was married at the time the child was born would forever preclude her from bringing a paternity action against the individual she claims is the father. Similarly, a putative father would be unable to bring an action to establish paternity of a child born during the mother's marriage to her husband, even if the mother and the husband later separated or divorced or in the event the mother died. We do not believe the legislature intended those results.
We also reject petitioners' argument that the word "father" in the statute was meant to include the presumptive father, that is, the mother's husband, as opposed to the putative father. Although we acknowledge the evidentiary presumption in favor of the husband's paternity, see State v. Mejia, 97 Ariz. 215, 399 P.2d 116 (1965), and Coffman v. Coffman, 121 Ariz. 522, 591 P.2d 1010 (App.1979), we find no support for this argument in the statute itself. The statute does not define the term "father." The history of the statutory provisions, however, leads us to the conclusion that the term was intended to mean the putative father, presumed or otherwise. Prior to the 1985 amendment to § 12-846, subsection B did not contain the term "father." Such "fathers" or, stated more accurately, individuals claiming to be fathers, were unable to bring an action under the statute to have themselves declared fathers. Allen v. Sullivan, 139 Ariz. 142, 677 P.2d 305 (App.1984). The amendment, therefore, must have been intended to provide standing to commence a paternity action to a putative father, who may or may not be the husband of the mother at the time the child is born.
Arizona has a strong public policy of preserving the family unit when neither the mother nor the mother's husband disavows the latter's paternity of the child. Because of that policy, we conclude that the trial court must specifically consider whether it would be in the best interests of the child for the case to proceed before a putative father may be permitted to seek blood tests in an attempt to rebut the presumption of the husband's paternity.
In McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254 (1987), the Washington Supreme Court held that before a person outside the family unit can proceed with a paternity action under the Uniform Parentage Act (UPA), the trial court should consider the action's impact upon the child and the child's best interests. The court noted that the UPA contemplates that the child's interests be considered, requiring that the child be joined as a party, without which the court will be deprived of jurisdiction, and that a guardian ad litem be appointed. The court also observed that, depending upon the circumstances, a child's interests may be better served by maintaining a stable existing family relationship rather than allowing a paternity action to proceed, ruling that "the court must balance the interests of all parties involved, while keeping in mind that the child's interests are paramount." Id. at 312, 738 P.2d at 262. Although Arizona has not adopted the UPA, we find the court's public policy reasoning persuasive.
In C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365 (1990), the Massachusetts Supreme Judicial Court...
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