Opinion
1 CA-CV 12-0280
05-16-2013
In re the Marriage of: APRIL ATWOOD, Petitioner/Appellant, v. RAINA RIVIOTTA, Respondent/Appellee,
April Atwood In Propria Persona Raina Riviotta In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure;
Appeal from the Superior Court in Maricopa
Cause No. FN2011-093631
The Honorable Eartha K. Washington, Judge Pro Tempore
REVERSED AND REMANDED
April Atwood
In Propria Persona
Gilbert Raina Riviotta
In Propria Persona
Phoenix THUMMA, Judge ¶1 April Atwood appeals the superior court's order dismissing a petition to annul her California marriage to Raina Riviotta. Because the superior court has the authority to annul the marriage and divide the parties' property upon annulment, the order is reversed and this matter is remanded.
FACTS AND PROCEDURAL HISTORY
¶2 Atwood and Riviotta, both female, are Arizona residents who were married in California on August 8, 2008. In October 2011, Atwood filed a petition for an annulment in Maricopa County Superior Court, arguing the marriage was void under Arizona law. Riviotta did not respond to the petition or a subsequent application for default. The superior court denied the petition and dismissed the case, finding it lacked authority to annul the parties' California marriage because same-sex marriages are not valid in Arizona. Atwood timely appeals, and this court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
¶3 Riviotta failed to file an answering brief and thereby confessed error. See Roddy v. County of Maricopa, 184 Ariz. 625, 626 n.1, 911 P.2d 631, 632 n.1 (App. 1996). On the merits, whether the superior court had the authority to address the petition is a question of law reviewed by this court de novo. State v. Donahoe, 220 Ariz. 126, 127 n.1, ¶ 1, 203 P.3d 1186, 1187 n.1 (App. 2009). ¶4 Atwood and Riviotta were legally married in California during the period when same-sex marriages were valid in California. See generally Strauss v. Horton, 207 P.3d 48 (Cal. 2009). In Arizona, "[u]nless strong public policy exceptions require otherwise, the validity of [a] marriage is generally determined by the law of the place of marriage." Donlann v. Macgurn, 203 Ariz. 380, 383, ¶ 12, 55 P.3d 74, 77 (App. 2002). Although valid in California, the parties' marriage falls under this strong public policy exception; by statute, under Arizona law, same-sex marriages are void in Arizona even if they are valid under the laws of the place where the marriage occurred. A.R.S. § 25-112(A); A.R.S. § 25-101(C); see also Ariz. Const. art. 30, § 1. Accordingly, the parties' California marriage is void in Arizona. ¶5 The superior court concluded that it could not annul the California marriage because it would first have to recognize the marriage as valid. To the contrary, an action to annul a marriage is based on the premise that the marriage is void. See A.R.S. § 25-301; see also Means v. Indus. Comm'n, 110 Ariz. 72, 75, 515 P.2d 29, 32 (1973) (noting action for annulment, unlike divorce proceeding, is "based upon a marriage that may be void or voidable"); 55 C.J.S. Marriage § 70 (2013) ("[T]he theory of an action to annul is that no valid marriage ever came into existence."). "[A]ny grounds rendering the marriage void or voidable should be available to grant an annulment . . ." Means, 110 Ariz. at 75, 515 P.2d at 32. Pursuant to A.R.S § 25-301, the superior court had the authority to void the parties' California marriage. Accordingly, the court had authority to grant Atwood's petition to annul, A.R.S. § 25-301, and to divide the parties' property upon annulment, A.R.S. § 25-302(B).
Courts in other jurisdictions that do not recognize same-sex marriages have concluded that they may annul, but not grant divorces for, such marriages. See, e.g., In re Marriage of J.B. and H.B., 326 S.W.3d 654, 667 (Tex. Ct. App. 2010); Kern v. Taney, 11 Pa. D & C 5th 558, 576 (Berks Cnty. Ct. Com. Pl. 2010). But see Christiansen v. Christiansen, 253 P.3d 153, 157 (Wyo. 2011) (court has jurisdiction to dissolve same-sex marriage lawfully performed in Canada, even though Wyoming law prohibited such marriages).
Given this reversal, this court need not address Atwood's constitutional challenge.
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CONCLUSION
¶6 The superior court's order dismissing Atwood's petition is reversed and this matter is remanded for further proceedings consistent with this decision.
______________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ______________________
MICHAEL J. BROWN, Judge
______________________
DIANE M. JOHNSEN, Judge