R.A.J. v. L.B.V.

• Decision Date: 20 August 1991
• Docket Number: CA-CV,No. 1,1
• Citation: 169 Ariz. 92,817 P.2d 37
• Parties: R.A.J., Petitioner-Appellant, v. L.B.V., Respondent-Appellee. 90-321.
• Court: Arizona Court of Appeals

Page 37

817 P.2d 37

169 Ariz. 92

R.A.J., Petitioner-Appellant, v. L.B.V., Respondent-Appellee.

No. 1 CA-CV 90-321.

Court of Appeals of Arizona Division 1, Department C.

Aug. 20, 1991.

[169 Ariz. 93] Law Offices of William M. Spence, P.C. by William M. Spence, Chandler, for petitioner-appellant.

Law Offices of Sharon A. O'Brien-Reyes and Annlouise Ferguson, P.C. by Sharon A. O'Brien-Reyes, Mesa, for respondent-appellee.

OPINION

EHRLICH, Presiding Judge.

R.A.J. appeals from a trial court order vacating its prior order determining Mr. J.s' paternity of a child born to L.B.V., the wife of W.V. The issue on appeal is whether the trial court erred in vacating the order based upon its conclusions that: (1) it lacked jurisdiction to enter the order of paternity because the action had been filed prior to the child's birth and because the mother of the child was married to another person at the time the child was conceived and born; (2) the appearance of the mother's husband's name on the birth certificate as father of the child determined that Mr. J. was not the father; and (3) it would be in the best interests of the child to vacate the order of paternity. We hold that the trial court did have jurisdiction over the paternity action and that Mr. V.'s name as the father on the birth certificate was not dispositive of the issue of paternity. Accordingly, we reverse the decision of the trial court and remand this matter to it. On remand, Mr. V. should be a party to the action as should the child, and a guardian ad litem should be appointed by the trial court to protect the interests of the child. Then the best interests of the child can be reexamined.

I. FACTS

Before the birth of the child to Mrs. V., Mr. J. filed a paternity action, claiming that he is the father. Shortly thereafter, Mrs. V. gave birth. At the time of the conception and birth, Mrs. V. was married to Mr. V. Blood tests were conducted to ascertain paternity. These tests indicated that Mr. V. could not be the father, but that Mr. J. was the father by a probability factor of 99.25%.

Mrs. V. and Mr. J. stipulated to an order of paternity declaring Mr. J. to be the father of the child. Mrs. V. was awarded custody, and Mr. J. was given visitation privileges and ordered to pay child support. Mrs. V. subsequently filed a motion to vacate the order of paternity, which the trial court granted pursuant to Rule 60(c), A.R.Civ.P. Mr. J. then appealed to this court.

II. TRIAL COURT JURISDICTION OVER PATERNITY ACTION

In vacating the paternity order, the trial court ruled that it had lacked jurisdiction to enter its original order because the action had been filed prior to the birth and because the mother was married to a man other than the putative father at the time of the conception and birth. Generally, we will not set aside a judgment under Rule 60(c) unless a clear abuse of the trial court's discretion is shown. Bickerstaff v. Denny's Restaurant, Inc., 141 Ariz. 629, 633, 688 P.2d 637, 641 (1984); Staffco, Inc. v. Maricopa Trading Company, 122 Ariz. 353, 356, 595 P.2d 31, 34 (1979). However, we independently review the jurisdiction of the trial court as an issue of law. See Tovrea Land and Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 52 (1966).

Mr. J.s' claim that he procedurally was correct in filing the paternity claim prior to the child's birth is supported by A.R.S. § 12-844. That statute provides that "[p]roceedings to establish the paternity of the child may be instituted during the pregnancy of the mother or after the birth of the child." The issue then is whether, as the putative father, he was entitled to file a paternity action at all. ¹

Mrs. V. contends that no one is authorized to bring a paternity action when the mother is married at the time of a child's conception and birth. Mr. J. argues that he, as the putative father, may initiate a paternity action regardless of the mother's marital status. Each begins by positing a different interpretation of A.R.S. § 12-846(B), which provides that a paternity action may 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.

Mrs. V. argues that the statute applies only to children born out of wedlock, a status not applicable to her child whose mother was married. Mr. J. responds that the phrase "born out of wedlock" only limits when a guardian or best friend may initiate paternity proceedings and does not limit when a mother or father may bring an action.

In Ban v. Quigley, 168 Ariz. 196, 812 P.2d 1014 (App.1990), the court considered this issue. In determining the legislative intent behind § 12-846, it examined A.R.S. § 12-843(A), which states:

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.

The court concluded that the phrase "out of wedlock" in § 12-846(B) limits when a guardian or best friend may bring a paternity action; it does not affect when a mother or father may initiate such a proceeding. Id. at 199, 812 P.2d at 1017. We agree with this interpretation of § 12-846(B); the marital status of the mother is irrelevant when either the mother or the father brings the action.

Mrs. V. then argues that Mr. J. lacked standing to bring the action because he legally was not the "father" listed in A.R.S. § 12-843(A) as one of those who may commence the paternity proceedings provided for in A.R.S. § 12-846(B). She draws strength for her argument from A.R.S. § 36-322(E), which provides that the husband of a woman married at the time of the conception and birth is "presumed to be the father of the child."

In Ban, the court considered whether the word "father" in A.R.S. §§ 12-843(A) and 12-846(B) was "intended to mean the putative father, presumed or otherwise." At 199, 812 P.2d at 1017. In concluding that it was, the court observed:

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.

Id. We agree with this reasoning. Mr. J. did have standing to initiate the action.

We therefore hold that the trial court did have jurisdiction over the paternity action filed by Mr. J. prior to the birth of the child.

III. LEGAL CONSEQUENCE OF HUSBAND'S NAME ON BIRTH CERTIFICATE

Mr. J. argues that the trial court erred in relying upon the listing of Mr. V.'s name as the father on the birth certificate because that name was used only until the issue of paternity could be resolved. Mrs. V. contends that her consent is required to change the name of the father, and that Mr. J. cannot base his claim of parentage upon the possibility that the name on the birth certificate may change.

While A.R.S. § 36-322(E) provides that the mother's husband at the time of the child's conception and birth is the presumptive father whose name will appear on the birth certificate, this presumption is not irrebutable. The same statute also states that a new birth certificate may be issued when a court has determined paternity, at which time "the name of the man so adjudged shall be entered on the record as the father." This is in accord with another statute, A.R.S. § 36-326(A)(3), which provides for the issuance of a new birth certificate following a court determination of paternity.

Because the paternity of the child could not be determined until after the child's birth, under § 36-322(E), Mr. V.'s name necessarily appeared as that of the father on the birth certificate. However, as both that statute and § 36-326(A)(3) demonstrate, this listing does not foreclose a future determination of paternity. The trial court erred in relying upon the presence of Mr. V.'s name on the birth certificate as a basis for vacating the order.

IV. BEST INTERESTS OF THE CHILD

The trial court concluded that it would be in the best interests of the child to vacate the paternity order as that would help to preserve the family unit and the child's relationship with Mrs. V.'s husband and other children. There are two errors in this approach: First, the determination of the best interests of the child must be made separately, after the resolution of biological paternity. Second, the child was not named as a party to the paternity action and did not have a guardian ad litem to advocate the child's interests. Although neither party raised the issue, we may raise on our own the question of the proper representation of a child in a paternity proceeding. Fort v. Chester, 731 S.W.2d 520, 522 (Mo.App.1987).

As to the issue of biological paternity, the record reflects that according to blood tests already conducted, Mr. V. is not biologically related to the child. The tests showed Mr. J. to be the father by a probability factor of 99.25%.

The second issue is not as neatly resolved. Rule 19(a), A.R.Civ.P., requires that a person be joined as a party to an action if the person "claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest ..."

In J.M.L. v. C.L., 536 S.W.2d. 944, 946 (Mo.App.1976), a child was at issue in a paternity action brought by the putative father. The court declared the child to be a necessary party for purposes of the litigation.

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