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Ramirez Clark v. Kreamer

Court of Appeals of Arizona, First Division

November 14, 2017

THE HONORABLE JOSEPH KREAMER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, CLARENCE CHAO, Real Party in Interest.

         Appeal from the Superior Court in Maricopa County No. FC2015051018 The Honorable Joseph C. Kreamer, Judge JURISDICTION ACCEPTED; RELIEF DENIED.

          Berkshire Law Office, PLLC, Keith Berkshire, Erica L. Gadberry Counsel for Petitioner Ramirez Clark

          Udall Shumway PLC, Jonathan D. Brooks Counsel for Petitioner Ramirez

          Artemis Law Firm, PLLC, Michelle J. Roddy Counsel for Real Party in Interest

          Judge Maria Elena Cruz delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


          Maria Elena Cruz, Judge

         ¶1 Petitioners Kymberly Brooke Ramirez Clark ("Mother") and Daniel Joseph Ramirez ("Ramirez") are respondents in a paternity action filed by Real Party in Interest Clarence Chao ("Chao"). They seek special action relief from the superior court's order setting aside a portion of their consent decree of dissolution ("Decree"), in which Petitioners untruthfully asserted M.R. was Ramirez' child.

         ¶2 Special action jurisdiction is appropriate because this dispute involves a legal question of statewide importance relating to the best interests of a child. See Ariz. R. P. Spec. Act. 1(a); Alvarado v. Thomson, 240 Ariz. 12, 14, ¶ 10 (App. 2016). We accordingly accept special action jurisdiction but deny relief.


         ¶3 In 2004, before Mother's marriage to Ramirez, Mother was involved in sexual relationships with both Ramirez and Chao and became pregnant with M.R. Upon learning of the pregnancy, Chao asked Mother whether he was the father. Mother said Ramirez was the child's biological father, but Chao still asked Mother to contact him after the child was born to tell him whether she looked like Chao. Chao identifies as Asian American with distinct "Asian characteristics" and Mother identifies as Caucasian.

         ¶4 M.R. was born in February 2005. Mother and Ramirez were unmarried at the time, and no father was identified on M.R.'s birth certificate. After M.R.'s birth, Chao attempted to communicate with Mother, and after some months he was able to ask her whether M.R. looked like him. Saying M.R. was "100 percent" Ramirez' and "doesn't look anything like you at all, " Mother insisted Chao was not M.R.'s biological father.

         ¶5 Mother and Ramirez married in 2007, two years after M.R.'s birth, but they divorced in 2012. Ramirez never adopted M.R., nor did Petitioners ever attempt to modify M.R.'s birth certificate to identify Ramirez as M.R.'s father. Therefore, under Arizona law, during the entirety of Petitioners' marriage M.R. had only one legal parent. See Ariz. Rev. Stat. ("A.R.S.") §§ 8-117(A) ("On entry of the decree of adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent thereafter exist between the adopted child and the adoptive parent as though the child were born to the adoptive parent in lawful wedlock.") (emphasis added), 25-814(A)(3) ("A man is presumed to be the father of the child if . . . [a] birth certificate is signed by the mother and father of a child born out of wedlock."), partially invalidated on other grounds by McLaughlin v. Jones, 243 Ariz. 29 (2017). In her petition for dissolution of marriage, Mother falsely acknowledged Ramirez' paternity of M.R. Likewise, Ramirez acknowledged paternity of M.R. in his response. Three months after Mother filed her petition for dissolution of marriage, the superior court issued the Decree, which recognized Ramirez as M.R.'s father, provided him with joint custody, and did not require him to pay child support.

         ¶6 Mother and Chao did not communicate after Mother told Chao Ramirez was M.R.'s father. However, in 2014, two years after Mother and Ramirez divorced, Chao looked at Mother's social media account and found pictures of M.R. Chao noted that M.R. resembled him and had "Asian characteristics" which he described as a flatter face, lower nose bridge, thick straight jet-black hair, and dark, almond-shaped eyes with epicanthic folds in the corners. Within a week or two of seeing M.R.'s pictures on Mother's social media, Chao emailed Mother to ask again whether M.R. was his daughter. Mother responded, "Yes, I do think you are the biological father. When it first happened I didn't think so, but as she has gotten older she looks a lot like you." Chao stated he would like to be part of M.R.'s life and offered to pay for child support and counseling to properly introduce him to M.R. Initially, Mother agreed and said she would like M.R. to know her biological father.

         ¶7 Over the next three months, Mother sent Chao pictures of M.R. and stated she was willing to allow Chao to meet M.R., but she said it was too soon at that time. She also admitted, "I do not think a DNA test is necessary since she looks just like you." Although Mother initially agreed to allow M.R. to complete DNA testing, she did not have M.R.'s DNA tested. Then, three months after first admitting Chao was M.R.'s biological father, Mother told Chao it was a ...

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