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In re Marriage of Doty-Perez

Court of Appeals of Arizona, First Division

December 29, 2016

In re the Marriage of: SUSAN M. DOTY-PEREZ, Petitioner/Appellant,
v.
TONYA L. DOTY-PEREZ, Respondent/Appellee.

         Appeal from the Superior Court in Maricopa County No. FN2015-001747 The Honorable Suzanne E. Cohen, Judge.

         AFFIRMED.

          Gregg R. Woodnick PLLC, Phoenix By Leslie A.W. Satterlee, Markus W. Risinger Counsel for Petitioner/Appellant

          Berkshire Law Office PLLC, Phoenix By Keith Berkshire, Megan Lankford Counsel for Respondent/Appellee

          Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler[1] joined.

          OPINION

          THOMPSON, JUDGE.

         ¶1 Appellant, Susan M. Doty-Perez (Susan), seeks reversal of the family court's order denying her request to be declared a legal parent of four children legally adopted by her ex-spouse while they were married, in light of the United States Supreme Court's marriage equality decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015). For the following reasons, we affirm the family court's decision.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 Susan and Appellee, Tonya L. Doty-Perez (Tonya), began living together in October 2010. Tonya adopted a child, who is not a subject of this appeal, two months later. The parties were legally married in Iowa in July 2011, but at all relevant times resided in Arizona.

         ¶3 Subsequent to their marriage, the parties agreed that Tonya would adopt four special needs children from foster care in May 2012, January 2013, April 2013, and February 2014, respectively. While the parties agreed Tonya would be the adoptive parent, they intended to raise the four children together, as two parents. They would have adopted the children together but could not because, at the time of the adoptions, Arizona did not recognize same-sex marriage and legally prohibited same-sex adoptions.

         ¶4 At some point, the parties' relationship began to erode. Susan alleges that, as their relationship was ending, on April 8, 2014, she asked Tonya for permission to adopt the children through a second-parent adoption, but Tonya did not consent. Susan moved out of the marital residence on April 12, 2014. She did not petition to adopt the children.

         ¶5 On October 7, 2014, the Ninth Circuit declared non- recognition of same-sex marriage unconstitutional in Latta v. Otter, 771 F.3d 456, 464-65 (9th Cir. 2014). On October 17, 2014, in Majors v. Horne, 14 F.Supp.3d 1313, 1315 (D. Ariz. 2014), the U.S. District Court for the District of Arizona declared Arizona's ban on same-sex marriage unconstitutional, and enjoined the state from enforcing its ban. Susan filed a Petition for Dissolution of Non-Covenant Marriage Without Minor Children and also requested in loco parentis visitation on April 14, 2015. She later clarified the latter was a temporary orders request.[2] In May 2015, Susan requested to amend her petition to a "Petition to [sic] Dissolution of Marriage WITH children and request for joint legal decision making and parenting time."

         ¶6 In June 2015, the United States Supreme Court decided Obergefell. In that case, the Court held the Fourteenth Amendment requires states to both license same-sex marriages and to recognize same-sex marriages that were lawfully licensed and performed in another state. Obergefell, 576 U.S. at ___, 135 S.Ct. at 2593-608.

         ¶7 The following month, Susan filed a "Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children." After additional briefing and oral argument, the court issued an order denying Susan's petition to be declared a legal parent. In its order, the court found: (1) Susan "has proven by a preponderance of the evidence that had Arizona allowed same-sex-marriage and adoption at the time of the adoption of the four (4) children, the parties would have jointly adopted the children;" (2) after October 17, 2014, Susan could have filed a legal request to adopt ...


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