In re the Marriage of: SUSAN M. DOTY-PEREZ, Petitioner/Appellant,
TONYA L. DOTY-PEREZ, Respondent/Appellee.
from the Superior Court in Maricopa County No. FN2015-001747
The Honorable Suzanne E. Cohen, Judge.
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
Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Charles W.
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
AND PROCEDURAL HISTORY
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.
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.
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.
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. 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."
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.
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 ...