Arizona Court ofAppeals Division One Holds That a Husband Who Admits He Is the Father of a Child During Divorce Proceedings Is Precluded from Contesting His Paternity in a Later Proceeding.

The child (“Daughter”) at issue, in this case, was born in 1996, while Christopher Marc Pettit (“Father”) and Bonnie Sue Pettit (“Mother”) were living together.  They married in 1999, but Mother filed for divorce in 2002.  During the divorce proceedings, Mother alleged, and Father admitted, that Daughter was a child of the marriage, and the decree of dissolution also found that fact before ordering Father to pay child support.  Father did not appeal the decree, but in 2006, sought an order requiring paternity testing and to terminate of child support.  The trial court dismissed Father’s motions due to the presumption that Daughter was his child, and Father appealed.

TheArizonaAppeals Court affirmed, but on different grounds.  It held that Father’s paternity was established by the dissolution decree and that he, therefore, was precluded from contesting that fact.  The Court noted that both parties agreed that the trial court erred by relying on the presumption that Daughter was Father’s child, but explained that it would affirm based on any legal theory supported by the record.  After setting forth the standard for claim preclusion, and without explicitly applying that standard to the facts of the case, the Court discussed and rejected Father’s arguments that his claim was not precluded. 

First, the Court rejected Father’s argument that the trial court lacked subject matter jurisdiction over the paternity issue, explaining that a trial court’s jurisdiction in a dissolution proceeding is not limited to children born during the marriage, and instead includes children “common to the parties of the marriage.”  A.R.S. § 25-312(4) (2007).  For purposes of this argument, the Court assumed, without deciding, that a party could collaterally attack a former judgment if it was entered by a court lacking subject matter jurisdiction.  Second, the Court rejected Father’s argument that the paternity action is separate and distinct from the divorce proceedings.  It applied the “same evidence” test to find that Father was attempting to relitigate a matter “necessarily adjudicated” in the divorce action.  Third, the Court rejected Father’s contention that claim preclusion did not apply because the issue of paternity was not actually litigated.  Unlike issue preclusion, claim preclusion applies regardless of whether an issue was actually litigated as long as the issue could have been litigated in the first action.  Because father could have raised paternity as an issue in the divorce proceeding, he was precluded from doing so now.

Judge Hall authored the opinion; Presiding Judge Ehrlich and Judge Snow concurred.