                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                             In re the Marriage of:

                 SAMANTHA EZELL, Petitioner/Appellant,

                                        v.

                   TIFFANY TAPIA, Respondent/Appellee.

                           No. 1 CA-CV 16-0411 FC
                                FILED 6-21-2018


           Appeal from the Superior Court in Maricopa County
                           No. FC2015-000218
                The Honorable Geoffrey H. Fish, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Campbell Law Group Chartered, Phoenix
By Claudia D. Work
Counsel for Petitioner/Appellant

Tiffany Tapia, Phoenix
Respondent/Appellee
                            EZELL v. TAPIA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Samantha Ezell appeals the superior court’s ruling that she is
not the legal parent of a child born to Tiffany Tapia while the two were
married. In light of the Arizona Supreme Court’s holding in McLaughlin v.
Jones, 243 Ariz. 29 (2017), and for reasons that follow, we reverse and
remand.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The relevant facts are not disputed. Ezell and Tapia, a same-
sex couple, legally married in Canada in May 2012. Tapia was artificially
inseminated with anonymous donor sperm and gave birth to a son, K., in
October 2012. Arizona did not recognize the parties’ marriage at the time
of K.’s birth, and only Tapia was listed as a parent on the birth certificate.
Ezell and Tapia agreed that K. and T. (Ezell’s child born in 2009) would be
raised as siblings by both parents.

¶3             In January 2015, Ezell filed a petition for dissolution of
marriage, seeking an order recognizing her parentage of K. as well as legal
decision-making and parenting time. Ezell argued, in pertinent part, that
she was K.’s legal parent because she and Tapia were married at the time
of K.’s birth. The superior court disagreed, reasoning that the plain
meaning of Arizona’s marital paternity presumption statute, Ariz. Rev.
Stat. (“A.R.S.”) § 25-814(A)(1)—under which a man is presumed to be the
father of a child born while he and the mother are married—did not apply
to Ezell, a woman, even though she and Tapia were married when K. was
born. The court also found that, even if the presumption applied, Tapia had
rebutted it under § 25-814(C) because the parties did not dispute that Ezell
had no biological connection with K.

¶4            Ezell appealed to this court, and we stayed the appeal
pending Arizona Supreme Court review in McLaughlin v. Jones, a
substantially similar case. The court has since rendered its decision in that
case, holding that “[b]ecause couples in same-sex marriages are



                                      2
                             EZELL v. TAPIA
                            Decision of the Court

constitutionally entitled to the ‘constellation of benefits [that] the States
have linked to marriage,’” the statutory presumption of parentage applies
to same-sex spouses. McLaughlin, 243 Ariz. at 31, ¶ 1 (quoting Obergefell v.
Hodges, 135 S. Ct. 2584, 2601 (2015)). The court further held that, based on
a joint parenting agreement between the parties before the child’s birth and
the parties’ actions in reliance on that agreement thereafter, the birth
mother was equitably estopped from rebutting her spouse’s presumptive
parentage of their child. Id. at 31, 38–39, ¶¶ 1, 41–43.

¶5             With no reason to continue the stay, we consider the appeal
in light of the decision in McLaughlin. We have jurisdiction under A.R.S. §
12-2101(A)(1).

                               DISCUSSION

¶6            Ezell requests that this court reverse the superior court’s order
that the marital presumption does not apply to her and that, even if it did
apply, Tapia could rebut the presumption. Ezell further requests that we
remand for further proceedings as necessary to comply with McLaughlin.

¶7            Given the Arizona Supreme Court’s holding in McLaughlin
that the § 25-814(A)(1) marital presumption of parentage applies to same-
sex couples, we reverse the superior court’s ruling to the contrary. And
based on McLaughlin’s holding that a parent may be equitably estopped
from rebutting the presumption of parentage, we vacate the superior
court’s ruling that Tapia had rebutted the presumption. Because there are
facts suggesting that Tapia may be equitably estopped from rebutting
Ezell’s presumption of parentage, we remand to permit the superior court
to consider the applicability of the equitable estoppel doctrine to the facts
of this case.

                               CONCLUSION

¶8            We reverse and remand for further proceedings consistent
with this decision.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA



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