Opinion
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ANN HOFFMAN, Petitioner,
v.
THE HONORABLE KEITH MILLER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge,
v.
MATTHEW HOFFMAN, Real Party in Interest
No. 1 CA-SA 23-0001 FILED 4-27-2023
Petition for Special Action from the Superior Court in Maricopa County No. FN2022-090673
The Honorable Keith Miller, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Berkshire Law Office, Tempe By Keith Berkshire, Alexandra Sandlin Counsel for Petitioner
The Weingart Firm, PLLC, Tempe By Adam Weingart Co-Counsel for Real Party in Interest
Hoffman Legal, LLC, Phoenix By Amy Wilkins Hoffman Co-Counsel for Real Party in Interest
Opinion of the Court
OPINION
Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Randall M. Howe and Chief Judge Kent E. Cattani joined.
T H U M M A, Judge:
¶1 Ann Hoffman seeks special action review of an order granting Matthew Hoffman’s motion to convert her petition for dissolution of marriage into a petition for annulment and vacating temporary orders. Accepting special action jurisdiction, this court grants relief.
FACTS AND PROCEDURAL HISTORY
¶2 Ann and Matthew are first cousins who married in California in 2018, when they were 53 years old. They agree that their marriage was valid in California when performed, and remains valid there now. They later moved to Arizona; Matthew then apparently moved to Texas, while Ann remained in Arizona.
¶3 In February 2022, Ann petitioned for dissolution of the marriage in Maricopa County Superior Court. Matthew’s response also asked to dissolve the marriage. The court later entered temporary orders, requiring Matthew to pay Ann $1,500 in monthly spousal maintenance.
¶4 Matthew then moved to convert the dissolution petition into an annulment petition. Conceding “California does not bar marriages between first cousins, and the marriage was valid in” California, Matthew argued the marriage is not valid in Arizona. He relied on an Arizona statute stating that first cousins younger than 65 years old may marry “upon approval of any superior court judge in [Arizona] if proof has been presented to the judge that one of the cousins is unable to reproduce.” Ariz. Rev. Stat. (A.R.S.) § 25-101(A) & (B) (2023).1
¶5 Ann argued the Full Faith and Credit Clause, contained in Article IV § 1 of the United States Constitution, required Arizona to recognize the California marriage and that Arizona does not have a strong public policy against doing so. She also argued that, given their ages, and
1Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
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that Matthew had a vasectomy before the marriage, they “had both been infertile for many years” before marrying. Matthew’s reply argued Ann was not infertile when they married, and his pre-marriage vasectomy could be reversed, meaning the marriage did not comply with Arizona’s Section 25-101(B).
¶6 After oral argument, the superior court granted Matthew’s motion and converted the dissolution petition into an annulment petition. The court noted the parties are first cousins, “neither party is over the age of 65, and the parties did not amend their marriage after moving to Arizona to avail themselves of” A.R.S. §25-101(B). The court also vacated the spousal maintenance order. This special action followed.
DISCUSSION
¶7 Accepting special action jurisdiction is discretionary. Lincoln v. Holt, 215 Ariz. 21, 23 ¶ 3 (App. 2007). Relevant factors in deciding whether to accept special action jurisdiction include whether petitioner has an equally plain, speedy and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). Legal questions about interpreting a statute are well suited for special action review, as are issues of first impression and of statewide importance. See State v. Bernini, 230 Ariz. 223, 225 ¶ 5 (App. 2012) (citation omitted). Although Ann could challenge the ruling on appeal, this case raises significant legal questions not resolved by existing law, including a novel interpretation of a statute enacted more than 30 years ago. Thus, in the exercise of its discretion, this court accepts special action jurisdiction.
¶8 The superior court implicitly found that the marriage was void by granting Matthew’s motion to convert the dissolution petition into an annulment petition. See A.R.S. § 25–301; see also Means v. Indus. Comm’n, 110 Ariz. 72, 75 (1973) (action for annulment, unlike divorce, is “based upon a marriage that may be void or voidable”); 55 C.J.S. MARRIAGE § 83 (2023) (“The theory of an action to annul is that no valid marriage ever came into existence.”). The court, however, cited no basis for that finding.
¶9 “Unless 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 (App. 2002); accord In re Mortenson’s Estate, 83 Ariz. 87, 90 (1957) (addressing first cousin marriage before amendments to A.R.S. § 25-101 allowing such marriages). “The ‘strong public policy exceptions’ we look to in determining which state’s law to apply are those pronounced by the Arizona legislature.” Cook v. Cook, 209 Ariz. 487, 492 ¶ 17 (App. 2005) (citations omitted).
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¶10 The parties do not dispute that their marriage is valid under California law. Instead, Matthew’s position, which the superior court adopted, is that their California marriage could be recognized in Arizona only if they sought approval from an Arizona court when they moved here. But Arizona law does not require an Arizona court to approve marriages valid under the laws of another state when couples move here. Nor does the record show any “strong public policy” in Arizona precluding the marriage.
¶11 “Marriages valid by the laws of the place where contracted are valid in [Arizona], except marriages that are void and prohibited by section 25-101.” A.R.S. § 25-112(A). Since 1990, the Arizona Legislature has authorized marriages between first cousins in two circumstances. See A.R.S. § 25-101(B). The first would not apply because Ann and Matthew are not 65 years old. Id. The second would require Ann and Matthew to present proof “that one of [them] is unable to reproduce.” Id. Matthew had a vasectomy before the marriage, meaning he “is unable to reproduce.” Although arguing his vasectomy could be reversed, it has not been. There is no record evidence that Matthew can reproduce and, contrary to Matthew’s response, facts “not in the record” cannot support the ruling.
¶12 Matthew’s reliance on Cook, which declined to recognize a Virginia marriage, is unavailing for similar reasons. Cook involved first cousins who legally married in Virginia and then moved to Arizona, but they were not infertile as required by A.R.S. § 25-101(B). 209 Ariz. at 488 ¶ 3 (noting the couple had a child born during the marriage). Given that Arizona law would authorize the marriage between Ann and Matthew, subject to “approval of any superior court judge in” Arizona, unlike in Cook, nothing here shows that “strong public policy exceptions” would prohibit Arizona from recognizing their marriage. See Donlann, 203 Ariz. at 383 ¶ 12.
¶13 In sum, California law governs whether the marriage is valid, and the parties do not dispute that the marriage is valid under California law. Because they were married in California, Ann and Matthew did not have to comply with the requirements applicable if they had married in Arizona under A.R.S. § 25-101(B). The very existence of the Arizona statute, however, shows that the California marriage is not contrary to “strong public policy exceptions” under Arizona law that would preclude Arizona from recognizing their California marriage. Donlann, 203 at 383 ¶ 12. Moreover, given that A.R.S. § 25-101 does not require a couple validly married in another jurisdiction to have an Arizona court approve or amend
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the marriage when moving to Arizona, the superior court erred in concluding they had to seek such approval.2
CONCLUSION
¶14 Accepting special action jurisdiction, the court grants relief by vacating the superior court’s September 19, 2022 order. Having considered the parties’ financial resources and the reasonableness of their positions, Ann is awarded reasonable attorneys’ fees under A.R.S. § 25-324 and her taxable costs in this special action proceeding. Having granted Ann relief, the court rejects Matthew’s argument that “Ann’s position is unreasonable, as it is contrary to the plain language in the statute,” and denies his request for attorneys’ fees and costs.
AMY M. WOOD • Clerk of the Court FILED: AA
2Given this conclusion, the court need not (and expressly does not) address the parties’ Full Faith and Credit Clause arguments.
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