Hughes v. Creighton, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtROLL
Citation165 Ariz. 265,798 P.2d 403
Docket NumberCA-CV,No. 2
Decision Date12 April 1990
PartiesEdgar Garrett HUGHES, Plaintiff/Appellee, Cross-Appellant, v. Majel Margaret CREIGHTON, Defendant/Appellant, Cross-Appellee. 89-0216.

Page 403

798 P.2d 403
165 Ariz. 265
Edgar Garrett HUGHES, Plaintiff/Appellee, Cross-Appellant,
v.
Majel Margaret CREIGHTON, Defendant/Appellant, Cross-Appellee.
No. 2 CA-CV 89-0216.
Court of Appeals of Arizona,
Division 2, Department A.
April 12, 1990.
Review Denied Oct. 9, 1990.

Page 404

[165 Ariz. 266] Cromwell, Pratte, Ameln & U'Ren by Deborah Pratte and Stephen U'Ren, Tucson, for plaintiff/appellee, cross-appellant.

Jack J. Rappeport, for defendant/appellant, cross-appellee.

OPINION

ROLL, Judge.

Defendant Majel Margaret Creighton appeals from the judgment awarding visitation rights to Edgar Garrett Hughes. Hughes cross-appeals the court's refusal to conduct child support hearings. Because Hughes is not a parent of the child and fails to meet any of the other statutory grounds for visitation, we reverse the trial court's award of visitation. We affirm the trial court's refusal to consider child support.

FACTS

While Hughes and Creighton were dating, Creighton became pregnant and informed Hughes that he was the father. They attended birthing classes together and Hughes signed the child's birth certificate, acknowledging that he was the father.

Creighton lived with her mother for three and one-half months following the child's birth, and Hughes visited the child daily. Hughes and Creighton then lived together as husband and wife, but did not marry. Hughes and the child developed a close father-son relationship and Hughes provided financial support. After sixteen months, Creighton moved, took the child with her, and declared that Hughes was not the father of the child. Hughes immediately filed a paternity action.

PROCEDURAL HISTORY

Hughes filed a Special Paternity Action under A.R.S. § 12-841 et seq., alleging that he was the child's natural father and requesting that visitation rights be determined. The parties stipulated to temporary visitation between Hughes and the child pending the outcome of the court proceedings. Court-ordered blood tests established that Hughes is not the child's natural father. Following hearings, the trial court determined that Hughes was in locos parentis to the child and that visitation was in the best interest of the child. Creighton appeals from this judgment. The trial court also found that it did not have jurisdiction to order Hughes to pay child support. Hughes appeals from this judgment.

ISSUES ON APPEAL

Creighton argues that once the trial court determined that Hughes was not the biological father of the child, it lacked jurisdiction to award visitation rights to Hughes. Hughes cross-appeals, arguing

Page 405

[165 Ariz. 267] that the trial court has jurisdiction to order him to pay child support.

Standard of Review

Subject matter jurisdiction is a conclusion of law and is therefore reviewed de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966).

Jurisdiction Over Visitation Rights

Creighton argues that the trial court lacked jurisdiction to award visitation rights, citing under A.R.S. § 25-331 and Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (App.1982).

The action was filed as a special paternity action under A.R.S. § 12-843. A.R.S1. § 12-843 states in part:

A. Proceedings to establish the ... paternity of a child ... under this article may be commenced by any of the following:

* * * * * *

2. The father.

B. Any party to a proceeding under this article may request that specific visitation be determined as part of the proceeding. The court may award visitation as provided in § 25-337 after a hearing.

Hughes sought determination of paternity and requested that visitation rights be awarded. The uncontroverted evidence is that Hughes is not the biological father of the child. Hughes maintains that even though the issue of paternity was resolved against him, the trial court could nevertheless proceed to award visitation.

When § 12-843 was amended in 1985 to permit the alleged father to file a paternity action, the legislature stated that the purpose of the amendment was to prescribe standards for the award of visitation, prescribe persons who may file maternity and paternity complaints, provide for child support determination and provide for the filing of a custody petition, for a child born out of wedlock, after a paternity action. 2 The legislature also amended § 25-331, the jurisdictional section of the child custody statute by adding subsection C:

B. A child custody proceeding is commenced in the superior court:

1. By a parent, by filing a petition for either of the following:

(a) Dissolution or legal separation.

(b) Custody of the child in the county in which the child is permanently resident or found.

2. By a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but...

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27 practice notes
  • Simmons v. Comer, No. 21459
    • United States
    • Supreme Court of West Virginia
    • December 13, 1993
    ...(1988); 6 In re Custody of Dombrowski, 41 Wash.App. 753, 705 P.2d 1218[190 W.Va. 356] Page 536 (1985). The court in Hughes v. Creighton, 165 Ariz. 265, 798 P.2d 403 (App.1990), concluded that it lacked jurisdiction to consider a claim for visitation because there was no statutory authorizat......
  • Riepe v. Riepe, 1 CA-CV 03-0184 (AZ 6/29/2004), 1 CA-CV 03-0184
    • United States
    • Supreme Court of Arizona
    • June 29, 2004
    ...that the legal meaning of "`parent' in the domestic relations statutes is a biological or adoptive parent"); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App. 1990) (recognizing the common usage of a parent as "one who begets offspring"); State v. Wilhite, 160 Ariz. 228, 229-......
  • Riepe v. Riepe, No. 1 CA-CV 03-0184.
    • United States
    • Court of Appeals of Arizona
    • May 25, 2004
    ...that the legal meaning of "`parent' in the domestic relations statutes is a biological or adoptive parent"); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App.1990) (recognizing the common usage of a parent as "one who begets offspring"); State v. Wilhite, 160 Ariz. 228, 229-3......
  • Egan v. Fridlund-Horne, No. 1 CA-SA 08-0240.
    • United States
    • Court of Appeals of Arizona
    • April 14, 2009
    ...or any similar common law doctrine. See Finck v. O'Toole, 179 Ariz. 404, 406-07, 880 P.2d 624, 626-27 (1994); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App.1990) (prior to enactment of § 25-415, holding that a former boyfriend could not seek visitation rights to the child ......
  • Request a trial to view additional results
27 cases
  • Simmons v. Comer, No. 21459
    • United States
    • Supreme Court of West Virginia
    • December 13, 1993
    ...(1988); 6 In re Custody of Dombrowski, 41 Wash.App. 753, 705 P.2d 1218[190 W.Va. 356] Page 536 (1985). The court in Hughes v. Creighton, 165 Ariz. 265, 798 P.2d 403 (App.1990), concluded that it lacked jurisdiction to consider a claim for visitation because there was no statutory authorizat......
  • Riepe v. Riepe, 1 CA-CV 03-0184 (AZ 6/29/2004), 1 CA-CV 03-0184
    • United States
    • Supreme Court of Arizona
    • June 29, 2004
    ...that the legal meaning of "`parent' in the domestic relations statutes is a biological or adoptive parent"); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App. 1990) (recognizing the common usage of a parent as "one who begets offspring"); State v. Wilhite, 160 Ariz. 228, 229-......
  • Riepe v. Riepe, No. 1 CA-CV 03-0184.
    • United States
    • Court of Appeals of Arizona
    • May 25, 2004
    ...that the legal meaning of "`parent' in the domestic relations statutes is a biological or adoptive parent"); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App.1990) (recognizing the common usage of a parent as "one who begets offspring"); State v. Wilhite, 160 Ariz. 228, 229-3......
  • Egan v. Fridlund-Horne, No. 1 CA-SA 08-0240.
    • United States
    • Court of Appeals of Arizona
    • April 14, 2009
    ...or any similar common law doctrine. See Finck v. O'Toole, 179 Ariz. 404, 406-07, 880 P.2d 624, 626-27 (1994); Hughes v. Creighton, 165 Ariz. 265, 268, 798 P.2d 403, 406 (App.1990) (prior to enactment of § 25-415, holding that a former boyfriend could not seek visitation rights to the child ......
  • Request a trial to view additional results

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