Sheldrick v. Maricopa County Superior Court, 16461-SA

• Decision Date: 14 June 1983
• Docket Number: No. 16461-SA,16461-SA
• Citation: Sheldrick v. Maricopa County Superior Court, 136 Ariz. 329, 666 P.2d 74 (Ariz. 1983)
• Parties: Cheryl SHELDRICK, Petitioner, v. MARICOPA COUNTY SUPERIOR COURT and the Honorable Cheryl Hendrix, Respondents, STATE of Arizona (by and through the Maricopa County Attorney's Office), Real Party in Interest.
• Court: Arizona Supreme Court

Page 74

666 P.2d 74

136 Ariz. 329

Cheryl SHELDRICK, Petitioner, v. MARICOPA COUNTY SUPERIOR COURT and the Honorable Cheryl Hendrix, Respondents STATE of Arizona (by and through the Maricopa County Attorney's Office), Real Party in Interest.

No. 16461-SA.

Supreme Court of Arizona In Banc.

June 14, 1983.

Feder Law Office, P.A. by Bruce Feder, Phoenix, for petitioner.

Thomas E. Collins, Maricopa County Atty. by C.O. Lamp, Deputy County Atty., Phoenix, for respondents.

CAMERON, Justice.

The defendant-mother, Cheryl Sheldrick, moved to dismiss a paternity action in the Maricopa County Superior Court. From a denial of the motion, she brought a petition for special action which we granted because there is no plain, speedy or adequate remedy at law. We have jurisdiction pursuant to the Rules of Procedure for Special Actions, 17A A.R.S., and Ariz. Const. art. 6 § 5(1).

We must consider two issues on review:

1. May a father affirmatively assert his parentage pursuant to A.R.S. § 12-846?

2. May the county attorney bring a paternity action on behalf of the putative father pursuant to A.R.S. § 12-2456?

The facts necessary for the determination of these issues are as follows. Prior to the birth of the child in question, the mother and Michael Stenger lived together. The relationship deteriorated and Michael Stenger moved out. The child was born on 23 January 1982, and the birth certificate did not contain the name of the natural father. Michael Stenger did not pay the expenses of the childbirth or child support, even though he was trying to reinstate his old relationship with the mother, and to initiate a relationship with "his son." The mother has never requested child support nor medical expenses from Michael, contending she is capable of raising the child herself. Apparently at the urging of Michael, the Maricopa County Attorney filed a complaint in Maricopa County Superior Court seeking "[t]hat a Judgment be entered finding Michael Stenger to be the father of the child Aaron Michael Sheldrick, born to Cheryl Sheldrick." Stenger was not a party to the action, and was not otherwise identified in the complaint's caption. Nevertheless, the county attorney prayed that Mr. Stenger be ordered to pay monthly child support to the mother. Michael Stenger signed the verification statement appended to the complaint, acknowledging the allegation of parentage. Counsel for the mother moved to dismiss the complaint pursuant to Rule 12(b), Rules of Civil Procedure, 16 A.R.S. The core of the mother's motion is that state-financed legal agencies are not legislatively authorized to "represent" persons seeking to establish their parentage under A.R.S. § 12-846. The motion to dismiss was denied, and the mother brought this petition for special action.

PROPRIETY OF STATUTORY PATERNITY ACTION AGAINST THE MOTHER

A.R.S. § 12-846 reads as follows:

A. Paternity proceedings are commenced by the filing of a verified complaint by the county attorney in the name of the state alleging that a woman is delivered of a child or children born out of lawful wedlock * * * and alleging that the defendant is the father of the child or children.

B. The proceeding may also be commenced by the filing of a verified complaint by the mother, with the mother as plaintiff, or by the guardian or best friend of a child or children born out of wedlock. In any action in which the state is not the plaintiff, the state may intervene and be named as coplaintiff.

C. Maternity proceedings are commenced by filing of a verified complaint by the county attorney in the name of the state alleging that a woman is delivered of a child or children born out of lawful wedlock and alleging that such woman as defendant is the mother of the child or children.

D. The proceeding may also be commenced by the filing of a verified complaint by the father, with the father as plaintiff or by the guardian or best friend of a child or children born out of wedlock. In any action in which the state is not the plaintiff, the state may intervene and be named as coplaintiff.

A plain reading of this statute indicates that the state, a mother, guardian, or best friend may bring a paternity action against the father (subsections A and B), and that the state, a father, guardian, or best friend may bring a maternity action against the mother (subsections C and D). The statute does not provide for the bringing of a paternity action against the mother, nor a maternity action against the father. We find nothing in the statute which would allow the county attorney to bring a paternity action against the mother.

PROPRIETY OF COUNTY ATTORNEY'S PARTICIPATION

As noted above, the instant paternity action was brought by the State of Arizona as the plaintiff and with the mother as the defendant. The state contends that it has the power to bring this action pursuant to A.R.S. § 12-2456 which...