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Cook v.

Cook
1/13/2005

AFFIRMED

In 1996, the Arizona legislature amended this state's marriage statutes to provide that certain marriages, even though "valid by the laws of the place where contracted," were nonetheless "void and prohibited" in Arizona. S.B. 1038, 42d Leg., 2d Reg. Sess. (Ariz. 1996); Ariz. Rev. Stat. ("A.R.S.") 25-112(A) ("1996 amendments"). We resolve statutory, choice-of-law, and constitutional issues that arise out of the 1996 amendments.

I.

Alan R. Cook ("appellant") appeals from a decree of dissolution. He contests the trial court's jurisdiction, alleging that there was no valid marriage.

Appellant and Peggy Cook ("appellee") were married on April 7, 1984 in Virginia. They are first cousins. Marriage between first cousins was then (and is now) valid in Virginia. See Va. Code Ann. 20-38.1 (1978) and 20-45.1 (1975) (statutes listing void and prohibited marriages do not include marriage between first cousins); Va. Code Ann. 20-38.1 and 20-45.1 (West, WESTLAW through 2004 Spec. Sess. II) (same). The parties have one minor child, born July 11, 1986.

In 1989 the parties moved to Arizona. Arizona's statutory scheme (then and now) provides that a marriage between first cousins in Arizona is "void." A.R.S. 25-101. However, when the Cooks moved to Arizona, our law also provided that " arriages valid by the laws of the place where contracted are valid in this state." Arizona Code of 1939, 63-108 (currently codified as A.R.S. 25-112(A)) (emphasis added). Effective July 20, 1996, the legislature amended 25-112(A) to add the phrase, "except marriages that are void and prohibited by 25-101." 1996 amendments. The text of A.R.S. 25-112, with the 1996 amendments in bold, is as follows:

A. Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by 25-101.

B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by 25-101.

C. Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage.

A.R.S. 25-112. Thus, under the plain language of 25-112(A), the Cook's marriage was "valid" in Arizona in 1989 (when they moved here) but subsequently declared "void" by the 1996 amendments.

On January 3, 1997, appellant filed a petition for marital dissolution in the superior court. Though initially alleging there was a marriage, appellant subsequently filed a motion to amend/dismiss dissolution proceedings alleging that the parties' marriage was void and prohibited under A.R.S. 25-101 and -112 (A). The trial court denied the motion. It held, in part, that Arizona law prior to the 1996 amendments did not preclude recognition of a marriage valid in other states that was void in Arizona pursuant to 25-101. It then reasoned that because the law prior to the 1996 amendments permitted recognition of the first cousin marriage in this circumstance, the 1996 amendments could not be retroactively applied to void a marriage that was valid at the time the parties moved to Arizona.

After denial of the motion, trial ensued. The trial court entered various orders as to property, spousal maintenance, and other issues. Appellant timely appealed. The only issue we take up in this opinion is that of the validity of the marriage.

II.

The first question we must decide is whether the validity of the marriage should be determined under Arizona or Virginia law.

If determined under Virginia law, the marriage is valid; if determined under Arizona law, we are presented with statutory and constitutional issues as to whether the marriage is valid. It is unnecessary to address those issues if Virginia law applies. When the material facts, as here, are uncontested this question is a matter of law which we determine de novo. Swanson v. Image Bank, Inc., 206 Ariz. 264, 266, 6, 77 P.3d 439, 441 (2003) ("Choice-oflaw issues are questions of law, which we decide de novo.").

With a significant exception applicable here, Arizona follows the general rule that it is the law of the place where the marriage is celebrated, not the law of the place where the divorce takes place, that determines the validity of the marriage. Horton v. Horton, 22 Ariz. 490, 494, 198 P. 1105, 1107 (1921) (recognizing the "common-law rule" that when " onsidered merely as a contract, [a marriage] is valid everywhere if entered into according to the lex loci.") . As our supreme court has stated:

It is the general rule of law that a marriage valid under the laws of the country where contracted will be recognized as valid everywhere. The question of the validity of the marriage, therefore, depends upon the place where it is contracted, and not the place where an action for divorce is brought.

Gradias v. Gradias, 51 Ariz. 35, 36-37, 74 P.2d 53, 53 (1937) (citation omitted). The reasons for this rule have been described as the "predictability and the interstate order arising from society's interest in marriage." Vandever v. Indus. Comm'n, 148 Ariz. 373, 376, 714 P.2d 866, 869 (App. 1985) (citation omitted).

Just as enduring as the general rule, however, has been Arizona's exception to that rule; namely, that the power to define a valid marriage is vested in this state's legislature and not in the legislature (or judiciary) of another state nor in the judiciary of this state. Horton, 22 Ariz. at 495-96, 198 P. at 1107; Vandever, 148 Ariz. at 376-77, 714 P.2d at 869-70. Our supreme court described that power as follows:

The Legislature undoubtedly had the power to enact what marriages shall be void in this state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who, being domiciled in this state, left the state for the purpose of avoiding its statutes and married.

Horton, 22 Ariz. at 495, 198 P. at 1107 (emphasis added). Thus, we have long recognized that the legislature of this state, notwithstanding the general rule, may declare what marriages are valid (or void) in Arizona even if the marriage pertains to persons "who were in good faith domiciled in the state where the ceremony was performed" and the marriage is valid in that state.

Of course, as with all exercises of legislative power, the legislature's enactments on this subject are subject to the limitations of the United States and the Arizona Constitutions. U.S. Const. art. VI, cl. 2 (Supremacy Clause); Ariz. Const. art. 2, 3 ("The Constitution of the United States is the supreme law of the land."); Marbury v. Madison, 5 U.S. 137 (1803); Cohen v. State, 121 Ariz. 6, 588 P.2d 299 (1978) (declaring legislation invalid based on constitutional grounds); see also Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451 (App. 2003) (concluding that Arizona's legislative enactment limiting marriage to one man and one woman was constitutional). Thus, absent constitutional considerations, our cases hold that the parameters of marriage in Arizona - w to fill out a simple form to connect to Personal Injury Lawyers in your area.

Cook v. Cook
1/13/2005 hether originally contracted in this state or elsewhere - are a matter for the people of Arizona acting through the legislature or by direct mandate. Those parameters are not a matter for the people, legislature, or courts of another state. In considering the choice-of-law issues surrounding outof-state marriages, it is important to consider Arizona's treatment of the pertinent principles set forth in the Restatement (Second) of Conflict of Laws (1971) ("Restatement") pertaining to marriage. While Arizona invokes some principles from the Restatement, we do not follow it in certain significant regards. Specifically, Restatement 283(1) and (2) both invoke the element of which state had "the most significant relationship" to the parties at the time of the marriage in determining which state's law to apply. Section 283(1) provides that " he validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in 6." Section 6(1) then provides as follows: "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." (Emphasis added.) This principle from 6(1) giving preeminence to the legislative pronouncement of "its own state" is consistent with Horton, and subsequent authorities. See, e.g., Vandever, 148 Ariz. at 376-77, 714 P.2d at 869-70. Arizona law follows 6(1). Section 283(2) of the Restatement, however, does not include this deference to the legislature of the forum state. It states the general rule that " marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid." Unless the legislature has declared otherwise, Arizona follows this formulation of the general rule. Supra 8-9. Arizona does not, however, follow the exception stated in 283(2).

d. Vandever's analysis was based on Horton's pronouncement regarding the power of the legislature to define what was, and what was not, a valid marriage. Id. at 376-77, 714 P.2d at 869-70. Vandever determined the public policy considerations as evidenced by Arizona's statutory enactments. Id. (referencing those marriages specified as void and prohibited in A.R.S. 25-101). Vandever declined to tie the public policy reasons justifying refusal to accept a marriage to the state with the most significant relationship. It looked to, and followed, Arizona's statutory enactments in determining the public policy considerations that it should apply. See Taylor v. Graham County Chamber of Commerce, 201 Ariz. 184, 191, 27, 33 P.3d 518, 526 (App. 2001) (" hen, as here, the legislature has clearly spoken on a matter within its domain, its word constitutes public policy on that subject and controls, assuming no constitutional impediments exist.") (citing Ray v. Tucson Med. Ctr., 72 Ariz. 22, 35, 230 P.2d 220, 229 (1951) ("The declaration of 'public policy' is primarily a legislative function.")); Harrison v. Laveen, 67 Ariz. 337, 344, 196 P.2d 456, 460 (1948) (" he matter of determining what is 'good public policy' is for the executive and legislative departments and . . . the courts must base their decisions on the law as it appears in the constitution and statutes."). Thus, the Vandever court appropriately rejected the request to engraft a "most significant relationship" test onto A.R.S. 25-101 and -112 in determining what marriages would be valid or void in Arizona. A second pertinent case to this point is Donlann v. MacGurn, 203 Ariz. 380, 55 P.3d 74 (App. 2002). In that case a marriage was performed in Jalisco, Mexico. Both parties were residents of Arizona. Applying the general rule, the validity of the marriage would then turn on Mexican law. The marriage did not comply with Mexican law because "the person who signed the marriage certificate did not perform the ceremony." Id. at 383, 14, 55 P.3d at 77. Because the parties in good faith believed that a valid ceremony had been performed, and in such circumstances Arizona law would recognize the ceremony, the court recognized the marriage. Id. at 382-84, 387, 6, 15-20, 38, 55 P.3d at 76-78, 81. Donlann, however, also pointed to the justified expectations of the parties and the fact that the most significant relationship of the parties was to the state of Arizona. Id. at 383-84, 15-20, 55 P.3d at 77-78. It found that a marriage that was "technically flawed" in the jurisdiction where performed would nonetheless be recognized in Arizona as it was consistent with Arizona law. Id. at 384, 15, 55 P.3d at 78. Thus, Donlann did not employ the "most significant relationship" consideration to give effect to a marriage that would otherwise not be recognized in Arizona; it considered the relationship of the parties to the forum to explain why it was giving effect to a marriage that was valid in Arizona but not in the place where performed. Id.; see Restatement 283(2) cmt. i. Additionally, the marriage statute at issue here does not go to a "technical flaw" in a marriage proceeding (as in Donlann), but rather to a substantive decision based on a statutory determination of who may and who may not enter into a marriage. The general rule explicitly stated in Donlann is the same rule from Horton, Vandever, and here: "Unless strong public policy exceptions require otherwise, the validity of the marriage is generally determined by the law of the place of marriage." 203 Ariz. at 383, 12, 55 P.3d at 77 (emphasis added). The "strong public policy exceptions" we look to in determining which state's law to apply are those pronounced by the Arizo The exception that Restatement 283(2) provides to the general rule is based on the policy of the state with the "most significant relationship." Section 283(2) applies the general rule "unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage." Restatement (Second) of Conflict of Laws 283(2) (1971) (emphasis added). As Horton expressly holds, the Arizona legislature is free to ignore (subject to constitutional constraints) the policy considerations of another state in determining whether marriages are valid or void in Arizona regardless of whether that other state had the more significant relationship. "The Legislature undoubtedly had the power to enact what marriages shall be void in this state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed" or not. Horton, 22 Ariz. at 495, 198 P. at 1107. Two cases illustrate the point. In Vandever, the parties were arguably domiciled in Arizona, yet one party contended that a common-law marriage had been entered into pursuant to the law of Colorado. This court expressly rejected a request to "incorporate into A.R.S. 25-112 a choice-of-law analysis that would require

this court to discern which state has the most significant contacts with the [marriage] relationship." 148 Ariz. at 376, 714 P.2d at 869. Though citing those portions of 283(2) that allowed for exceptions to the general rule based on strong policy considerations, the court rejected the request that it look to the state with the "most significant relationship" as the Restatement provided. I na legislature. Horton, 22 Ariz. at 495, 198 P. at 1107; Vandever, 148 Ariz. at 376, 714 P.2d at 869; see also supra 15 for additional authorities. They are stated (at least in part) in A.R.S. 25-101 and -112, which declare certain marriages void. Contrary to Restatement 283(2), the policy considerations are not those of some other state. This is the case even if that other state, as here, has a more significant relationship to the parties at the time the marriage was contracted.

That our cases instruct us to look to Arizona's statutes on the validity of marriage - even if another state has a more significant relationship - is particularly apt given the importance of marriage and the present divergent views on that subject. Marriage is a foundation stone in the bedrock of our state and communities. As the United States Supreme Court long ago said, "marriage . . . is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Maynard v. Hill, 125 U.S. 190, 211 (1888); see also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (describing marriage as "fundamental to the very existence and survival of the race"); Moran v. Moran, 188 Ariz. 139, 144, 933 P.2d 1207, 1212 (App. 1996) (" he state is also vitally concerned with the establishment of marriages.") (emphasis added); Woodworth v. Woodworth, 202 Ariz. 179, 183, 22, 42 P.3d 610, 614 (App. 2002) ("The health of the family is critical to the health and vibrancy of our communities and our state.") (emphasis added). However, notwithstanding the foundational aspects of marriage, there is no certainty that states, communities, and citizens do (or will) agree on its parameters or "its purity," as Maynard described it. There are strongly divergent views on what the scope of marriage should be among the fifty states. Some argue that traditional "marriage-based families . . . are incomparably superior to any other model" of family structure. Lynn D. Wardle, Is Marriage Obsolete?, 10 MICH. J. GENDER & L. 189, 214 (2003).

Others urge that "we destroy the marital model altogether." Martha Albertson Fineman, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 5 (1995). Citizens of Arizona have no control over what policies other states have adopted, or may in the future adopt, that pertain to marriage. Arizona citizens, however, do control (through the process of elections) the policies their own legislature will adopt on this foundational issue. Unless constitutionally required, Arizona should not be held hostage to the policies of another state on a subject so vital as who may or may not marry.

Thus, under a conflict-of-law analysis, Arizona authorities require us to recognize the preeminence of the Arizona legislature's express statutory enactments as to whether a particular out-of-state marriage is valid or void in Arizona. We do not apply the law from the state of Virginia, even though Virginia had the most significant relationship to the parties at the time of the marriage.

III.

A.

Having determined that we apply Arizona law, as opposed to Virginia law, we now turn to the Arizona statute.

When considering a statute we are required to give it, if possible, a constitutional interpretation. Hayes v.

Continental Ins. Co., 178 Ariz. 264, 272, 872 P.2d 668, 676 (1994) (" f possible this court construes statutes to avoid rendering them unconstitutional.") (citations omitted). In a circumstance "where alternate constructions are available, we should choose that which avoids constitutional difficulty." Slayton v. Shumway, 166 Ariz. 87, 92, 800 P.2d 590, 595 (1990) (citations omitted); see also Lake Havasu City v. Mohave County, 138 Ariz. 552, 558, 675 P.2d 1371, 1377 (App. 1983) (" f the statute is susceptible to two interpretations, one of which renders it unconstitutional, we must adopt the interpretation favoring its validity.") (citation omitted).

Appellee argues that her marriage was recognized in Arizona prior to the 1996 amendments and became, in her case, a substantively vested right. She further argues that if we construe the 1996 amendments to take away this vested right, A.R.S. 25-112(A) runs afoul of Arizona's prohibition against retroactive legislation. For the following reasons, we agree. Because an alternative construction is available to us, we adopt that construction.

B.

In 1989, when the parties moved to Arizona, they had a marriage that was validly recognized in Virginia. Section 25-112(A) expressly provided that marriages valid in another state were valid here. The only statutory exceptions occurred when residents of this state left Arizona to contract a marriage prohibited in Arizona with the intent of returning. A.R.S. 25-112(B), (C); see In re Mortenson's Estate, 83 Ariz. 87, 90, 316 P.2d 1106, 1107 (1957) (involving residents of this state and holding that " marriage declared void by our statute cannot be purified or made valid by merely stepping across the state line for purposes of solemnization"). The 1996 amendments now declare appellee's marriage "void." A.R.S. 25-112(A). Our cases hold that a "void" marriage "shall have no force and effect for any purpose within the state of Arizona." In re Mortenson's Estate, 83 Ariz. at 90, 316 P.2d at 1107. Thus, if we apply the plain language of the 1996 amendments to the prior statutory scheme, this legislation has a retroactive effect on appellee's marriage by declaring that it has "no force and effect for any purpose." Id.

Not all retroactive legislation, however, is prohibited. "A statute that is merely procedural may be applied retroactively." San Carlos Apache Tribe v. Superior Court (Bolton), 193 Ariz. 195, 205, 15, 972 P.2d 179, 189 (1999) (citation omitted). However, our supreme court has made it plain that "legislation may not disturb vested substantive rights by retroactively changing the law that applies to completed events." Id. (citation omitted) (emphasis added); Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 140, 717 P.2d 434, 444 (1986) (" egislation may not retroactively disturb vested rights."); State v. Murray, 194 Ariz. 373, 375, 6, 982 P.2d 1287, 1289 (1999) (" he legislature . . . 'may not disturb vested substantive rights.'") (quoting San Carlos, 193 Ariz. at 205, 972 P.2d at 189).

Appellant argues that the 1996 amendments are procedural only, not substantive. We reject this argument. If given the construction appellant urges, a marriage that was previously recognized on behalf of Arizona residents of seven years' duration would be taken away from them. The statutory grant of marriage is more than a procedural right. It goes to the bedrock of our society. Supra 18. Marriage is a substantive right. As was the case in Hall, " he critical inquiry in retroactivity analysis [here] is not whether a statute affects a substantive right but whether a statute affects a vested right." 149 Ariz. at 139, 717 P.2d at 443 (second emphasis in original). The Arizona Supreme Court continued:

Thus, the implicit meaning of the statement "substantive rights may not be retroactively impaired" is "substantive rights may not be impaired once vested."

Id. at 139-40, 717 P.2d at 443-44. The inquiry for us, then, is whether appellee had a vested right in her marriage.

Determining whether that right (the recognition of one's marriage) has vested does not fit neatly into our jurisprudence concerning vested rights. The language of the law in this area deals primarily with property rights. See Aranda v. Indus. Comm'n, 198 Ariz. 467, 11 P.3d 1006 (2000) (workers' compensation benefits); San Carlos, 193 Ariz. 195, 972 P.2d 179 (water rights); Murray, 194 Ariz. 373, 982 P.2d 1287 (parole eligibility restrictions); O'Brien v. Escher, 204 Ariz. 459, 65 P.3d 107 (App. 2003) (amendment to statute proscribing jail term after act committed); Mejia v. Indus. Comm'n, 202 Ariz. 31, 39 P.3d 1135 (App. 2002) (temporary total disability compensation benefits); In re Marriage of Ramirez, 173 Ariz. 135, 840 P.2d 311 (App. 1992) (right to child support payments vests as payments become due); St. Joseph's Hosp. and Med. Ctr. v. Superior Court (Schneider), 164 Ariz. 454, 793 P.2d 1121 (App. 1990) (statutorily granted right to review panel vested upon filing of action); Godbey v. Roosevelt Sch. Dist. No. 66, 131 Ariz. 13, 638 P.2d 235 (App. 1981) (accumulated paid sick leave); Allen v. Fisher, 118 Ariz. 95, 574 P.2d 1314 (App. 1977) (medical malpractice claim); Rio Rico Props., Inc. v. Santa Cruz County, 172 Ariz. 80, 834 P.2d 166 (Tax 1992) (tax refunds); see also Thurston v. Judges' Ret. Plan, 179 Ariz. 49, 876 P.2d 545 (1994) (wife's right to survivor benefits vests when husband dies). Though the right to have one's marriage recognized indeed has ramifications for property rights, it is undeniably of broader scope. Supra 18.

Notwithstanding the application of the "vested right" concept primarily to cases involving property, the standard for determining such rights has been defined to allow recognition of the right here. As early as 1913 our supreme court defined "vested" rights as follows:

"Rights are vested, in contradistinction to being expectant or contingent. They are vested, when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. . . ." A "vested right" is defined to be an immediate fixed right to present or future enjoyment, or where the interest does not depend on a period, or an event, that is uncertain.

Steinfeld v. Nielsen, 15 Ariz. 424, 465, 139 P. 879, 896 (1913) (quoting Pearsall v. Great N. Ry. Co., 161 U.S. 646, 673 (1896)) (citations omitted) (emphasis added). Certainly, the status of being married is "an immediate fixed right to present or future enjoyment." Steinfeld, 15 Ariz. at 465, 139 P. at 896. Additionally, "the interest [the recognition of marriage] does not depend on a period, or an event, that is uncertain." Id. Under this standard, and by virtue of residing in Arizona for seven years when Arizona's legislature expressly authorized the marriage into which she had entered, appellee's right to have her marriage recognized "vested."

Though not controlling, our conclusion that appellee has a vested right in the validity of her marriage is also supported by Arizona law pertaining to community property. A spouse's interest in the marital community includes a "vested property interest."

Hatch v. Hatch, 113 Ariz. 130, 134, 547 P.2d 1044, 1048 (1976). In Hatch, our supreme court held that the trial "court's unequal property distribution was . . . an unconstitutional deprivation of the [wife's] vested property interest in the community." Id. The Hatch court cited with approval authority from other jurisdictions holding "the interest of the wife is a vested one and not a mere expectancy. . . . The interest is of such a nature that, if it were sought to be divested by a statute seeking to abolish the community, the same would probably be unconstitutional as destroying a vested right." Id. at 131-32, 547 P.2d at 1045-46 (citations omitted) (emphasis added); see also Grimditch v. Grimditch, 71 Ariz. 198, 204, 225 P.2d 489, 492

(1951) (holding spouse had "vested right in the community property").

C.

We emphasize that we, as a court, do not act to create a right. Prior to 1996, the Arizona legislature specifically stated that " arriages valid by the laws of the place where contracted are valid in this state." Arizona Code of 1939, 63-109 (currently codified as A.R.S. 25-112(A)). When the parties moved from Virginia to Arizona in 1989, their marriage was valid under the laws of the state of Arizona, not simply under Virginia law. Sections 25-112(B) and (C) only precluded marriages validly performed out of state when those marriages were undertaken "by parties intending at the time to reside in this state" or "parties residing in this state" who sought to "evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage." A.R.S. 25-112(B), (C).

Horton expressly recognized the legislature's ability to declare marriages "void" that were "valid in the state where celebrated whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who, being domiciled in this state, left the state for the purpose of avoiding its statutes and married." 22 Ariz. at 495, 198 P. at 1107. The legislature chose to declare the second category that Horton identified (when Arizona residents sought to evade the law) "void" prior to 1996. This is represented by A.R.S. 25-112(B) and (C). The legislature did not declare the first category (marriages entered into that were contrary to Arizona's law but not contracted by Arizona residents with the intent to evade Arizona's law) "void" until the 1996 amendments. Appellee clearly falls into the first category, for which the legislature chose not to act until 1996.

Thus, the statutory scheme in place in 1989, when the parties moved here, expressly recognized appellee's marriage. The exceptions identified in 25-112(B) and (C) are inapplicable as neither appellee nor appellant sought to evade Arizona law when they married in Virginia. They were validly married in Virginia before coming to Arizona. The fact that Arizona would have prohibited their marriage, had they resided here, is of no consequence as the legislature (up until the 1996 amendments) expressly chose to recognize their valid out-of-state marriage.

Accordingly, in the context of a claim of a "void" marriage under 25-112(A), we hold that one's right to have an out-of-state marriage deemed valid in the state of Arizona vests upon the following conditions: (1) the marriage was valid in the state where contracted; (2) the parties to the marriage were residents of Arizona prior to the enactment of the amendment to 25-112(A) on July 20, 1996; and (3) that during this period of residency in Arizona their marriage was validly recognized under the statutory scheme then in place in Arizona.

D.

By construing the statute to apply prospectively only, we harmonize the 1996 amendments with Arizona's constitutional prohibitions against retroactive legislation. We do not impair the legislature's expressly recognized ability to declare as "void" marriages recognized as valid in other jurisdictions, Horton, 22 Ariz. at 495, 198 P. at 1107, so long as the party asserting the right to the valid out-of-state marriage did not have a vested right as defined herein. Appellant asserts that we should construe the term "void" to apply to all marriages existing in the state of Arizona at the time of the 1996 amendments. We agree this is a plausible construction, as a "void" marriage has been construed to mean that the marriage "shall have no force and effect for any purpose within the State of Arizona." In re Mortenson's Estate, 83 Ariz. at 90, 316

P.2d at 1107. However, as we have discussed above, giving such a reading creates a significant constitutional concern.

Further, A.R.S. 1-244 (2000) expressly provides that " o statute is retroactive unless expressly declared therein." We can give effect to the legislature's use of the word "void" in the 1996 amendments by applying that term to exclude vested rights in existing marriages as we have described them. Had the legislature chosen to nullify existing marriages (thus having the retroactive effect described) it could have expressly stated so. It did not.

Accordingly, we can give legitimate meaning to the term "void" in the 1996 amendments by applying it to marriages from other jurisdictions in which the parties had no vested right to have their marriage recognized in Arizona. As to these marriages, the use of the term "void" applies and means that such a marriage "shall have no force and effect for any purpose within the State of Arizona." In re Mortenson's Estate, 83 Ariz. at 90, 316 P.2d at 1107. By construing the term "void" to apply to marriages where rights in Arizona have not "vested," we adopt an "alternate construction " that "avoids constitutional difficulty" as required by our law. Slayton, 166 Ariz. at 92, 800 P.2d at 595.

IV.

For the reasons set forth above, and those in the separately filed memorandum decision, we affirm the judgment of the trial court.

DANIEL A. BARKER, Judge CONCURRING

MAURICE PORTLEY, Presiding Judge

JON W. THOMPSON, Judge

Langan v St. Vincent's Hosp. of N.Y.


Langan v St. Vincent's Hosp. of N.Y. 2009 NY Slip Op 05846 [64 AD3d 632] July 14, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. As corrected through Wednesday, September 2, 2009 John Langan, Appellant, v St. Vincent's Hospital of New York et al., Respondents. [*1] David L. Taback, P.C., New York, N.Y. (Anne D. Taback and Adam L. Aronson of counsel), for appellant. Costello, Shea & Gaffney, LLP, New York, N.Y. (Frederick N. Gaffney, Paul E. Blutman, and Margaret S. O'Connell of counsel), for respondent St. Vincent's Hospital of New York. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondent Steven Touliopoulos. In a consolidated action to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered March 13, 2008, which granted the motion of the defendant Steven Touliopoulos and the cross motion of the defendant St. Vincent's Hospital of New York for summary judgment dismissing the complaint insofar as asserted against each of them. Ordered that the order is affirmed, with one bill of costs. The plaintiff's decedent died after undergoing two surgeries following an accident in which he was struck by a motor vehicle. An autopsy indicated that the cause of death was the injuries the plaintiff's decedent sustained as a result of the accident, and that hypertensive cardiovascular disease was a contributory cause. The plaintiff commenced this action against the surgeon and the hospital in which the plaintiff's decedent was treated alleging that, inter alia, the defendants failed to diagnose and treat a fatty embolism. " 'To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury' " (Barila v Comprehensive Pain Care of Long Is., 44 AD3d 806, 807 [2007], quoting Berger v Becker, 272 AD2d 565, 565

[2000]). Therefore, on a motion for summary judgment, a defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Sandmann v Shapiro, 53 AD3d 537 [2008]). In opposition, a plaintiff then must submit material or evidentiary facts to rebut the defendant's prima facie showing that he or she was not negligent in treating the plaintiff (id.). Here, the defendants established their entitlement to judgment as a matter of law by submitting, inter alia, expert [*2]testimony that they did not depart from accepted standards of care (see Barila v Comprehensive Pain Care of Long Is., 44 AD3d at 807). In opposition, the plaintiff alleged, for the first time, that the plaintiff's decedent died as a result of the defendants' failure to diagnose and treat cardiac arrhythmia. The Supreme Court properly refused to consider the allegation. Although a plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's submission (see Mainline Elec. Corp. v Pav-Lak Indus., Inc., 40 AD3d 939 [2007]), in this case, the plaintiff's inexcusable delay in presenting the alternative cause of action four years after the action was commenced warranted the Supreme Court's rejection of this new theory of liability (id.; Pinn v Baker's Variety, 32 AD3d 463, 464 [2006]; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]). Accordingly, the Supreme Court properly granted the defendant's respective motion and cross motion for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Belen and Hall, JJ., concur.

Langan v. St. Vincent's Hospital of New York John G. Culhane Widener University School of Law

Langan v. St. Vincent's Hospital of New York Supreme Court of the State of New York County of Nassau 11618/2002 Short Form Order on Cross-motions for dismissal and partial summary judgment April 10, 2003 Dunne, J. In this action for wrongful death and medical malpractice, the limited issue presented on the motion and cross-motion is whether, under principles of full faith and credit or comity, plaintiff John Langan's legal status as a spouse of Neal Spicehandler in a civil union solemnized in the State of Vermont, which union is sanctioned and affords all benefits and obligations of marriage under the laws of Vermont, entitles him to recognition as a "spouse" under New York's wrongful death statute. Plaintiff does not raise any derivative claim for loss of consortium. As background for analysis, the circumstances of Neal Spicehandler's death, as well as the circumstances of his life are reviewed. Neal Conrad Spicehandler and John Langan met on November 1, 1986 when Spicehandler was 26 and Langan was 25. They moved in together eight months later and lived together until Spicehandler's death at age 41. They provided each other with health care proxies, each was the sole beneficiary on the other's life insurance policy, they were joint owners on homeowner's insurance, and were the sole legatees under each other wills. In the year 2000 Vermont enacted a statute which legally sanctioned homosexual unions in the same manner as a marriage. The civil union required the same solemnization as a marriage and created spouses for all purposes under Vermont state law. Within four months of its passage, Spicehandler and Langan, in a formal ceremony with approximately forty family members and friends attending, were joined in a union solemnized by a

Justice of the Peace. Their vows included taking each other "to be my spouse." They exchanged wedding bands; they planned to adopt children, and finally purchased a house in Massapequa, Long Island. Within hours of the closing Neal Spicehandler was struck by the automobile driven by Ronald Popodich who ran down and injured 18 people in Manhattan. He was taken to St. Vincent's Hospital with a broken leg, and underwent two surgeries. He died while in the hospital from an embolus of "unknown origin." Neal Conrad Spicehandler was known as both Neal and Conrad. He is referred to as both by different family members and friends as they describe the nature of his relationship with plaintiff. Their words are telling. First, the parents. Ruth Spicehandler, Neal's mother knew John Langan as her son's partner for 16 years, and even her grandchildren know John as an uncle. She explains, "John has been Neal's partner in all aspects of life." They participated together "in all family functions" including "birthdays, anniversaries, religious events, holidays, dinners, and vacations." Plaintiff's parents, Daniel and Barbara Langan, worried that their son would face "prejudice, hostility and other difficulties" and initially did not accept his relationship with Spicehandler. But they changed, stating "John has always loved life, but we believe he loved Conrad even more. It is as if a part of him died when Conrad died." New York does not compensate a spouse for spiritual or emotional loss, but it may compensate Langan for his pecuniary loss if it is determined that he is a spouse for purposes of the wrongful death statute. There is no infirmity of proof on the factual issues. The evidence offered establishes that John Langan and Neal Conrad Spicehandler lived together as spouses from shortly after they met in 1985 until the year 2000, when they took the first opportunity to secure legal recognition of their union in the State of Vermont, and were joined legally as lawful spouses. Under New York law as it now stands, if Langan were a registered domestic partner, he would be able to succeed to a rent controlled apartment as a "family member," would be able to recover had his partner been lost in the September 11 tragedy, would be eligible for the derivative employment benefits of a city or state employed partner, including death benefits, would be eligible to adopt his partner's biological child, and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. He would not, however, be able to recover as a spouse under the wrongful death statute .... With respect to marriages entered into in sister states, New York adheres to the general rule that "marriage contracts, valid where made, are valid

everywhere, unless contrary to natural laws or statutes" (Shea v. Shea, 294 NY 909....[This is true] for purposes of the wrongful death statute (Black v. Moody, 276 AD2d 303....It follows that, if plaintiff has a validly contracted marriage in the State of Vermont, and if the Vermont civil union does not offend public policy as would an incestuous or polygamous union, it will be recognized in the State of New York for purposes of the wrongful death statute. [T]he court will not determine whether plaintiff has a valid marriage in the State of New York for all purposes, but only whether he may be considered a spouse for purposes of the wrongful death statute, much as the Court of Appeals has held that a same sex domestic partner is a "family" member for the limited purposes of the New York City's rent control laws (see, Braschi v. Stahl Assoc., 74 NY2d 201). Although the court must examine the nature of the Vermont civil union, and whether it can be distinguished from the honored state of marriage, the purpose of doing so is thus limited. To resolve the statutory spouse issue, discussion must primarily focus upon what a Vermont civil union is, and is not, and compare it to a marriage, and determine whether New York's public policy precludes recognition under full faith and credit.... Addressing the issue of policy first, New York has not enacted a mini DOMA. This acronym refers to the federal Defense of Marriage Act (1 U.S.C. 7; 28 U.S.C. 1738C), which in response to Vermont's civil union statute, declares that a marriage is a union between a man and a woman, and that no State shall be "required to give effect" to a same-sex union. [T]hirty five states have passed mini DOMAs. New York is not among them. [The court then discussed several areas of law in which New York affords rights to same-sex couples.] Concluding that New York's public policy does not preclude recognition of a same-sex union entered into in a sister state, the next issue is Vermont's civil union statute. Passage of Vermont's historic civil union statute was compelled by a decision of the Vermont Supreme Court which, acknowledging that the question before it "arouses deeply-felt religious, moral, and political beliefs," and framing the question to focus "on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples," held that all Vermont citizens, both heterosexual and homosexual, are entitled to the benefits and protections of a state-sanctioned union under the Common Benefits Clause of the Vermont Constitution (Baker v. State, 170 Vt. 194, 197).

The Vermont statute, effective July 1, 2000, requires that plaintiff be entitled to "the benefits and protections" and "be subject to the rights and responsibilities" of "spouses" (15 VSA 1201[2]), and "gives same-sex couples access to more than 300 rights derived from Vermont state law." A civil union under Vermont law is distinguishable from marriage only in title, as it defines marriage as "the legally recognized union of one man and one woman" (15 VSA 1201[4]). Yet it goes so far as to include a presumption of legitimacy for either party's natural child born during the union, giving new meaning to the well established legal fiction intended to protect innocent children "ensuring their financial and emotional security, and ultimately preserving the stability of the family unit" (15 VSA 1204[f]; see, Godin v. Godin, 168 Vt. 514, 521, 522). The presumption of legitimacy, when extended to a same-sex couple, together with the obligations of support and requirement for a divorce, indicate that the civil union is indistinguishable from marriage, notwithstanding, that the Vermont legislature withheld the title of marriage from application to the union.... Thus, the ultimate issue may be framed as the question whether EPTL 4-1.1 excludes spouses who are in every material way sanctioned in a union for life because they may not be properly described as a husband or a wife, or more pointedly, because they are both men or both women. Taking heed of Justice Brandeis' admonition, that, "we must be ever on our guard, lest we erect our prejudices into legal principles" (New York Ice Co. v. Liebmann, 285 US 262, 311 [Brandeis, J. dissenting]), this court must look to the "legislative purpose as well as legislative language" of the EPTL's protection of a spouse to determine whether plaintiff is a person entitled to such protection (see Matter of Jacob, 86 NY2d 651, 658). Turning to legislative purpose, the wrongful death statute is intended to "promote the public welfare" (Raum v. Restaurant Assoc., 252 AD2d 369, 371, supra Rosenberger, J. dissenting), and its goals "are to compensate the victim's dependents, to punish and deter tortfeasors and to reduce welfare dependency by providing for the families of those who have lost their means of support" (Raum v. Restaurant Assoc., supra at p 374, Rosenberger, J. dissenting). Thus the wrongful death statute is intended to compensate the pecuniary losses first and foremost of the decedent's immediate family, that is, his or her spouse and children, those most likely to have expected support and to have suffered pecuniary injury [citation omitted]. The person most likely to have expected support and to have suffered pecuniary injury here is plaintiff, Spicehandler's immediate family and spouse under the Vermont statute, and the only legatee under his will.

Turning to the statutory language, the EPTL provides that only certain classes of people may recover for wrongful death. They are "distributees" (EPTL 54.1), defined as those who are "entitled to take or share in the property of a decedent under the statutes governing descent and distribution" (EPTL 1-2.5), and they are compensated not for injuries sustained by the decedent, but for their pecuniary injuries suffered as a result of his or her death (EPTL 5-4.3). Distributees are identified both for purposes of intestacy and wrongful death, and include a "spouse, issue, parents, grandparents or their issue" (EPTL 41.1[a]). The court acknowledges that at the time the wrongful death statutes were written, the use of the term spouse did not envision inclusion of a same-sex marital partner. But as the concepts of marriage evolve over time, leaving behind the common law doctrine that "a woman was the property of her husband" and her "legal existence" was "'incorporated and consolidated into that of the husband'" (see People v. Liberta, 64 NY2d 152, 164), so too public opinion regarding same-sex unions is evolving. At the time the statute was written, there were no sanctioned same-sex couples, much less domestic partnerships, civil unions, reciprocal beneficiaries, and, as in the Netherlands, full fledged same-sex marriage (see Nancy G. Maxwell, Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison, 18 Ariz. J. Int'l & Comp. L. 141, 200). Indeed homosexuality had not yet been removed from the professional medical and psychological definitions of disease (Martha M. Ertman, Oscar Wilde: Paradoxical Poster Child for Both Identity and Post-Identity, 25 Law & Soc. Inquiry 153, 166), and consenting adult homosexual intimacy was considered criminal (see, People v. Onofre, 51 NY2d 476). Nor had Ford, General Motors, Chrysler and Coca Cola, provided benefits to the same-sex partners of its employees (David M. Skover Lesbigay Identity as Commodity 90 Cal. L. Rev. 223, 237-238 [The total number of private employers now offering domestic partnership benefits approximates 3,500]). The words of the statute, referring to a spouse as a husband or wife, operate to clarify that the intended primary beneficiaries are the members of the legally sanctioned family unit which is still intact. There is a compelling reason to construe the EPTL to include a Vermont spouse under the fundamental tenet of construction that "a statute ought normally to be saved by construing it in accord with constitutional requirements" (People v. Dietze, 75 NY2d 47, 52). That "the very language of the statute must be fairly susceptible of such an interpretation" is not an obstacle here, and the court "'may reasonably find implicit' in the words used

by the Legislature" that all spouses were to be included (see People v. Dietze, 75 NY2d 47, 52). Spouse is a gender neutral word, it applies to a man or a woman, and is applied to plaintiff under the Vermont civil union. As the EPTL is construed to apply to a common law couple who have not been joined by a civil ceremony and may separate at will, it is impossible to justify, under equal protection principles, withholding the same recognition from a union which meets all the requirements of a marriage in New York but for the sexual orientation of its partners. The state "may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective" (Under 21 v. City of New York, 108 AD2d 25, modified on other grounds, 65 NY2d 344; Lofton v. Kearney, 157 F.Supp.2d 1372, 1381 [S.D.Fla.,2001]). For example, with respect to wrongful death statutes, the Supreme Court has held that a distinction between illegitimate and legitimate children for purposes of recovery is an irrational one (Glona v. American Guar. & Liab. Ins. Co., 391 US 73). This court is mindful that it must pay due respect to the legal wisdom of the rule that a court should be "certain of its ground before making a categorical finding that there is no permissible objective served by a state statute or that there is utterly no...discernible relation between the legislature's classification and a legitimate end" (In re Paris Air Crash, 622 F.2d 1315, 1319 [9th Cir. Cal.], cert denied 449 U.S. 976). But where a statute draws a distinction based upon marital status the distinction "must be based upon 'some ground of difference that rationally explains the different treatment'" (People v. Liberta, 64 NY2d 152, 163). Here there is no difference for state purposes between a married person and a person joined in civil union under the laws of Vermont except sexual orientation. Upon examination of the rejection of homosexual unions in the past, the reasons propounded for supporting distinctions, such as the at will nature of homosexual relationships and the absence of children, society's future, from their unions, simply do not apply, in light of the Vermont civil union and New York's and Vermont's rules regarding adoption. The civil union is indistinguishable for societal purposes from the nuclear family and marriage.... Accordingly, this court finds....that plaintiff, a surviving spouse under the laws of Vermont, is included within the meaning of spouse as it is used under section 4-1.1 of the EPTL, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.

Langan v. St. Vincent's Hospital


From Wikipedia, the free encyclopedia

In 2000, New York residents John Langan and Neil Conrad Spicehandler traveled to Vermont where they affirmed their commitment under Vermont's Civil Union laws. They were planning to adopt a child, and had purchased a house in Massapequa. Just hours after the closing of their house, Spicehandler was struck by an automobile in Manhattan. Spicehandler subsequently died following treatment at Saint Vincent's Catholic Medical Center. Survivor Langan brought a malpractice suit against the Hospital, arguing standing as a "spouse" for purposes of New York's wrongful deathstatute.

Lower court ruling[edit]


In 2003, the New York Supreme Court (the state's trial court) held that Langan had standing as a "spouse" for the purposes of New York's wrongful death statute. New York courts, under principles of full faith and credit and comity recognize valid contracts established under the laws of her sister states so long as they do not offend a New York state policy. This is especially true of marriages celebrated in other states. Spouses in out-of-state marriages would thus be extended the privileges and immunities the marriage laws of New York extend to marriages officiated in-state. Even common law marriages, which are not recognized for in-state New York cohabiting partners, are recognized for purposes of New York spousal benefits so long as the common law marriage was validly entered into in another state. The court ruled that partners in a civil union, a relationship status wholly legal in Vermont, are therefore indistinguishable from spouses in marriage to the extent of the rights conferred to a "spouse" under New York's wrongful death statute.

Intermediate court ruling[edit]


On Oct. 11, 2005, the New York Supreme Court, Appellate Division (intermediate appellate level court) overturned the lower court ruling. The appellate court concluded that the state legislature did not contemplate protecting same-sex couples when it enacted the wrongful death statute and that Langan had failed to demonstrate that there was no legitimate purpose for the statutes exclusion of same-sex couples. Langan v. St. Vincents Hospital, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005).

Highest court ruling[edit]


The New York Court of Appeals, the state's highest court, affirmed in 2006 the intermediate court's decision to deny Langan standing as surviving "spouse", thus blocking Langan from bringing suit against St. Vincent's Hospital. Langan v. St. Vincent's Hospital, 25 A.D.3d 90, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005), review denied, 850 N.E.2d 672 (N.Y. 2006).

UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 04-2093 BEN JARVISON, Defendant - Appellee.

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR 04-0073) Marron Lee, Assistant United States Attorney (David C. Iglesias, United States Attorney with her on the brief), Albuquerque, New Mexico, for the PlaintiffAppellant. Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, New Mexico, for the Defendant-Appellee. Before KELLY, ANDERSON, and LUCERO, Circuit Judges. LUCERO, Circuit Judge. In this interlocutory appeal involving a claim that the defendant, Ben Jarvison, is not validly married, the United States contests the district court's exclusion of testimony on the basis of the spousal testimonial privilege. As part of the underlying child sexual abuse prosecution, the United States sought to compel the testimony of Esther Jarvison who they contend observed the abuse and could testify as to statements concerning the abuse made to her by both the defendant Ben Jarvison and the alleged victim. After determining that the Jarvisons had a valid marriage, the district court denied the government's motion to compel Esther's testimony. On appeal, the government argues that the district court erred in refusing to compel Esther's testimony on the basis of the spousal testimonial privilege, and in the alternative invites us to create a new exception to the spousal testimonial privilege for child abuse cases. Exercising jurisdiction under 18 U.S.C. 3731, we AFFIRM the district court's order denying the government's motion to compel Esther Jarvison's testimony

and decline the government's invitation to create a new exception allowing courts to compel adverse spousal testimony in cases involving allegations of child abuse. I This appeal centers around Esther Jarvison's ("Esther") refusal to testify against Ben Jarvison ("Jarvison") in a criminal case in which Jarvison is accused of sexually abusing their granddaughter, Jane Doe. After the government indicted Jarvison for aggravated sexual abuse of a minor child in Indian Country, it attempted to compel Esther to testify against Jarvison. Esther, an 85-year-old Navajo woman who speaks quite limited English, and Jarvison, who is 77 years old, are residents of the Navajo Indian Reservation and enrolled members of the Navajo Tribe. Jarvison also speaks only limited English, and communicates mostly in Navajo. The testimony proffered by the government involves statements allegedly made by Esther to Federal Bureau of Investigation ("FBI") and Navajo Police investigators in an untaped, English-language interview. The government contends that Esther stated that she observed the child touch Jarvison's penis "over his pants," that Jane Doe allegedly told Esther that Jarvison had touched her private parts, and that Jarvison told Esther that the child had touched him over the crotch of his pants and he had told her not to do so.(1) Esther denies that she made such statements. As part of its pretrial preparations, the government served Esther with a subpoena to compel testimony two days before a pretrial hearing in this case. During the hearing, Esther emphatically stated that she did not want to testify against her husband and that she and Jarvison had married in a traditional Navajo ceremony in Coyote Canyon within the Navajo Reservation on June 25, 1953. The district court found that the Jarvisons had a valid marriage based on this 1953 traditional Navajo ceremony, and concluded that the spousal testimonial privilege applied under Trammel v. United States, 445 U.S. 40 (1980). Before the district court, the government argued that the marriage was not valid because: (1) Esther had not testified to every element of a "traditional ceremony" under the Navajo Code; (2) the Jarvisons had not recorded the traditional marriage with the Navajo tribal government; and (3) an intervening relationship with Esther's daughter had extinguished any marriage. The government's proffer included proposed evidence that the Jarvisons lived together from 1953 until 1965, at which point Esther moved out upon Jarvison's commencement of a sexual relationship with Esther's daughter from a prior marriage. Jarvison had two children with Esther prior to 1965, and four children with the daughter over the next fifteen years. In 1980, the relationship with the daughter ended, and Esther moved back in with Jarvison. Over the ensuing years, Esther and Jarvison separated and reconciled multiple times, and in 2000 began to live together again on a full-time basis. The documents submitted by

the government reflect that in 2002, when the alleged sexual abuse occurred, Esther was living with Jarvison and was still cohabiting with him in 2003 when interviewed by the FBI and Navajo Police about the alleged abuse. These FBI statements relied upon by the government state that "[Esther] JARVISON and BEN have been married for over 50 years." The court allowed the government to present a witness from the Navajo Vital Records Office to testify to certain records on Jarvison maintained by the Navajo Nation that stated "no" in the block marked "married," but did list Esther as Jarvison's "wife." These documents also listed all of Jarvison's children as Esther and Jarvison's. After the court denied its motion to compel Esther's testimony on the basis of the existence of a valid marriage and the spousal testimonial privilege under Trammel, the government requested reconsideration and moved to supplement the record with additional documentary evidence to show that no valid marriage had ever occurred. These two exhibits consisted of the two investigatory reports made in 2003. The court admitted the documents but found they contained nothing that would cause it to reexamine its conclusion that the Jarvisons were married and that spousal testimonial privilege applied.(2) This interlocutory appeal by the government followed. II When reviewing a district court decision to exclude evidence, we review the district court's decision for an abuse of discretion. United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th Cir. 1998). Although we review legal issues de novo, United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir. 1990), we must accept the court's factual findings unless we conclude they were clearly erroneous. Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). A finding of fact is not clearly erroneous unless "it is without factual support in the record," or unless the court "after reviewing all the evidence, is left with a definite and firm conviction that the district court erred." Id. We view the evidence on appeal in the light most favorable to the district court's ruling, giving due regard to the district court's opportunity to judge witness credibility, and must uphold any district court finding that is permissible in light of the evidence. Id. at 813. The United States contends that the district court erred in determining that the Jarvisons were married under traditional Navajo law, and that even if married, the marriage was a sham or moribund and was created solely to avoid testifying. The second argument that the marriage was a sham or moribund and was created solely to avoid testifying was not raised or argued below before the district court in either the government's original motion or motion to reconsider. Accordingly, we decline to address it for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976); In re Walker, 959 F.2d 894, 896 (10th Cir. 1992).(3)

A Our analysis of the district court's conclusion that the Jarvisons had a valid marriage requires us first to examine what law would apply to the question of a marriage between two Navajo tribal members who live completely within the boundaries of the Navajo Reservation. The district court implicitly evaluated the marriage under Navajo law stating that: "The Court is of the opinion that a marriage legal in the Navajo Nation 50 years ago is still legal." It is often assumed without discussion by courts that, in cases arising on an Indian Reservation within a State, the substantive law of the State is controlling in such situations. Louis v. United States, 54 F.Supp. 2d 1207, 1209-10 (D.N.M. 1999). However, because the Navajo Nation retains sovereign authority to regulate domestic relations laws, including marriage of its Indian subjects, Navajo law is dispositive as to the validity of the marriage in question. See Montana v. United States, 450 U.S. 544, 564 (1981) ("Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members"); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) ("Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations."); Cheromiah v. United States, 55 F.Supp. 2d 1295, 1305 (D.N.M. 1999) (examining the sovereignty retained by Indian tribes and law of the place in Federal Torts Claims Act case); Jim v. CIT Financial Services Corp., 533 P.2d 751, 752 (N.M. 1975) (recognizing that laws of the Navajo Tribe are entitled by Federal law to full faith and credit in the courts of New Mexico because the Navajo Nation is a "territory" within the meaning of 28 U.S.C. 1738); Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1090 (N.M. App. 1997) (same). The government assumes that New Mexico law is the applicable law by which to measure the validity of the marriage, but discusses Navajo law because New Mexico recognizes valid common law marriages from other jurisdictions. Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding marriage and domestic relations. Because domestic relations are considered by the Tribe as being at the core of Navajo sovereignty, In re Francisco, 16 Indian L. Rep. 6113 (Navajo 1989),(4) we conclude that Navajo law is the appropriate law under which to evaluate the validity of the marriage. See Montana, 450 U.S. at 565; Marris v. Sockey, 170 F.2d 599 (10th Cir. 1948) (holding that tribal Indians domiciled within the territorial limits of an Indian nation in Indian Territory and who consummated a marriage or divorce in accordance with recognized tribal custom before such customs had been superceded by other law, were bound by the legal effect given to such customs); see also Beller v. United States, 221 F.R.D. 679 (D.N.M. 2003) (determining validity of a Navajo couple's marriage by examining required elements of common law marriage under Navajo law).

B Navajo law currently recognizes multiple ways to establish a valid marriage. It recognizes both those marriages contracted outside the Navajo Reservation (if valid by the laws of the place where contracted), and those within the Reservation under the requirements of Title 9 of the Navajo Nation Code. Navajo Code recognizes both traditional and common law marriage. Navajo Code tit. 9, 3 and 4 (1993).(5) Because the alleged marriage in this case spans more than a fifty-year period, a proper understanding of the evolution of Navajo law on traditional and common-law marriage is required to resolve the validity of the Jarvisons' marriage. Under Navajo tradition, celebration of a traditional marriage ceremony and the knowledge thereof by the community were sufficient to create a valid marriage. A marriage license or other documentation was unnecessary.See In re Francisco, 16 Indian L. Rep. 6113 ("After [participating] in the traditional Navajo wedding ceremony, some couples do not obtain marriage licenses because, traditionally, the performance of the ceremony completely validates the union."); see also Antoinette Sedillo Lopez, Evolving Indigenous Law: Navajo Marriage-Cultural Traditions and Modern Challenges, 17 Ariz. J. Int'l & Comp. L. 283, 292 (2000). Navajo marriages have been governed by tribal statute since 1940 when the Tribal Council passed a Resolution requiring Navajo couples desiring to marry in a traditional ceremony to obtain a marriage license. See Lopez, supra at 293; Navajo Tribal Council Res. CJ-240 (June 3, 1940) (recognizing that the overwhelming number of Navajo who have not been to school are married by tribal custom). Despite the seemingly clear language in this Resolution, subsequent Navajo court decisions interpreted the Resolution as making the license requirement "directory" rather than mandatory, and court decisions and subsequent Tribal Council Resolutions recognized the validity of both unlicensed traditional and common law marriages. This apparent conflict between the desire to formalize marriage by requiring a license and the desire to respect tribal custom and belief concerning traditional marriage(6) reflects the tension between the necessity of proving marriage in the modern bureaucratic state,(7) and Navajo law's commitment to incorporate Navajo tradition as a source of law. See Bennett v. Navajo Board of Election Supervisors, No. A-CV-26-90 (Navajo 1990) (holding that fundamental Navajo customs and traditions are part of "higher law");(8) Navajo Tribal Council Res. CAP-36-80 (Apr. 30, 1980) (recognizing difficulty in obtaining government benefits caused by inability to validate traditional marriages). In 1944 the Tribal Council validated preexisting marriages recognized by the community even though not accompanied by church, state, or Tribal custom ceremony. See Unnumbered Navajo Tribal Council Res. amending CJ-2-40 (July 18, 1944); In re Francisco, 16 Indian Law Rep. 6113; see also Navajo Code, tit. 9 8 (the 1944 amendment was the precursor to the current 8). Recognizing that Navajo

couples had continued to marry through unlicensed traditional ceremonies, in 1954 the Tribal Council adopted a resolution validating all pre-January 31, 1954 Navajo marriages that were out of compliance with earlier Navajo Tribal Council resolutions requiring a license. David L. Lowery, Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969-1992, 18 Am. Indian L. Rev. 379, 405 (1993); In re Francisco, 16 Indian L. Rep. 6113; Navajo Tribal Council Res. CF-2-54 (Feb. 11, 1954) ((codified at Navajo Code tit. 9, 61, (1977), amended by Navajo Tribal Council Res. CAP-36-80 (Apr. 30, 1980)). In 1957, the Tribal Council, recognizing the frequent necessity of documentary proof of marriage, established a procedure allowing those whose prior marriages were validated by the 1954 resolution, to petition for a formal recognition of marriage through the Navajo courts. Navajo Tribal Council Res. CF-14-57 (Feb. 4, 1957). Although the 1954 resolution requiring marriage licenses was passed to avoid problems in obtaining government benefits for dependents by encouraging tribal members to obtain marriage licenses, Navajo courts subsequently validated "customary" marriages that occurred after the January 31, 1954 date as "common law" marriages, thus achieving the same result. See Lowery,supra at 405; In re Marriage of Daw, 1 Navajo Rptr. 1, 3 (Navajo Ct. App. 1969).(9) Ten years later, the Navajo courts acknowledging the language of the 1954 Tribal Council Resolution again held that "any marriage contracted by tribal custom after January 31, 1954, may not be validated by the tribal court, but is recognized as a common law marriage." In re Marriage of Ketchum, 2 Navajo Rptr. 102, 105 (Navajo Ct. App. 1979).(10)The court's In re Ketchum opinion listed the requirements of a common law marriage as: (1) present consent to be husband and wife; (2) actual cohabitation; and (3) actual holding out to the community to be married. Lowery, supra at 405-06; In re Ketchum, 2 Navajo Rptr. 102, 104105 citing Kelly v. Metropolitan Life Ins. Co., 352 F.Supp. 270 (S.D.N.Y. 1972) (listing essential features of common law marriage), and Meister v. Moore, 96 U.S. 76 (1878) (deciding that common law marriage exists absent a statute to the contrary). In 1980, the Tribal Council eliminated the January 31, 1954 cutoff date for the validation of traditional Navajo marriages that had been entered into without licenses, recognizing both that the Navajo people had continued to marry in traditional ceremonies since 1954 and that the "law of validated marriages has created problems and hardships for numerous married Navajo people." Lopez, supra at 296; Navajo Tribal Res. CAP-36-80 (Apr. 30, 1980). However, in an effort to encourage the move toward formalization and to ease the problem of accurate record keeping, the Tribal Council urged the Navajo people to obtain Navajo Tribal marriage licenses prior to marriage and record them within three months. By eliminating the cutoff date, the Council allowed all traditional marriages to be validated, extending federal benefits normally afforded to married couples to those Navajo couples "who were recognized in the community as being married and who considered themselves spiritually united

in accordance with Navajo cultural and religious tradition." Lopez, supra at 296 (citing Navajo Tribal Council Res. CAP 36-80 (Apr. 30, 1980)). Although the Supreme Court of the Navajo Nation confirmed the institution of common law marriage in a 1988 decision, Navajo Nation v. Murphy, 6 Navajo Rptr. 10,(11) in 1989 it ruled that "Navajo tradition and culture do not recognize commonlaw marriage," and overruled all prior rulings permitting Navajo courts to validate unlicensed marriages in which a Navajo traditional ceremony had not occurred. Lowery, supra at 406; In re Marriage of Francisco, 16 Indian L. Rep. 6113 (Navajo 1989). While declaring "Anglo-style" common law marriages invalid as contrary to Navajo tradition in In re Francisco, the Navajo Supreme Court reaffirmed its responsibility under CAP 36-80 to validate unlicensed marriages consecrated with a traditional ceremony. Lowery, supra at 406; In re Francisco, 16 Indian L. Rep. 6113; Lopez, supra at 299. In 1993, the Tribal Council rejected the Navajo Supreme Court's holding in In re Francisco invalidating common law marriages and explicitly included common law marriages in the Navajo Code. Navajo Nation Code, tit. 9, sec. 3 (1993); Lopez,supra at 299. Current Navajo law allows parties to contract marriage through a traditional ceremony or by common-law marriage within the Navajo Nation as follows: D. The contracting parties engage in a traditional Navajo wedding ceremony which shall have substantially the following features: 1. The parties to the proposed marriage shall have met and agreed to marry; 2. The parents of the man shall ask the parents of the woman for her hand in marriage; 3. The bride and bridegroom eat cornmeal mush out of a sacred basket; 4. Those assembled at the ceremony give advice for a happy marriage to the bride and groom; 5. Gifts may or may not be exchanged; 6. The person officiating or conducting the traditional wedding ceremony shall be authorized to sign the marriage license, or E. The contracting parties establish a common-law marriage, having the following features: 1. Present intention of the parties to be husband and wife;

2. Present consent between the parties to be husband and wife; 3. Actual cohabitation; 4. Actual holding out of the parties within their community to be married. Navajo Code, tit. 9 3. Against this checkered statutory and historical background we assess the district court's determination in this case. C Although later conceding that New Mexico recognizes valid common law marriages from other jurisdictions, the government initially contends that the district court erred when it determined that a valid marriage existed between the Jarvisons because New Mexico law does not recognize common law marriage. We reject the government's first argument for the reasons stated above. Additionally, the government contends that there was insufficient evidence to support the district court's conclusion that the Jarvisons had a traditional ceremonial marriage under the Navajo Code. Moreover, because the Jarvisons had not completed the procedure under Navajo law to validate a traditional or common law marriage, the government argues that their marriage was invalid. In evaluating the government's contentions, we observe that the district court could have produced a more robust order detailing its findings of fact and evidentiary basis similar to the detailed findings of fact and conclusions of law in Beller v. United States, 221 F.R.D. 679 (D.N.M. 2003). Nonetheless, on our review of the record, we conclude that the evidence in the record is sufficient to establish a valid marriage between the Jarvisons. SeeUnited States v. Taylor, 97 F.3d 1360, 1364 (10th Cir.1996) (holding that despite a trial court's failure to make specific factual findings, an appellate court is free to affirm on any grounds for which there is sufficient record to permit conclusions of law). In this case, Esther testified to having married Jarvison in a traditional Navajo ceremony on June 25, 1953 at Coyote Canyon within the Navajo Reservation. She identified the particular Navajo medicine man who performed the ceremony. She answered yes when the court asked her "[is] that a traditional marriage under Navajo law?" Although the government makes much of the fact that Esther did not testify to the exact requirements outlined in the Navajo Code provision, the statute itself requires only that the couple "engage in a traditional Navajo wedding ceremony which shall have substantially the following features

. . . ." Navajo Code, tit. 9 3D (emphasis added). Esther's testimony and the inferences arising therefrom support the district court's conclusion that a valid traditional Navajo marriage ceremony occurred in 1953, crediting "due regard to the district court's opportunity to judge witness credibility." Manning, 146 F.3d at 813. Under Navajo law, such an unlicensed traditional marriage occurring prior to 1954 was valid. See Navajo Tribal Council Res. CF-2-54, Feb. 11, 1954; see also Navajo Code, tit. 9 3D. Review of the government's evidence of record further supports the conclusion that the Jarvisons' ceremony would be considered valid under Navajo law. In explaining the Navajo Nation records concerning the Jarvisons, Ms. Gertrude Peshlakai, a statistics technician from the Navajo Nation, testified that the Tribe recognized the marriages of many of the elderly Navajos who were married in traditional ceremonies in the forties and fifties who often did not have their marriages validated by the Tribe either as a traditional ceremony or as a common-law marriage. Although recognizing the internal inconsistencies on the Navajo Records,(12) Peshlakai testified that the census records indicated to her that "the individual might have had a traditional wedding." Her answers to somewhat tortured questions by counsel are relevant to our evaluation: Question by defense counsel: "Okay, And what would that mean, then, in terms at least the tribe recognizing that term of wife in the context of whether or not there's a real marriage, in a traditional sense? What does that mean to me?" Peshlakai: "That means they had a traditional wedding." Defense Counsel: "And does you used the term 'elderlies' before. But was it prevalent in the forties and fifties that on occasion people who were married in a traditional sense on the Navajo Reservation did not obtain what you call the paperwork to actually get a marriage license like it's done now?" Peshlakai: "Yes." Defense Counsel: "The tribe, I take it, recognizes those, quote, elderlies as married, don't they?" Peshlakai: "Yes." Thus, testimony from the government's witness establishes that the Tribe does recognize "elderlies," such as Esther and Ben Jarvison, as married even if the marriage is not validated or licensed.

The Jarvisons' failure to license or validate their 1953 traditional marriage does not result in their marriage being invalid under Navajo law. As noted above, the 1954 Navajo Tribal Council Resolution explicitly validated unlicensed traditional marriages performed prior to 1954. Navajo Tribal Council Res. CF-2-54, Feb. 11, 1954. Additionally, Navajo law requires that a traditional tribal marriage must be terminated by formal divorce even if the marriage is not recorded or validated. See In the Matter of Validation of Marriage of Slowman, 1 Navajo Rptr. 142 (Navajo Ct. App. 1977);(13) In the Matter of Documenting the Marriage of Slim, 3 Navajo Rptr. 218 (Crownpoint D. Ct. 1982);(14) see also Navajo Code, tit. 9 407 (1993) ("No person, married by Tribal custom, who claims to have been divorced shall be free to remarry until a certificate of divorce as been issued by the Courts of the Navajo Nation."); Tribal Council Resolution CJ-3-40, July 18, 1944. To the extent that the government claims that the relationship with Esther's daughter constituted a common-law marriage extinguishing Ben and Esther's traditional marriage, the lack of a divorce ending the original 1953 marriage defeats this argument. Taken as a whole, the Navajo Domestic Code takes care to maintain the validity of prior marriages that would not necessarily meet current code requirements for marriage.(15) In addition to longstanding Navajo common law and current Navajo Code recognizing unlicensed or unvalidated traditional marriages performed at times when licenses were ostensibly required,(16) current Navajo law does not necessarily require a license.(17) Thus, the government's contention that the Jarvisons' marriage is invalid because they did not have their marriage validated or licensed fails under Navajo law. Despite the district court's failure to make specific findings of fact underpinning its determination of a valid marriage, sufficient evidence is in the record validating the Jarvisons' marriage for the purposes of the spousal testimonial privilege. The government also conceded at oral argument, to our mind, properly so, that if the case were remanded to the district court, the Jarvisons could establish the elements of common law marriage. The government's own proffer in its motion for reconsideration establishes that Esther and Jarvison were cohabiting from 1953 to 1980, and again from 2000 onwards, including the date of the alleged abuse in 2002 and the criminal investigation in 2003. The vital records and investigative reports produced by the government show that Esther and Jarvison held themselves out as husband and wife, and Esther Jarvison testified under oath that she was Jarvison's wife. Although it is true that the burden of establishing the applicability of a privilege is on the party seeking to assert it, Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995), we conclude that standard was met here. III

The government invites us to create a new exception to the spousal testimonial privilege akin to that we recognized in United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997). In Bahe, we recognized an exception to the marital communications privilege for voluntary spousal testimony relating to child abuse within the household. Federal courts recognize two marital privileges: the first is the testimonial privilege which permits one spouse to decline to testify against the other during marriage; the second is the marital confidential communications privilege, which either spouse may assert to prevent the other from testifying to confidential communications made during marriage. See Trammel, 445 U.S. at 44-46; Bahe, 128 F.3d at 1442; see also Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (recognizing justification of marital testimonial privilege as modified by Trammel because it "furthers the important public interest in marital harmony). In order to accept the government's invitation, we would be required not only to create an exception to the spousal testimonial privilege in cases of child abuse, but also to create an exception not currently recognized by any federal court allowing a court to compel adverse spousal testimony. The district court in this case held that Esther and Ben Jarvison "have a valid marriage and that Esther Jarvison wishes to invoke the privilege against adverse spousal testimony, pursuant to Trammel v. United States, 445 U.S. 40 (1980)." The Court in Trammel specifically held that "the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying." Trammel, 445 U.S. at 53; Bahe, 128 F.3d at 1442. Although the "Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials governed by the principles of the common law as they may be interpreted . . . in the light of reason and experience," Trammel, 445 U.S. at 47(internal citations and quotations omitted), we do not consider this to be the appropriate case to examine whether the holding in Trammel can or should be reexamined. Accordingly, we reject the government's request to create an new exception, and AFFIRM. No. 04-2093, United States v. Jarvison ANDERSON, Circuit Judge, dissenting: The majority opinion holds that the district court correctly found that Esther had met her burden to prove entitlement to the spousal testimony privilege. Because I believe that the majority fails to actually put Esther to that burden, fails to acknowledge that the district court crippled the government in its effort to counter that burden by refusing to permit the government to cross-examine Esther, and minimizes the significance of Jarvison's lengthy relationship with Esther's daughter, I respectfully dissent.

The majority acknowledges that the person seeking to assert an evidentiary privilege bears the burden of establishing its applicability. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995). However, the sum total of the relevant testimony presented by Esther, the person invoking the spousal testimony privilege in the face of the government's motion to compel that testimony, was as follows: THE COURT: Okay. When were you married? THE WITNESS: June 25 where? THE COURT: No. When? THE WITNESS: June 25, 1953. THE COURT: Okay. And where were you married? THE WITNESS: Coyote Canyon. THE COURT: Is that on the Navajo Reservation? THE WITNESS: Navajo Reservation. THE COURT: By whom were you married? THE WITNESS: Oh, a person, John Venson. THE COURT: Is he a Navajo medicine man? THE WITNESS: Yes. THE COURT: Okay. Is that a traditional marriage under Navajo law? THE WITNESS: Yes. Appellant's App. at 87-90. The court then declared "Okay. That's good enough for me." Id. at 90. When the government sought to cross-examine Esther, the court responded, "No, I've heard enough. I'm not going to intrude any further on her marriage." Id. The one witness the government was permitted to introduce was unable to confirm the Navajo Tribe's view of the existence and validity of the purported marriage of Esther and Jarvison, although the district court essentially disregarded the witness's view in any event:

[I]t doesn't make any difference, in my judgment, under this kind of procedure whether the tribe thinks they're married or not. If they think they are married, and they thought they were married by a tribal medicine man, and nobody made a record of it, that doesn't mean that they're not married. Id. at 95. Thus, the district court held that Esther had carried her burden of proving entitlement to the spousal privilege because she simply stated she had been married in a Navajo traditional ceremony, although no documentary evidence clearly supported the existence and validity of that marriage. The majority attempts to bolster Esther's otherwise bare-bones testimony by claiming that the evidence need only show "substantial" compliance with the requirements under the Navajo Code for a valid traditional marriage. But Esther's testimony hardly shows even a substantial compliance--all she stated was that she had been married by a man she said was a Navajo medicine man and that she believed it was a traditional ceremony. Not a shred of evidence was presented with respect to the remaining requirements of Navajo Code, tit. 9, 3 for establishing the performance of a traditional Navajo wedding ceremony. Furthermore, the district court severely handicapped the government in its effort to rebut her assertion of the existence of a valid marriage when it refused to let the government cross-examine Esther. The majority concedes that "the district court should have allowed the Government to cross-examine Esther on her claim of marriage" but then states that "its failure to do so must be evaluated for prejudice after considering the totality of the evidence presented on the marriage." Maj. Op. at 5-6, n.2. While the majority notes that the government was afforded the opportunity to present a witness whose testimony was, quite simply, inconclusive on whether there was a valid marriage between Esther and Jarvison, and to present a proffer of what they believed Esther's testimony would establish, the government was not afforded the opportunity to test Esther's credibility. Since the district court had already put everyone on notice that Esther's testimony would be crucial, it was clearly prejudicial to prohibit the government from cross-examining her in order to probe her credibility. Finally, I disagree with the majority's conclusion that the totality of the evidence presented concerning the existence of a valid marriage suffices to establish that the marriage existed. The majority summarily dismisses the fact that, after cohabiting with Esther for some twelve years, Jarvison then left Esther, began cohabiting with Esther's daughter from a previous marriage, and had four children with the daughter over a fifteen-year span of cohabitation. Esther and Jarvison's "reunion" following that lengthy relationship between Jarvison and Esther's daughter has been sporadic, at best. The majority concludes that "the lack of a divorce ending the original 1953 marriage

defeats th[e] argument" that the relationship with Esther's daughter constituted a common-law marriage which extinguished any prior marriage. Maj. Op. at 20. This could lead to absurd results--an allegedly valid marriage of short duration could be followed by a thirty-year common law marriage, yet the spouse from the first marriage could claim a spousal testimonial privilege while the common-law spouse from the second relationship could not. The majority is willing to overlook the need for formalities, records, and documents when it comes to determining the creation of a marriage but strictly enforces such requirements when it comes to terminating a marriage. That fails to take account of the realities of this case. I therefore respectfully dissent.

285 Kan. 53 Supreme Court of Kansas. In the Interest of K.M.H., a child under age eighteen, and K.C.H., a child under age eighteen. In the Matter of the Paternity of K.C.H. and K.M.H., by and through their next friend, D.H., Appellant, and S.H., Appellee. No. 96,102. | Oct. 26, 2007. Synopsis Background: Mother impregnated via artificial insemination brought children-in-need-of-care petition against sperm donor, seeking declaration that donor was unfit parent and termination of donors parental rights. Donor sought declaration of paternity and requested joint custody and visitation. Upon consolidating petitions, the Shawnee District Court, Robert J. Schmisseur, J., sustained mothers motion to dismiss donors petition, and donor appealed.

Holdings: The Supreme Court, Beier, J., held that:

[1] law of Kansas, and not Missouri, governed mothers

petition to terminate sperm donors parental rights and donors action for paternity;

[2] as matter of first impression, statute barring presumption of paternity for sperm donor absent written agreement to contrary did not violate equal protection or due process;

[3] donors delivery of sperm to mother rather than to licensed physician who performed artificial insemination did not take donor outside scope of statutory bar against presumption of paternity;

[4] mothers petition within which she referred to donor as twins father was not agreement in writing regarding donors status as father; and

[5] specific paternity statute applicable to sperm donors controlled over general paternity statute.

Affirmed.

McFarland, C.J., filed concurring opinion.

Caplinger, J., filed dissenting opinion, in which Hill, J., joined.

Hill, J., filed dissenting opinion.

**1028 *53 Syllabus by the Court 1. When reviewing an appeal from summary judgment, an appellate court must view the evidence in the light most favorable to the nonmoving party. A judgment for the moving party should be affirmed on appeal if there remains no genuine issue of material fact for trial and the case is appropriate for disposition in that partys favor as a matter of law.

2. The factors relevant to a constitutional choice-of-law determination include the procedural or substantive nature of the question involved, the residence of the parties involved, and the interest of the State in having its law applied. As long as Kansas has significant contact or a significant aggregation of contacts to ensure that the choice of Kansas law is not arbitrary or unfair, constitutional limits are not violated. To the extent a case

involves a contractual dispute, Kansas courts apply the Restatement (First) of Conflict of Laws 332 (1934), and the doctrine of lex loci contractus, i.e., the law of the state where the contract is made governs. A contract is made where the last act necessary for its formation occurs.

3. Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present facts sufficient to show that other law should apply. Failure to present facts sufficient to determine where a contract is made may justify a default to forum law.

4. On the facts of this case, where the parties are Kansas residents; any agreement that existed between them was arrived at in Kansas; promises supported by consideration were exchanged in Kansas and delivered upon in Kansas; and the subject children were born in Kansas and reside in Kansas, Kansas law applies, despite the fact that the artificial insemination resulting in the childrens conception was performed at a Missouri clinic.

5. An appellate courts review of whether a statute is constitutional raises a question of law reviewable de novo. The constitutionality of a statute is presumed; all doubts must be resolved in favor of its validity, and it In re K.M.H., 285 Kan. 53 (2007)

169 P.3d 1025

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must clearly appear that the statute violates the Constitution before it can be invalidated.

*54 6. The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. A statutory gender classification is subject to intermediate, or heightened, scrutiny. In order to pass muster under the federal and state equal protection provisions, a classification that treats otherwise similarly situated individuals differently based solely on the individuals genders must substantially further a legitimate legislative purpose; the governments objective must be important, and the classification substantially related to achievement of it.

7. The requirement of K.S.A. 381114(f) that any opt-out agreement between an unmarried mother and a known sperm donor intended to avoid the statutory bar against the paternity of the donor must be in writing does not result in an equal protection or due process violation.

8. When called upon to interpret a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, the court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. The court need not resort to statutory construction. It is only if the statutes language or text is unclear or ambiguous that the court moves to the next analytical step, applying canons of construction or relying on legislative history to effect the legislatures intent.

9. K.S.A. 381114(f) does not require a sperm donor to provide his sperm directly to a physician performing an artificial insemination. 10. Under the facts of this case, a child in need of care petition and a paternity petition did not, either individually or together, satisfy the K.S.A. 381114(f) requirement of a written agreement between the parties.

11. A specific statute controls over a general statute. Likewise, a specific provision within a statute controls over a more general provision within the statute. K.S.A.

381114(f) is more specific to cases involving **1029 artificial insemination *55 using donor sperm than the general presumption of paternity set out in K.S.A. 381114(a)(4).

12. Under the facts of this case, the sperm donor may not pursue equitable arguments not pursued in the district court or in his opening appellate brief. Moreover, the appellate record contains no evidence to support his assertions of nefarious conduct by the recipient.

Attorneys and Law Firms Kurt L. James, of Topeka, argued the cause and was on the briefs for appellant. Susan Barker Andrews, of Topeka, argued the cause and was on the briefs for appellee. Linda Henry Elrod, Distinguished Professor of Law and Director, of Topeka, was on the brief for amicus curiae Washburn University School of Law Children and Family Law Center. Timothy M. OBrien, of Shook Hardy & Bacon. L.L.P., of Overland Park, was on the brief for amicus curiae Family Law Professors. Opinion The opinion of the court was delivered by BEIER, J.:

This appeal from a consolidated child in need of care (CINC) case and a paternity action arises out of an artificial insemination leading to the birth of twins K.M.H. and K.C.H. We are called upon to decide the existence and extent of the parental rights of the known sperm donor, who alleges he had an agreement with the childrens mother to act as the twins father.

The twins mother filed a CINC petition to establish that the donor had no parental rights under Kansas law. The donor sued for determination of his paternity. The district court sustained the mothers motion to dismiss, ruling that K.S.A. 381114(f) was controlling and constitutional. That statute provides: The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donors wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. K.S.A. 381114(f).

Factual and Procedural Background Many of the underlying facts are undisputed. The mother,

S.H., is an unmarried female lawyer who wanted to become a parent *56 through artificial insemination from a known donor. She was a friend of the donor, D.H., an In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

2013 Thomson Reuters. No claim to original U.S. Government Works. 3

unmarried male nonlawyer, who agreed to provide sperm for the insemination. Both S.H. and D.H. are Kansas residents, and their oral arrangements for the donation occurred in Kansas, but S.H. underwent two inseminations with D.H.s sperm in Missouri.

D.H. accompanied S.H. to a Missouri clinic for the first procedure and provided the necessary sperm to medical personnel. The first procedure did not result in a pregnancy. D.H. did not accompany S.H. to Missouri for the second procedure. Instead, he provided the sperm to S.H., and she delivered it to the Missouri physician responsible for the insemination. The second procedure resulted in S.H.s pregnancy and the birth of the twins.

There was no formal written contract between S.H. and D.H. concerning the donation of sperm, the artificial insemination, or the expectations of the parties with

regard to D.H.s parental rights or lack thereof.

The twins were born on May 18, 2005. The day after their birth, S.H. filed a CINC petition concerning the twins, seeking a determination that D.H. would have no parental rights. The petition identified D.H. as *t+he minor childrens father and alleged that the twins were in need of care as it relates to the father and that the *f+ather should be found unfit and his rights terminated. The petition continued to refer to D.H. throughout as the twins father.

On May 31, 2005, D.H. filed an answer to the CINC petition and filed a separate paternity action acknowledging his financial responsibility for the children and claiming parental rights, including joint custody and visitation. The CINC and paternity actions were consolidated. S.H. filed a motion to dismiss the paternity action, invoking K.S.A. 381114(f). After the motion was filed, the district judge raised questions concerning **1030 choice of law and the constitutionality of the statute and ordered the parties to brief these issues along with the other issues arising out of the motion to dismiss.

In her brief, S.H. argued Kansas law should apply because

her original oral agreement with D.H. took place in Kansas; the parties reside in Kansas; the sperm resulting in the pregnancy was given *57 to her by D.H. in Kansas; and the children reside in Kansas. In her view, the single fact that the procedure was performed by a doctor in Missouri did not constitute a significant contact with that state, and Missouri did not have a sufficient ongoing interest in the parties or in the subject matter of their dispute.

On the merits, S.H. principally relied upon K.S.A. 381114(f). S.H. argued that her CINC petition did not constitute her written assent to D.H.s parental rights under K.S.A. 381114(f). She also asserted that the mutual preinsemination intent of the partiesas a single mother-to-be and a sperm donor only, not as co-parentswas clear from their actions during the pregnancy. According to S.H., she sought out fertility tests and treatments on her own; D.H. did not attend the second procedure or sonograms or other prenatal medical appointments; and he did not provide emotional support or financial assistance during the pregnancy or after the twins birth. She also argued that D.H. was morally, financially, and emotionally unfit to be a father.

In his arguments in the district court, D.H. maintained that he had standing to file his paternity action as the biological father of K.M.H. and K.C.H. On choice of law, D.H. argued that Kansas conflict principles required the court to look to the place of either contract formation or contract performance. He asserted that the more sensible approach in this case would be to apply the law of the state where performance occurred, which was, according to him, where the artificial insemination was performed. D.H. said Missouri has no statute barring a presumption of paternity for a known sperm donor for an unmarried woman; paternity is proved by consanguinity or genetic test. D.H. also asserted that no doctor would perform an insemination on an unmarried woman in Topeka, Lawrence, or Kansas City, Kansas, and suggested a Kansas doctor could have had a duty to discuss the legal implications of the procedure under Kansas law while a Missouri doctor would not.

In the event the court held that Kansas law governed, D.H. argued that K.S.A. 381114(f) unconstitutionally deprived him of his right to care, custody, and control of his children and violated public policy support*ing+ the concept of legitimacy and the concomitant *58 rights of a child to support and inheritance. If the statute is

constitutional, he asserted, its dictate of nonpaternity of a sperm donor should not apply to him because he had provided his sperm to S.H. rather than to a licensed physician. He also cited the CINC petitions identification of him as the twins father and its faulting of him for failing to do things consistent with parenthood. D.H. asserted the wording of the CINC petition was evidence of the parties mutual intent to take themselves out from under the statutory provision for nonpaternity. He also contended that he had offered financial assistance and attempted to visit the children in the hospital after their birth and on subsequent occasions, but that he was prevented from doing so by S.H.

The district judge ruled that Kansas law governed, that In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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K.S.A. 381114(f) was constitutional and applicable, and that the CINC petition did not constitute a written agreement departing from the provision for nonpaternity set forth in the statute. The judge therefore granted S.H.s motion, concluding as a matter of law that D.H. had no legal rights or responsibilities regarding K.M.H. and

K.C.H.

Issues on Appeal On appeal, both parties reiterate the arguments they made to the district court, and D.H. alleges for the first time that another statutory provision and equity favor his side of the case. We therefore address six issues: (1) Did the district judge err in ruling that Kansas law would govern? (2) Did the district judge err in holding K.S.A. 381114(f) constitutional under the Equal Protection and Due Process Clauses of the Kansas and the federal Constitutions? (3) Did the district **1031 judge err in interpreting and applying the provided to a licensed physician language of K.S.A. 381114(f)? (4) Did the district judge err in determining that the CINC petition did not satisfy the requirement of a writing in K.S.A. 381114(f)? (5) Did K.S.A. 381114(a)(4) grant D.H. parental rights? and (6) Does equity demand reversal of the district court?

On this appeal, we also have the benefit of briefs from two amici curiaeone from the Washburn University School of Laws Children and Family Law Center (Center), which argues that K.S.A. 381114(f) is unconstitutional as applied to known sperm donors, *59

and one from family law professors Joan Heifetz Hollinger, et al., who argue that K.S.A. 381114(f) is constitutional and that it should be applied consistently with its plain language to bar D.H.s assertion of paternity.

Standing and Standard of Review The parties do not appear to dispute D.H.s standing to bring a paternity action at this stage in the proceedings, but we note briefly as a preliminary matter that his standing is not in serious doubt. K.S.A. 381115(a)(1) permits a child or any person on behalf of such a child to bring a paternity action to determine the existence of a father and child relationship presumed under K.S.A. 381114. It is D.H.s position that his fatherhood of the twins should be presumed under the statute.

[1]

[2]

[3] Regarding standard of review, each of the issues raised on appeal presents a pure question of law

reviewable de novo by this court. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829 (2002). Although S.H.s motion was titled Motion to Dismiss, the district judge considered materials beyond the pleadings, essentially treating the motion as one for summary judgment. We are therefore mindful of our often stated standard of review following summary judgment in the district court: We must view the evidence in the light most favorable to the nonmoving party, D.H. See Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006). The district courts judgment for the moving party, S.H., should be affirmed on appeal if there remains no genuine issue of material fact for trial and the case is appropriate for disposition in her favor as a matter of law. See K.S.A. 60256; Scott v. Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006); Kluin, 274 Kan. at 893, 56 P.3d 829.

Choice of Law [4] The United States Supreme Court has held: In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court has traditionally

examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Citation omitted.] In order to ensure that the choice of law is neither arbitrary nor fundamentally *60 unfair [citation omitted], the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction. Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981).

[5]

[6]

[7]

[8] Various factors are relevant to a choice-of-law determination, including the procedural or substantive nature of the question involved, the residence of the parties involved, and the interest of the State in having its law applied. Sun Oil Co. v. Wortman, 486 U.S. 717, 736, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (Brennan, J.,

concurring). As long as Kansas has significant contact or *a+ significant aggregation of contacts ... to ensure that the choice of Kansas law is not arbitrary or unfair, constitutional limits are not violated. *Citations omitted.+ Brenner v. Oppenheimer & Co., 273 Kan. 525, 534, 44 P.3d 364 (2002); see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 105 S.Ct. 2965, 86 L.Ed.2d In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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628 (1985) (citing Allstate Ins. Co. v. Hague, 449 U.S. at 31213, 101 S.Ct. 633); Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 790, 89 P.3d 908 (2004). Also, to the extent this case is viewed as a contractual dispute, Kansas courts apply the Restatement (First) of Conflict of Laws 332 (1934), and the doctrine of lex loci contractus, i.e., **1032 the law of the state where the contract is made governs. See ARY Jewelers v. Krigel, 277 Kan. 464, 481, 85 P.3d 1151 (2004); Wilkinson v. Shoneys, Inc., 269 Kan. 194, 20910, 4 P.3d 1149 (2000); Foundation Property Investments v. CTP, 37 Kan.App.2d 890, Syl. 4, 159 P.3d 1042 (2007); Layne Christensen Co. v. Zurich Canada, 30 Kan.App.2d 128, 14142, 38 P.3d 757 (2002). A contract is made where the last act necessary

for its formation occurs. ARY Jewelers, 277 Kan. at 48182, 85 P.3d 1151; Wilkinson, 269 Kan. at 210, 4 P.3d 1149; Foundation Property Investments, 37 Kan.App.2d at 89495, 159 P.3d 1042; Layne Christensen Co., 30 Kan.App.2d at 14143, 38 P.3d 757.

[9]

[10] Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply. Failure to present facts sufficient to determine where the contract is made may justify a default to forum law. Layne Christensen Co., 30 Kan.App.2d at 14344, 38 P.3d 757. In addition, we note that Kansas courts have often leaned toward a lex fori, or law of the forum, approach, opting to apply Kansas law *61 absent a clear showing that another states law should apply. See Dragon, 277 Kan. at 790, 89 P.3d 908; Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan.App.2d 266, 269, 788 P.2d 878 (1990). Moreover, our Court of Appeals has recognized in a case focused on the legitimacy of a child that, *i+n our current mobile society, place of conception of child carries little weight

*in choice of law determination+. In re Adoption of Baby Boy S., 22 Kan.App.2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied 519 U.S. 870, 117 S.Ct. 185, 136 L.Ed.2d 123 (1996). Instead, *w+hether a child is legitimate is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the child and the parent; considerations include the relative interests of those states in the determination of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, and the certainty, predictability and uniformity of result. Restatement (Second) of Conflict of Laws 6, 287(1) & comment d (1969).

D.H. urges us to follow the lead of the Illinois Supreme Court in In Re Marriage of Adams, 133 Ill.2d 437, 447, 141 Ill.Dec. 448, 551 N.E.2d 635 (1990), which applied the law of the state where an insemination was performed because it would fulfill the participants expectations and ... help insure predictability and uniformity of result.

In Adams, a husband and wife had been Florida residents; their consultations concerning fertility options occurred in Florida; the artificial insemination from an anonymous

donor was performed by a Florida doctor in his Florida clinic; and the baby was born in Florida and was a Florida resident until the wife moved herself and the child to her parents home in Illinois and then filed for divorce. The husband sought a determination of nonpaternity, and the court determined that Florida law should govern because Florida had a more significant relationship than Illinois to the parentage dispute. 133 Ill.2d at 447, 141 Ill.Dec. 448, 551 N.E.2d 635.

The facts of this case bear little resemblance to the facts of Adams. Here, the parties are Kansas residents. Whatever agreement that existed between the parties was arrived at in Kansas, where they exchanged promises supported by consideration, and D.H. literally delivered on his promise by giving his sperm to S.H. The *62 twins were born in Kansas and reside in Kansas. The only fact tying any of the participants to Missouri is the location of the clinic where the insemination was performed.

Under these circumstances, we hold that Kansas law applies and that significant contacts and a significant aggregation of contacts with Kansas make application of our law to the parties claims not only appropriate but also constitutional. This choice is neither arbitrary nor unfair;

neither party would have been justified in expecting Missouri to have a controlling interest as to any dispute between them.

Constitutionality of K.S.A. 381114(f) In his brief, D.H. makes a general allegation that K.S.A. 381114(f) offends the Constitution. **1033 The cases he cites in support discuss both the Equal Protection Clause and the Due Process Clause; we thus presume his challenge relies upon each of these provisions. See U.S. Const. amend. XIV; Kan. Const. Bill of Rights, 2, 18. At oral argument before this court, D.H. conceded that his rights under these provisions do not differ as between the federal and state Constitutions. He also acknowledged that he no longer challenges the statute as unconstitutional on its face; rather, he argues it cannot be constitutionally applied to him, as a known sperm donor who alleges he had an oral agreement with the twins mother that granted him parental rights. The amicus brief filed by the Center further clarifies that the constitutional challenge before us is only to the statute as applied to D.H. In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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The Center insists the statute deprives D.H. of parental rights without due process of law and without a required finding of unfitness. It urges us to dispense with a literal reading of the statutes language, invoking the purported purpose of the Kansas Parentage Act, K.S.A. 311110 et seq., to encourage fathers to acknowledge paternity and child support obligations voluntarily. It also emphasizes that courts should seek a result geared to the best interests of the child, in this case advancing a public policy favoring the right of every child to two parents, regardless of the means of the childs conception.

[11]

[12]

[13]

[14]

[15] *63 As mentioned in summary above, our review of whether a statute is constitutional raises a

question of law reviewable de novo. In re Tax Appeals of CIG Field Services Co., 279 Kan. 857, 86667, 112 P.3d 138 (2005). In addition, *t+he constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the courts duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt. *Citations omitted+. State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005).

Given the relative newness of the medical procedure of artificial insemination, and thus the newness of K.S.A. 381114(f)s attempt to regulate the relationships arising from it, it is not surprising that the issue raised by D.H. is one of first impression, not only in Kansas but nationally. We therefore begin our discussion of the constitutionality of the statute by surveying the landscape of various states laws governing the rights of sperm donors for artificial insemination. This landscape and its ongoing evolution

provide helpful context for our analysis of K.S.A. 381114(f).

The majority of states that have enacted statutes concerning artificial insemination state that the husband of a married woman bears all rights and obligations of paternity as to any child conceived by artificial insemination, whether the sperm used was his own or a donors. See, e.g., Ala.Code 261721(a) (1992) (If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.); see also Cal. Fam.Code 7613(a) (West 2004) (same); Colo.Rev.Stat. 194106(1) (West 2005) (same); Ill. Comp. Stat. ch. 750 40/3(a) (West 1999) (same); Minn. State 257.56 Subd. 1 (2007); Mo.Rev.Stat. 210.824(1) (2000) (same); Mont.Code Ann. 406106(1) (2005); Nev.Rev.Stat. 126.061(1) (2005) (same); N.J. Stat. Ann. 9:1744(a) (2002) (same); N.M. Stat. Ann. 40116(A) (Michie 2006) (same); Ohio Rev.Code Ann. 3111.95(A) (Anderson 2003) (similar); *64 Wis. Stat. 891.40(1) (200506) (same). Further, several of these states statutes provide that a donor of semen used to inseminate a

married woman will not be treated in law as the father of any child conceived, if he is not the womans husband. See, e.g., Ala.Code 261721(b) (1992) (The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donors wife is treated in law as if he were not the natural father of a child thereby conceived.); **1034 Minn.Stat. 257.56 Subd. 2 (2007) (same); Mo.Rev.Stat. 210.824(2) (2000) (same); Mont.Code Ann. 406106(2) (2005) (same); Nev.Rev.Stat. 126.061(2) (2005) (same). One court has observed that these two rules protect the expectations of the married couple, the best interests of the child, and the expectations of the donor. See People v. Sorensen, 68 Cal.2d 280, 28488, 66 Cal.Rptr. 7, 437 P.2d 495 (1968).

The 1973 Uniform Parentage Act, promulgated by the National Conference of Commissioners on Uniform State Laws, 9B U.L.A. 377 (2001), provided the model for many of the state artificial insemination statutes that incorporate these two rules. See, e.g., Cal. Fam.Code 7613; N.M. Stat. Ann. 40116. Section 5 of the original uniform Act provided: (a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is

inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husbands consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husbands consent with the *State Department of Health], where it shall be kept confidential and in a sealed file. However, the physicians failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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woman other than the donors wife is treated in law as if he were not the natural father of a child thereby conceived. (Emphasis added.) Uniform Parentage Act (1973) 5; 9B U.L.A. at 40708.

The wording of this original Act and statutes that imitated it did not address the determination of a sperm donors paternity when *65 an unmarried woman conceived a child through artificial insemination. The earliest case to address this particular question arose in a state that had not yet adopted any statute regarding the effects of the procedure.

In that case, C.M. v. C.C., 152 N.J.Super. 160, 377 A.2d 821 (1977), a sperm donor filed a paternity suit, seeking parental rights to a child born when the childs unmarried mother artificially inseminated herself with the donors sperm. In that case, the mother and the donor had been in a long-standing romantic relationship; the donor testified they were contemplating marriage; the mother wanted a child but did not want to have sexual intercourse before marriage; and the insemination procedure was performed at the mothers home. Three months into the pregnancy, the mother ended her relationship with the donor, and she refused him access to the child after its birth.

The New Jersey court relied upon a common-law presumption of paternity to award visitation rights to the donor as the natural father of the illegitimate child.

Had the mother and the donor been married and conceived the child through artificial insemination, the court said, the donor would have been considered the childs father. Given the evidence that the parties had intended to parent the child together, the court believed the same result should follow, despite the absence of wedding vows. 152 N.J.Super. at 16568, 377 A.2d 821.

Certain states other than New Jersey either anticipated the need for their original statutes to govern the relationship of a sperm donor to the child of an unmarried recipient as well as a married recipient or modified their original uniform Act-patterned statutes to remove the word married from the 5(b) language. This meant these states statutes contained complete bars to paternity for any sperm donor not married to the recipient, regardless of whether the recipient was married to someone else and regardless of whether the donor was known or anonymous. An example of such a provision reads: The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donors **1035 wife is treated in law as if he were not the natural father of a child thereby conceived. See, e.g., Cal. Fam.Code 7613(b) *66 (West 2004); Ill. Comp. Stat. ch. 750 40/3(b) (West 1999); Wis. Stat. 891.40(2)

(200506) (same); see also Colo.Rev.Stat. 194106(2) (West 2005) (substantially similar); Conn. Gen.Stat. 45a775 (2007) (similar); Idaho Code 395405 (2002) (similar); Ohio Rev.Code Ann. 3111.95(B) (Anderson 2003) (same); Va.Code Ann. 20158(A)(3) (2004) (substantially similar).

Four cases interpreting one of these types of statutes covering both married and unmarried recipients and establishing an absolute bar to donor paternity were decided before a 2000 amendment to the uniform Act made it applicable to unmarried as well as married recipients of donor sperm. See Uniform Parentage Act (2000); 9B U.L.A. 295 (West 2001).

The first of the four arose in California in 1986. In that case, Jhordan C. v. Mary K., 179 Cal.App.3d 386, 224 Cal.Rptr. 530 (1986), a donor provided sperm to one of two unmarried women who had decided to raise a child together. California had adopted the language of the 1973 Uniform Act with the exception that it had omitted the word married in the second subsection. Jhordan C., 179 Cal.App.3d at 392, 224 Cal.Rptr. 530 (citing then-existing Cal. Civ.Code 7005 [West 1979], which now appears, substantially unchanged, in Cal. Fam.Code 7613 [West

2004] ). As the court put it: *T+he California Legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support. Subdivision (b) states only one limitation on its application: the semen must be provided to a licensed physician. Otherwise, whether impregnation occurs through artificial insemination or sexual intercourse, there can be a determination of paternity with the rights, duties and obligations such a determination entails. Jhordan C., 179 Cal.App.3d at 392, 224 Cal.Rptr. 530.

Because the parties had no doctor involved in the donation or insemination and thus the sperm was never provided to a licensed physician, the court ruled that the case before it fell outside the statute. It therefore affirmed the lower courts recognition of the donors paternity. Jhordan C., 179 Cal.App.3d at 398, 224 Cal.Rptr. 530. Although the court addressed its rulings impact on the constitutional rights *67 of the two women, it did not address any constitutional implications for the donor.

Jhordan C., 179 Cal.App.3d at 39596, 224 Cal.Rptr. 530.

The second case, In Interest of R.C., 775 P.2d 27 In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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(Colo.1989), arose in Colorado in 1989. In that case, the district court had refused to admit proffered evidence of an agreement that the donor would act as a father based on relevance; it granted the unmarried mothers motion to dismiss the donors paternity suit based on Colorados statute. The Colorado provision, like that in California, applied to both married and unmarried recipients and contained a blanket bar to donor parental rights. See Colo.Rev.Stat. 194106.

The Colorado Supreme Court reversed the district court and remanded for findings of fact. It explicitly rejected the idea that an unmarried recipient lost the protection of the statute merely because she knows the donor. R.C., 775 P.2d at 35. And it did not reach the equal protection and due process challenges raised by the donor. However, it concluded the statute was ambiguous and refused to

apply its absolute bar to paternity because the known donor had produced evidence of an oral agreement that he would be treated as father of the child. R.C., 775 P.2d at 35.

The next case, McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239 (1989), cert. denied 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990), involved an unmarried woman who artificially inseminated herself with a known donors semen. The donor sought recognition of his paternity, and both he and the woman sought summary judgment. The Oregon artificial insemination statute read: **1036 If the donor of semen used in artificial insemination is not the mothers husband: (1) Such donor shall have no right, obligation or interest with respect to a child born as a result of the artificial insemination; and (2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect to the donor. Ore.Rev.Stat. 109.239 (1977).

The donor challenged this statute under equal protection and due process principles. He swore out an affidavit in support of summary judgment and argued he had relied on an agreement with the mother that he would remain

active in the childs life and participate in all important decisions concerning the child. 98 Or.App. at 464, 780 P.2d 239. He sought visitation and said that he was willing *68 and able to accept the same level of responsibility for the support, education, maintenance, and care of the child and for pregnancy-related expenses that he would have had if the child had been born from his marriage to its mother. The district court ruled that the donors paternity claim was barred by the Oregon statute.

The McIntyre court began its analysis by reciting its equal protection standard of review, which was strict scrutiny, a standard more searching than that applied to such claims in Kansas. See generally State v. Limon, 280 Kan. 275, 28387, 122 P.3d 22 (2005) (equal protection challenge based on gender discrimination does not require strict scrutiny, i.e., showing classification necessary to serve compelling state interest; rather, court applies intermediate scrutiny, i.e., classification must substantially further legitimate legislative purpose); see Chiles v. State, 254 Kan. 888, 89193, 869 P.2d 707, cert. denied 513 U.S. 850, 115 S.Ct. 149, 130 L.Ed.2d 88 (1994); Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987). The Oregon court stated: A statute that gives a privilege to women while denying it to men is

inherently suspect and subject to strict scrutiny, unless the classification (1) is based on specific biological differences between men and women and (2) is rationally related to the purposes of the statute. McIntyre, 98 Or.App. at 469, 780 P.2d 239.

Under this standard, the Oregon court ruled that the statute before it drew an acceptable classification of unmarried males and unmarried females ... based on biological differences.... Only a male could contribute the sperm to accomplish conception; only a female could conceive and bear the child. 98 Or.App. at 469470, 780 P.2d 239. Further, the classification was rationally related to the purposes of the statute, which were: (1) to allow married couples to have children, even though the husband was infertile, impotent, or ill; (2) to allow an unmarried woman to conceive and bear a child without sexual intercourse; (3) to resolve potential disputes about parental rights and responsibilities: that is, (a) the mothers husband, if he consents, is father of the child, and (b) an unmarried mother is free from any claims by the donor of parental rights; (4) to encourage men to donate semen by protecting them against any claims by the mother or the child; and (5) to legitimate the child and give it rights against the mothers husband, if he

consented to *69 the insemination. 98 Or.App. at 46768, 470, 780 P.2d 239. Thus the statute did not offend equal protection either on its face or as applied.

The court also rebuffed the donors due process challenge to the statute on its face. 98 Or.App. at 470, 780 P.2d 239. However, the donor also argued that the statute violated due process under the federal and state Constitutions as applied to him, a known donor who had an agreement with the mother to share the rights and responsibilities of parenthood. The court agreed the statute would violate the Due Process Clause of the Fourteenth Amendment as applied to the donor if such an agreement was proved. 98 Or.App. at 47072, 780 P.2d 239.

On this point, the court looked to Lehr v. Robertson, 463 In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), an adoption case. Lehr dealt with the necessity of notice of pending adoption proceedings to an unwed father who had not filed with New Yorks putative father registry and had never established a substantial relationship with the

child. The Court stated: When an unwed father demonstrates a full commitment to the responsibilities of **1037 parenthood by com*ing+ forward to participate in the rearing of his child, *citation omitted+, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.... But the mere existence of a biological link does not merit equivalent constitutional protection. Lehr, 463 U.S. at 261, 103 S.Ct. 2985 (quoted in McIntyre, 98 Or.App. at 470, 780 P.2d 239).

The Lehr Court ultimately held that the States failure to notify the father of adoption proceedings did not deny him due process of law. 463 U.S. at 26465, 103 S.Ct. 2985. No substantive due process right to care, custody, and control of the child had vested in a man who could demonstrate nothing more than a biological link to his offspring. 463 U.S. at 25862, 103 S.Ct. 2985. The Lehr Court noted, however, that an unwed father who demonstrated a full commitment to the responsibilities of parenthood could not be absolutely barred from asserting his parental rights without a violation of due process. 463 U.S. at 261, 103 S.Ct. 2985.

The McIntyre court reasoned that the Due Process Clause should afford no less protection to a sperm donor who had facilitated artificial insemination than an unwed father, provided that *the sperm donor+ could prove the facts in his summary judgment affidavit that tended to support the existence of an agreement with *70 the mother and his reliance upon it. Because the court concluded the constitutionality of the Oregon statute as applied to this donor would turn on whether he was given an opportunity to establish those facts, summary judgment in favor of the mother was reversed. 98 Or.App. at 472, 780 P.2d 239.

The last of the four cases, C.O. v. W.S., 64 Ohio Misc.2d 9, 639 N.E.2d 523 (1994), also concluded, as the McIntyre court did, that a statute purporting to be an absolute bar to paternity of sperm donors, while constitutional in the absence of an agreement to the contrary, could be unconstitutional as applied when the donor can establish that an agreement to share parenting existed between him and the unmarried woman who was the recipient of the sperm. 64 Ohio Misc.2d at 12, 639 N.E.2d 523.

In C.O., the Ohio statute at issue stated: If a woman is the subject of a non-spousal artificial insemination, a

donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor. See Ohio Rev.Code Ann. 3111.95 (Anderson 2003). The statute also required artificial insemination to be conducted under the supervision of a physician. 64 Ohio Misc.2d at 1011, 639 N.E.2d 523. As in Jhordan C., an unmarried woman had inseminated herself with a known donors sperm. Although the court ultimately determined the statute was inapplicable because the mother had failed to comply with the physician involvement requirement, it further opined that the statute would violate due process if applied to the donor, because he and the mother, at the time of the procedure, had agreed there would be a relationship between the donor and the child. 64 Ohio Misc.2d at 12, 639 N.E.2d 523.

Since the Uniform Act was amended in 2000 to state simply, A donor is not a parent of a child conceived by means of assisted reproduction, two of our sister states have decided three additional cases addressing statutes with identical or substantively indistinguishable provisions governing sperm donors and unmarried recipients. Steven S. v. Deborah D., 127 Cal.App.4th 319,

25 Cal.Rptr.3d 482 (2005); In re H.C.S., 219 S.W.3d 33 (Tex.App.2006); In re Sullivan, 157 S.W.3d 911 (Tex.App.2005).

*71 Two of these cases come from Texas. They do not add much to the legal landscape with which we are concerned in this appeal because their outcomes were driven by standing, not an issue before us. See H.C.S., 219 S.W.3d 33 (known donor lacked standing to pursue parentage adjudication; child conceived through assisted reproduction by unmarried donors sisters same-sex partner using donors sperm); Sullivan, 157 S.W.3d 911 (known donor had standing to maintain paternity action; parties had signed preinsemination agreement stating donor would be treated as if he, mother were married).

**1038 The third case, Steven S., 127 Cal.App.4th 319, 25 Cal.Rptr.3d 482, from California, involved an unmarried woman and a known sperm donor who tried artificial insemination; when that resulted in a miscarriage, they attempted to conceive through sexual intercourse, also without success. Finally, a second artificial insemination attempt resulted in conception. The donor initially was very involved with the pregnancy and the child, and he filed a paternity action when the child

was 3 years old.

The district court noted that Californias statute presented In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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a bar to paternity for unmarried sperm donors, but ruled in favor of the donor based on equitable estoppel. The donor was known; he had engaged in sexual intercourse with the unwed mother; and she had acknowledged him as the childs father and had allowed him to participate in the pregnancy and celebrate the birth of the child. The California Court of Appeals reversed, holding that the words of *Cal. Fam.Code+ section 7613, subdivision (b) are clear and that, under such facts, *t+here can be no paternity claim because of the statutes absolute bar. Steven S., 127 Cal.App.4th at 326, 25 Cal.Rptr.3d 482.

None of these three decisions raised or reached the equal protection or due process challenges raised by the donor here.

Where does our Kansas statute fit into this landscape and its ongoing evolution?

In 1985, Kansas became one of the states that adopted portions of the Uniform Parentage Act of 1973 regarding presumptions of paternity, but it did not adopt any provision relating to artificial insemination. See L.1985, ch. 114, sec. 5 (H.B.2012).

*72 In 1994, Kansas amended its statute to incorporate the 1973 Uniform Acts 5(b) as K.S.A. 381114(f). See L.1994, ch. 292, sec. 5 (Subst. H.B. 2583). It did not differentiate between known and unknown or anonymous donors, but it did make two notable changes in the uniform language.

As discussed above, although the 1973 Uniform Act governed the paternity of children born only to married women as a result of artificial insemination with donor sperm, the version adopted by Kansas omitted the word married. See K.S.A. 381114(f). This drafting decision demonstrates the legislatures intent that the bar to donor paternity apply regardless of whether the recipient was married or unmarried.

The other alteration in the 1973 Uniform Acts language is directly at issue here. The Kansas Legislature provided

that a sperm donor and recipient could choose to opt out of the donor paternity bar by written agreement. See K.S.A. 381114(f). The legislative record contains no explanation for this deviation from the 1973 Uniform Acts language. See Minutes of the House Judiciary Committee, January 19, 1994, and February 25, 1994.

This second drafting decision is critical and sets this case apart from all precedent. Our statutes allowance for a written agreement to grant a sperm donor parental rights and responsibilities means that, although we may concur with the McIntyre and C.O. courts in their constitutional analyses of absolute-bar statutes, we need not arrive at the same result. K.S.A. 381114(f) includes exactly the sort of escape clause the Oregon and Ohio courts found lackingand unconstitutionalin their statutes.

Ultimately, in view of the requirement that we accept as true D.H.s evidence supporting existence of an oral agreement, we are faced with a very precise question: Does our statutes requirement that any opt-out agreement between an unmarried mother and a known sperm donor be in writing result in an equal protection or due process violation? Although several other states have adopted statutes like K.S.A. 381114(f), including

language permitting an unmarried woman and a sperm donor to avoid the statutory bar and provide for the paternity of the donor through an agreement in writingsee Ark.Code Ann. 910201 (2002); *73 Fla. Stat. 742.14 (2005); N.H.Rev.Stat. Ann. 168B:3(I)(e) (2002); N.J. Stat. Ann. 9:1744(b) (2002); N.M. Stat Ann. 40116(B) (2006)none of the courts of these states has yet subjected such a statute to a constitutional crucible. We do so now, as K.S.A. 381114(f) is applied to D.H.

**1039 Equal Protection [16] K.S.A. 381114(f) draws a gender-based line between a necessarily female sperm recipient and a necessarily male sperm donor for an artificial insemination. By operation of the statute, the female is a potential parent or actual parent under all circumstances; by operation of the same statute, the male will never be a potential parent or actual parent unless there is a written agreement to that effect with the female. As discussed with counsel for the parties at oral argument before this court, the males ability to insist on father status effectively disappears once he donates sperm. Until that point, he can

unilaterally refuse to participate unless a written agreement on his terms exists. After donation, the male cannot force the fatherhood issue. The female can unilaterally decide if and when to use the donation for artificial insemination and can unilaterally deny any wish of the male for parental rights by refusing to enter into a written agreement.

[17]

[18]

[19] The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In Kansas, as before the United States Supreme Court, statutory gender classifications such as this classification in K.S.A. 381114(f) are subject to In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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intermediate, or heightened, scrutiny. Limon, 280 Kan. at 28387, 122 P.3d 22; Chiles, 254 Kan. at 89193, 869 P.2d 707; Farley, 241 Kan. at 669, 740 P.2d 1058; see Reed v. Reed, 404 U.S. 71, 7677, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). In order to pass muster under the federal and state equal protection provisions, a classification that treats otherwise similarly situated individuals differently based solely on the individuals genders must substantially further a legitimate legislative purpose; the governments objective must be important, and the classification substantially related to achievement of it. Nevada *74 Dept. of Human Resources v. Hibbs, 538 U.S. 721, 729, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996); Farley, 241 Kan. at 669, 740 P.2d 1058.

Given the biological differences between females and males and the immutable role those differences play in conceiving and bearing a child, regardless of whether conception is achieved through sexual intercourse or artificial insemination, we are skeptical that S.H. and D.H. are truly similarly situated. However, assuming for purposes of argument that they are, we perceive several legitimate legislative purposes or important governmental

objectives underlying K.S.A. 381114(f).

As the McIntyre Court observed about the Oregon statute, K.S.A. 381114(f) envisions that both married and unmarried women may become parents without engaging in sexual intercourse, either because of personal choice or because a husband or partner is infertile, impotent, or ill. It encourages men who are able and willing to donate sperm to such women by protecting the men from later unwanted claims for support from the mothers or the children. It protects women recipients as well, preventing potential claims of donors to parental rights and responsibilities, in the absence of an agreement. Its requirement that any such agreement be in writing enhances predictability, clarity, and enforceability. Although the timing of entry into a written agreement is not set out explicitly, the design of the statute implicitly encourages early resolution of the elemental question of whether a donor will have parental rights. Effectively, the parties must decide whether they will enter into a written agreement before any donation is made, while there is still balanced bargaining power on both sides of the parenting equation.

In our view, the statutes gender classification

substantially furthers and is thus substantially related to these legitimate legislative purposes and important governmental objectives. K.S.A. 381114(f) establishes the clear default positions of parties to artificial insemination. If these parties desire an arrangement different from the statutory norm, they are free to provide for it, as long as they do so in writing. Encouraging careful consideration of entry into *75 parenthood is admirable. Avoidance of the limbo in which D.H. finds himself is a worthy legislative **1040 goal. We therefore hold that the application of K.S.A. 381114(f) to D.H. does not violate equal protection.

Due Process [20] Neither D.H. nor the Center explicitly addresses whether the due process challenge to K.S.A. 381114(f) in this case is based on procedural due process principles or substantive due process doctrine. Nor did the Oregon or Ohio courts that decided McIntyre and C.O. draw this distinction or comment upon it. See 98 Or.App. at 47172, 780 P.2d 239;, 64 Ohio Misc.2d at 12, 639 N.E.2d 523. To the extent D.H.s due process argument is couched in procedural language, i.e., that K.S.A.

381114(f)s requirement of a writing, strictly interpreted, denies him a meaningful opportunity to be heard on the claim that there was, in fact, an oral agreement, we simply disagree. Indeed, for purposes of ruling on the propriety of the district judges summary disposition in favor of S.H., we accept D.H.s evidence that there was an oral agreement. Still, he has been denied no procedural right to which he was entitled; the statute merely sets up a burden of proof that his own inaction before donating his sperm left him unable to meet.

D.H.s ignorance of the statutes requirement of a writing to record any agreement between him and S.H. as to his parental rights does not necessitate a ruling that the statute cannot be constitutionally applied to him. See Jhordan C. v. Mary K., 179 Cal.App.3d 386, 389, 224 Cal.Rptr. 530 (1986) (court analyzes applicability of artificial insemination statute despite parties ignorance of it); see also Lehr v. Robertson, 463 U.S. 248, 264, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (failure to file with putative father registry out of ignorance of law insufficient reason to criticize law itself); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of the law is no excuse). It is apparent to us that the only potentially meritorious due process argument before us

focuses on the assertion of D.H.s fundamental right to care, custody, and control of his children. This raises a substantive due process concern, rather than a problem over the absence of a *76 specific procedural protection. Indeed, if anything, D.H. and the Center advocate for less rather than more formality in process; they regard the requirement of a writing to memorialize any agreement between a sperm donor and a recipient as so heavy a procedural burden that it tips the constitutional scales in In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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favor of D.H. here.

In addition to relying on McIntyre and C.O., which, as previously discussed, addressed complete-bar statutes unlike our own, D.H. and the Center emphasize the United States Supreme Courts decision in Lehr. See 463 U.S. at 261, 103 S.Ct. 2985. Lehrs facts limit its utility here. As mentioned above, that case involved an unwed biological father petitioning to set aside an order of adoption based on his failure to be notified of the adoption proceedings. A New York statute guaranteed protection of any interest such a putative father could

have in assuming a responsible role in the future of his child: The father in Lehr had failed to avail himself of this protection and had taken no other action that would have established a protectable interest in the child. While a state may not absolutely bar a biological parent from asserting parental rightsthe proposition for which D.H. and the Center cite LehrKansas has not done so. Even a sperm donor with no relationship to a childs mother can forge and protect his parental rights by insisting on a written agreement.

D.H. and the Center argue that D.H.s other efforts to assert his entitlement to and intention to exercise parental rightsstymied, they say, by S.H.should be enough. S.H., of course, casts D.H.s behavior in a considerably less favorable light. Again, however, for purposes of review of the district judges summary deposition in S.H.s favor, we accept D.H.s version of events. The infirmity in his substantive due process argument does not lie in those factual allegations for which he has provided evidence in the record, including his allegation of an oral agreement; the infirmity lies in the absence of any proof of an agreement with S.H. in writing.

We simply are not persuaded that the requirement of a

writing transforms what is an otherwise constitutional statute into one **1041 that violates D.H.s substantive due process rights. Although we agree with the Center that one goal of the Kansas Parentage Act as a *77 whole is to encourage fathers to voluntarily acknowledge paternity and child support obligations, the obvious impact of the plain language of this particular provision in the Act is to prevent the creation of parental status where it is not desired or expected. To a certain extent, D.H. and the Center evidently misunderstand the statutes mechanism. It ensures no attachment of parental rights to sperm donors in the absence of a written agreement to the contrary; it does not cut off rights that have already arisen and attached.

We are confident this legislative design realizes the expectation of unknown or anonymous sperm donors, whether their motive for participation in artificial insemination is altruistic or financial. To the extent it does not realize the expectation of a known sperm donor, the statute tells him exactly how to opt out, how to become and remain a father. If, as the Center argues, genetic relationship must be destiny, then an anonymous donor with no intention to be a father would nevertheless automatically become one. It is evident to us the

legislature chose an alternate arrangement. Neither D.H. nor the Center has convinced us there is a constitutional mandate for this court to make an independent policy choice.

[21]

[22] We also reject the argument from D.H. and the Center that the statute inevitably makes the female the sole arbiter of whether a male can be a father to a child his sperm helps to conceive. This may be true, as we discussed above, once a donation is made, a recipient who becomes pregnant through artificial insemination using that donation can refuse to enter into an agreement to provide for donor paternity. This does not make the requirement of written agreement unconstitutional. Indeed, it is consistent with United States Supreme Court precedent making even a married pregnant woman the sole arbiter, regardless of her husbands wishes, of whether she continues a pregnancy to term. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 6971, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). As discussed above, before a donation is made, a prospective donor has complete autonomy to refuse to facilitate an artificial

insemination unless he gets an agreement in writing to his paternity terms. This is more than most fathers, wed or unwed to their childrens mothers, can ever hope for. See Note and Comment, A Tale of Three Women: A Survey of the Rights *78 and Responsibilities of Unmarried Women Who Conceive by Alternative Insemination And A Model for Legislative Reform, 19 Am. J.L. & Med. 285, 304 (1993) (absence of executed writing evidence donor failed to, in words of Lehr, grasp opportunity to parent; chance to condition donation upon execution of agreement puts donor in control). The requirement that a sperm donors and recipients agreement be in writing does not violate D.H.s due process rights.

All of this being said, we cannot close our discussion of the constitutionality of K.S.A. 381114(f) without observing that all that is constitutional is not necessarily wise. We are mindful of, and moved by, the Centers advocacy for public policy to maximize the chance of the availability of two parentsand two parents resourcesto Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries. In particular, Britain and The Netherlands now ban anonymous sperm In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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donations, near-perfect analogs to donations from known donors who will have no role beyond facilitating artificial insemination. These shifts formally recognize the understandable desires of at least some children conceived through artificial insemination to know the males from whom they have received half of their genes. The Human Fertilization and Embryology Authority Act of 1990, as amended by Disclosure of Donor Information, Regulations 2004 No. 1511 (requiring, effective April 2005, British donors identities to be made available to donor-conceived children when children become 18); Netherlands Embryos Bill, Article 3 Dutch Ministry of Health, Welfare, and Sport (2004) www.minvws.nl/en (effective June 2004, child born using donated sperm have right to obtain information about biological father at age 16). As one such child recently wrote, **1042 *t+hose of us created with donated sperm wont stay bubbly babies forever. Were all going to grow into adults, and form opinions about the decision to bring us into the world in a way that deprives us

of the basic right to know where we came from, what our history is and who both our parents are. Clark, My Father was an Anonymous Sperm Donor, The Washington Post, December 17, 2006, at B01 (also currently available *79 at http://www.washingtonpost. com/wp-dyn/ content/article/2006/12/15/AR2006121501820.html). We sympathize. However, weighing of the interests of all involved in these procedures as well as the public policies that are furthered by favoring one or another in certain circumstances, is the charge of the Kansas Legislature, not of this court.

Provided to a Licensed Physician [23] D.H.s next argument on appeal is that the district judge erred in applying K.S.A. 381114(f) to him because his sperm was not provided to a licensed physician, as required by the statute. Instead, it was provided to S.H., who, in turn, provided it to the medical personnel who performed the insemination.

D.H. opens this argument by citing a Kansas Court of

Appeals case involving a petition to terminate the rights of a putative father for the proposition that *s+tatutes pertaining to adoption, relinquishment, or termination of parental rights are strictly construed as they affect a parents liberty interest in the custody and control of his or her children. In re J.A.C., 22 Kan.App.2d 96, Syl. 3, 911 P.2d 825 (1996). This case has no influence on our de novo standard of review here. As discussed at length with regard to the constitutionality of K.S.A. 381114(f), absent a written agreement to the contrary, D.H. is not a putative father. He is a sperm donor only. His link to the twins is purely, and solely, biological. It does not give rise to a constitutionally protected right. See Lehr, 463 U.S. at 261, 103 S.Ct. 2985.

[24]

[25]

[26] When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not

read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statutes language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislatures intent. See CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of *80 Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002); State v. Robinson, 281 Kan. 538, 53940, 132 P.3d 934 (2006).

Again, K.S.A 381114(f) states in pertinent part: The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donors wife is treated in law as if he were not the birth father of a child.... D.H.s argument focuses on the phrase provided to licensed physician, essentially reading it to say directly and personally provided to a licensed physician or provided to a licensed physician by the donor. This argument lacks merit.

The language of the statute is clear and unambiguous, and we will not add to it, as D.H. suggests. The words the donor form the subject of the predicate is treated as if he were not the birth father. The lengthy dependent

clause provided to a licensed physician for use in artificial insemination of a woman other than the donors wife modifies semen. K.S.A. 381114(f) does not require the donor himself to provide his sperm to the physician performing the insemination. It requires only that the donors sperm be provided to the physician by an unspecified someone or something. The fact that S.H. was that someone here did not prevent application of the statute to this situation.

Unless Agreed to in Writing In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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[27] Assuming arguendo the constitutionality and applicability of K.S.A. 381114(f), D.H. next argues that the statutes requirement of a written agreement should be **1043 deemed satisfied by the CINC petition filed by S.H. or by the CINC petition and his paternity petition, read together. He asserts that the statute sets forth no requirement that a written agreement be entered into at or before the time of the insemination and points out that the

CINC petition referred to him 56 times as the twins father. S.H. argues that there was no meeting of the minds between her and D.H. regarding coparenting and that the pleadings evidence none.

There is no technical definition of agreed to or writing in the Kansas Parentage Act of which K.S.A. 381114(f) is a part. Although these words or forms of them are defined elsewhere in Kansas statutes, see, e.g., K.S.A.2006 Supp. 841201(3) (defining *81 agreement as used in Kansas version of Uniform Commercial Code); K.S.A.2006 Supp. 841201(46) (defining written, writing as used in same), these definitions, by their terms, are inapplicable. We therefore give these words as used in K.S.A. 381114(f) the meaning accorded them in everyday English. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).

When we do so, there can be no doubt that the pleadings filed by the parties are in writing. However, interpreting them separately or together to prove the parties agreed to D.H.s status as a father would require Lewis Carrolls looking glass. The absence of such an agreement necessitated the drafting and filing of the pleadings in the

first place. Their existence and substance do not memorialize accord, rather, its opposite. A CINC petition to terminate D.H.s parental rights under K.S.A. 381531 may have been an odd procedural vehicle for effecting S.H.s desirea court order stating that D.H. never acquired any parental rights under K.S.A. 381114(f). A declaratory judgment action might have been better suited to her legal position. But she and her counsel were in uncharted waters. We will not hold that the pleadings constitute a written agreement by operation of law.

Parental Rights Under K.S.A. 381114(a)(4) [28] In the final paragraphs of his brief on appeal, D.H. argues that this case should be controlled by K.S.A. 381114(a)(4) rather than K.S.A. 381114(f). K.S.A. 381114(a)(4) provides: (a) A man is presumed to be the father of a child if: .... (4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made [by amendment of birth certificate] in accordance with K.S.A. 381130 or [filing of birth certificate under K.S.A.] 652409a, and

amendments thereto.

In his brief before the district court, D.H. attempted to reserve the right to make claims based on ratification, estoppel, and common law, but this specific contention under K.S.A. 381114(a)(4) was never raised below. Nevertheless, given the status of this case as one of first impression and the potential for denial of fundamental *82 rights, see In re M.M.L., 258 Kan. 254, 261, 900 P.2d 813 (1995), we address its merit.

[29]

[30] A specific statute controls over a general statute. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 311, 955 P.2d 1136 (1998). Likewise, a specific provision within a statute controls over a more general provision within the statute. K.S.A. 381114(f) is far more specific to cases involving artificial insemination by a sperm donor such as D.H. than the general presumption of paternity set out in K.S.A. 381114(a)(4). D.H.s claim under K.S.A. 381114(a)(4) is without merit.

Equity [31] For the first time in his appellate reply brief, D.H. asserts that the district court must be reversed because S.H. has unclean hands. In essence, he argues that he, a nonlawyer, was tricked by lawyer S.H., who failed to inform him of the statute and failed to explain how the absence of independent legal advice or a written agreement could affect his legal rights. He asserts that he asked S.H. about whether he needed a lawyer or whether they should put their arrangement in writing and was told neither was necessary. This behavior, he alleges, **1044 may have constituted a violation of S.H.s ethical duties as a licensed lawyer.

Despite D.H.s attempt in his district court brief to reserve the right to make claims based on ratification, estoppel, and common law, this invocation of equity was never further preserved for review by pursuit in the district court or by inclusion in his opening appellate brief. See McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005) (issue not briefed by appellant deemed waived, abandoned); Titterington v. Brooke Insurance, 277 Kan. 888, Syl. 3, 89 P.3d 643 (2004)

(*a+ point raised only incidentally in a partys brief but In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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not argued in the brief is deemed abandoned); Board of Lincoln County Commrs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003) (issue not raised in district court not preserved for appellate court). Even if we would nonetheless be inclined to reach its merit, given the posture of the case and the fundamental nature of the rights in play, we also are prevented from doing so by an inadequate appellate record of the underlying *83 facts. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003) (duty of party to furnish appellate record sufficient to enable review of issue). D.H. never proffered evidence to support his assertions of nefarious conduct by S.H. The evidence he presented to the district court focused only on the existence of an oral agreement and his efforts at support; even assuming all of this evidence to be true, it is insufficient under what we have held is a constitutional statute.

Generally speaking, mere ignorance of the law is no excuse for failing to abide by it. State ex rel. Murray v.

Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). There may be a case in the future in which a donor can prove that the existence of K.S.A. 381114(f) was concealed, or that he was fraudulently induced not to obtain independent legal advice or not to enter into a written agreement to ensure creation and preservation of his parental rights to a child conceived through artificial insemination. This is not such a case.

Affirmed.

ALLEGRUCCI, NUSS, LUCKERT, and ROSEN, JJ, not participating. LOCKETT, J., Retired, CAPLINGER and HILL, JJ, assigned.1

McFARLAND, C.J., concurring:

I agree with the majoritys conclusion that K.S.A. 381114(f) is constitutionally permissible and operates to bar D.H. from asserting parental rights relative to the twins K.M.H. and K.C.H.

I think it is helpful to consider subsection (f) in context with other provisions of K.S.A. 381114. The statute is

lengthy and states the presumptions of paternity in various factual situations. Illustrative thereof is the following excerpt: (a) A man is presumed to be the father of a child if: *84 (1) The man and the childs mother are, or have been, married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce. (2) Before the childs birth, the man and the childs mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and: (A) If the attempted marriage is voidable, the child is born during the attempted marriage or within 300 days after its termination by death or by the filing of a journal entry of a decree of annulment or divorce; or (B) if the attempted marriage is void, the child is born within 300 days after the termination of cohabitation. **1045 (3) After the childs birth, the man and the childs mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance

with law, although the attempted marriage is void or voidable and: (A) The man has acknowledged paternity of the child in writing; (B) with the mans consent, the man is named as the childs father on the childs birth certificate; or (C) the man is obligated to support the child under a written voluntary promise or by a court order. (4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 381130 or 652409a, and amendments thereto. (5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child. K.S.A. 381114(a).

The statute further provides: (b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence. In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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.... (e) If a presumption arises under this section, the presumption shall be sufficient basis for entry of an order requiring the man to support the child without further paternity proceedings. K.S.A. 381114(b), (e).

The bulk of the statute is concerned with establishing presumptions as to the paternity of a child. These are presumptions that may be rebutted. Subsection (f) is the final provision of that statute and is in stark contrast to the rest of the statute. No presumption is involved therein. Subsection (f) states: *85 (f) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donors wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. K.S.A. 381114(f).

The biological father of a child conceived under the circumstance described therein is to be treated in law as not being the birth father, absent an agreement in writing.

To come under the statute, an unmarried woman must desire to be impregnated by artificial insemination in a procedure by a licensed physician. She could elect to have an anonymous donor from a sperm bank. The statute would bar the donor from the rights of parentage even if his identity were later determined. If the woman elects to ask an acquaintance to be the donor and he agrees, he has no parentage rights unless the parties agree thereto in writing. If the parties agree in writing, the donor is assuming not only the privileges associated with parenthood but the possible financial burden of child support for 18 years or so. The man might feel flattered to be asked to be the donor and even be assured no child support would ever be sought. Without the statute, the donor would likely have no defense to child support claims asserted by the mother or the child.

Under the statute, absent an agreement in writing, the prospective mother would truly become a single parent upon a successful pregnancy, having assumed all parental privileges, duties, and obligations to any child born as a result of the artificial insemination. If the donor she sought out wants to assume parental privileges and responsibilities, and the prospective mother does not want

this and will not agree, the would-be donor can say no deal and walk away. There is no child and no issue as to future rights and/or duties of the would-be donor. The prospective mother can seek out a sperm bank, another artificial insemination donor, proceed in some other manner outside the subsection, or abandon the idea of pregnancy. The subsection (f) provision appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies.

**1046 *86 Further, as the majority notes, it is not ruling out the possibility that some future factual situation might result in the statutory bar being held inapplicable under those specific facts.

CAPLINGER, J., dissenting:

I respectfully disagree with the majoritys analysis of the constitutionality of K.S.A. 381114(f) as applied to D.H. I would hold the statute unconstitutional as applied to D.H. for the reason that it violates his fundamental right to parent his children without due process of law.

In reaching its conclusion that K.S.A. 381114(f)

comports with due process, the majority analyzes at least two extra-jurisdictional cases which hold that statutes creating an absolute bar to donor paternity violate due process rights as applied to a known donor: McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239 (1989), cert. denied 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990). (Oregon statutes absolute bar to paternity violated due process as applied to known sperm donor if donor could establish on remand that he and childs mother agreed that donor would be the natural father of the child); and C.O. v. W.S., 64 Ohio Misc.2d 9, 639 N.E.2d 523 (1994) (Ohio statutes absolute bar to paternity of known donor violated due process as applied to donor where mother solicited participation of donor and agreed that known donor would have relationship with child).

Significantly, the majority concurs with the McIntyre and C.O. courts in their constitutional analyses of absolute bar statutes. Op. at 34. Nevertheless, the majority concludes it need not arrive at the same result because K.S.A. 381114(f) provides exactly the sort of escape clause the Oregon and Ohio courts found lackingand unconstitutionalin their statutes. Op. at 34.

I agree with the majoritys conclusion that absolute bar statutes like those at issue in McIntyre and C.O. violate due process. I do not agree, however, that the K.S.A. 381114(f) provision permitting a donor to opt out of the statutes paternity bar saved the statutes constitutionality under the facts of this case.

The statutory provision at issue here bears repetition at this juncture. K.S.A. 381114(f) provides: In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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The donor of semen provided to a licenced physician for use in artificial insemination of a woman other than the donors wife is treated in law as if he were *87 not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. (Emphasis added.)

Before discussing the specific basis for my disagreement with the majoritys conclusion that the italicized proviso renders the statute constitutional as applied to D.H., I would first note that neither the McIntyre court nor the C.O. court found, as the majority suggests, that their

respective state statutes were unconstitutional because they lacked an escape clause providing for a written agreement between the parties.

The court in McIntyre found the applicable statute problematic because it barred the petitioner from the rights and responsibilities of fatherhood even if respondent had agreed with [the donor that he would have parental rights] before he gave her his semen in reliance on that agreement. 98 Or.App. at 468, 780 P.2d 239. The court noted the statute contained no qualifying language and, in a footnote, compared a Washington state statute which contained a written opt-out provision similar to that found in K.S.A. 381114(f). 98 Or.App. at 468 n. 2, 780 P.2d 239; see also In Interest of R.C., 775 P.2d 27, 33 n. 7 (Colo.1989) (recognizing in footnote that *a+ growing number of legislatures have sought to clear up this confusion by enacting laws that extinguish parental rights of semen donors unless the donor acknowledges his paternity in writing). The court in McIntyre, however, did not determine whether the addition of an opt-out provision like that at issue here would have resolved its due process concerns.

Moreover, while the court in C.O. did point out that a

statute that absolutely extinguishes a fathers efforts to assert the rights and responsibilities of being a father ... runs contrary to due process standards, it did not compare any statutes containing a written opt-out provision. Further, it found its own statute lacking because it did not take into **1047 account the parties oral agreement that the donor would have a relationship with any child conceived of the insemination. 64 Ohio Misc.2d at 12, 639 N.E.2d 523. The court in C.O. did not, as the majority suggests, indicate that a written opt-out agreement would have ameliorated the courts due process concerns.

In fact, the expansive rationale in C.O. suggests otherwise: *88 Public policy supports the concept of legitimacy, and the concomitant rights of a child to support and inheritance. *Citation omitted.+ A fathers voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action. 64 Ohio Misc.2d at 12, 639 N.E.2d 523.

Thus, while the courts in C.O. and McIntyre suggested that it was their respective statutes absolute bar that ran afoul of due process safeguards, neither court held that a

requirement permitting the parties to opt out of the statute, so long as the agreement was memorialized in writing, would satisfy due process safeguards. As the majority recognizes, no court has considered the specific issue facing this court.

For the reasons discussed below, I would find that K.S.A. 381114(f)s inclusion of a written opt-out provision does not save it from the same fate as the statutes considered by the courts in McIntyre and C.O.i.e., it is unconstitutional because it violates due process as applied to the donor.

Requirement that donor take affirmative action to protect his parental rights In concluding that the opt-out provision in K.S.A. 381114(f) satisfies due process requirements, the majority states that D.H.s own inaction before donating his sperm left him unable to meet the statutes requirements of a written agreement. Op. at 38. (Emphasis added.) Therein lies the constitutional problem with the statute. Fundamental rights must be actively waived, rather than passively lost due to inaction.

Initially, before analyzing this issue, I would note that the terminology employed by the majority, i.e., that D.H. failed to opt out of the statute, is a misnomer. In effect, the statute requires a known sperm donor, regardless of any agreement or understanding the donor may have as to his role in parenting a child conceived from his sperm, to opt in to parenthood or forever waive his right to parent. As discussed below, under the circumstances of this case, the statutes requirement that D.H. take affirmative action to preserve his fundamental right to parent, or to opt in to parenting, violates fundamental principles of due process.

*89 Pursuant to the Fourteenth Amendment to the United States Constitution, no State shall deprive any person of life, liberty, or property, without the due process of law. The Supreme Court has held that the Fourteenth Amendment guarantees more than fair process and includes a substantive component that provides heightened protection against government interference In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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with certain fundamental rights and liberty interests.

*Citation omitted.+ Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). It is well established that the right to parent is a fundamental right protected by the United States Constitution. See, e.g., Troxel, 530 U.S. at 6566, 120 S.Ct. 2054; Stanley v. Illinois, 405 U.S. 645, 65152, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

The Supreme Court has further consistently held that courts must indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege and thus must result from a free and conscious choice. 304 U.S. at 464, 58 S.Ct. 1019. And, when faced with a waiver of a fundamental right, courts do not presume acquiescence in the loss of fundamental rights. 304 U.S. at 464, 58 S.Ct. 1019; see also Hodges v. Easton, 106 U.S. (16 Otto) 408, 412, 1 S.Ct. 307, 27 L.Ed. 169 (1882) (right to trial by jury in a civil case is a fundamental right and every reasonable presumption must be indulged against its waiver).

The majority recognizes that K.S.A. 381114(f) permits a

donor to waive his right to parent simply by his own inaction rather **1048 than through an intentional act relinquishing that right. For this reason, I would find the statutes escape clause does not satisfy due process requirements.

Effect of ignorance of the law on an individuals fundamental right to parent Nor can I agree with the majoritys conclusion that D.H.s ignorance of the statutes writing requirement has no effect on the statutes application. Op. at 38. In support of this determination, the majority essentially reiterates the often-stated principle that ignorance of the law is no excuse, and cites three cases in *90 support of its application of this principle to the facts here: Lehr v. Robertson, 463 U.S. 248, 264, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Jhordan C. v. Mary K., 179 Cal.App.3d 386, 389, 224 Cal.Rptr. 530 (1986); and State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). However, none of these cases hold that an individual can relinquish a fundamental right simply through ignorance of the law.

As the majority notes, the Kansas Supreme Court held in

Murray, 231 Kan. at 536, 646 P.2d 1091, that *i+gnorance of the law is no excuse. Further, the court referred to the impressive body of authority and the ancient maxim supporting this statement. 231 Kan. at 536, 646 P.2d 1091. However, the question before the court in Murray was not whether an individual may waive a fundamental right by ignorance of a law requiring affirmative action to protect that right. Rather, the question in Murray was whether the meetings conducted by the board of trustees of a county hospital were covered by the Kansas Open Meetings Act, in light of the board members claim that any violation of the Act was in good faith because they had been advised by the county attorney that their meetings were not covered by the Act. I simply cannot equate such ignorance, and the effect of such ignorance, with a fathers preconception waiver of his right to parent a child because of his ignorance of a statute requiring him to opt in to parenting.

Jhordan C., 179 Cal.App.3d 386, 224 Cal.Rptr. 530, also cited by the majority, is unpersuasive for the obvious reason that it is not precedential authority. More importantly, while the majority cites Jhordan C. in support of its statement that D.H.s ignorance of our Kansas statute does not preclude its application here, the

court in Jhordan made no determination whatsoever as to whether a donors ignorance of a California statute would suffice to waive his fundamental right to parent. Instead, the Jhordan C. court merely noted in reciting the factual background that the parties were completely unaware of the existence of the statute. 179 Cal.App.3d at 389, 224 Cal.Rptr. 530. Moreover, the court in Jhordan C. ultimately concluded Californias statute could not bar the donors rights because the donors sperm had not been provided to a licensed physician. 179 Cal.App.3d at 39798, 224 Cal.Rptr. 530.

*91 The third case cited by the majority in support of its conclusion that the donors ignorance of the law is no excuse, is Lehr, 463 U.S. at 264, 103 S.Ct. 2985. There, the United States Supreme Court considered whether a biological father should receive notice of adoption when that father never established a relationship with his child and further failed to comply with a New York law requiring him to file notice with a putative father registry. The Court recognized that familial relationships are an interest in liberty entitled to constitutional protection and state statutes that take away this right must comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 463 U.S. at 258, 103 S.Ct.

2985.

As the majority points out, the Lehr Court held that the putative fathers ignorance of the requirement that he must mail a postcard to the putative father registry to guarantee his right to receive notice of the adoption In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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proceedings of his daughter, was not a sufficient reason to criticize the law itself. 463 U.S. at 264, 103 S.Ct. 2985.

However, the majoritys focus on this aspect of the Lehr decision is misplaced in light of Lehrs recognition and characterization of a fathers fundamental rights to parent.

The Lehr Court noted it was not concerned with whether the father had a significant **1049 relationship with his biological daughter but, instead, was focused on whether New York protected his opportunity as a father to form that relationship. 463 U.S. at 262, 103 S.Ct. 2985. The Court examined New Yorks putative father registry and found that because the biological father retained the

control to receive notice of adoption proceedings, the Due Process Clause was not violated. 463 U.S. at 264, 103 S.Ct. 2985.

In so ruling, the Court noted that the impetus for New Yorks putative father registry was the holding in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, where the Supreme Court struck down a statute that automatically classified any man who fathered a child out of wedlock as an unfit parent. The Court in Lehr further noted that a special committee charged by the New York Legislature with forming the law after Stanley was supposed to accommodate both the interests of the biological fathers in their children and the childrens interests in prompt and certain adoption procedures. 463 U.S. at 263, 103 S.Ct. 2985.

*92 Thus, when considering Lehr and its application here, it is vital to remember the Court upheld a statute that terminated the parental rights of a biological father, but it did so in the context of a pending adoption proceeding. Because a nonbiological father figure was ready, willing, and able to assume the responsibilities of parenthood, the Lehr Court found no reason to delay the childs adoption simply because the previously absentee biological father

suddenly asserted rights, yet failed to take the steps necessaryas provided by a statuteto preserve those rights. 463 U.S. at 26566, 103 S.Ct. 2985.

Placed in context, the Lehr Courts affirmance of the termination of the biological fathers parental rights makes sense, and the Courts observation that *p+arental rights do not spring full-blown from the biological connection between parent and child is merited. 463 U.S. at 260, 103 S.Ct. 2985 (quoting Caban v. Mohammed, 441 U.S. 380, 397, 60 L.Ed.2d 297, 99 S.Ct. 1760 [1979] [Stewart, J., dissenting] [ruling that the adoption of two children by their stepfather would violate the Equal Protection rights of the biological father, who had constantly been involved with the lives of the children] ).

Here, however, we are not faced with a situation in which an additional party seeks to assert parental rights; instead, only the biological father seeks to assert his rights to parent his children. Thus, the need for a determination of parental rights does not exist in the same urgency that it exists in an adoption situation where all parties involved, particularly the child, are best served with clear laws and a certain ruling.

I would urge the majority to consider the complete rationale of Lehr: When an unwed father demonstrates a full commitment to the responsibilities of parenthood by com*ing+ forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. 463 U.S. at 261, 103 S.Ct. 2985 (quoting Caban, 441 U.S. at 392, 99 S.Ct. 1760).

That is the scenario with which this court is faced. A putative father has come forward to participate in the rearing of his children, emotionally and financially; consequently, his interest in doing so is entitled to full protection under the Due Process Clause. Instead of being given this protection and an opportunity to prove *93 that he intended to actively parent his children, D.H. has been subjected to the workings of a statute of which he was unaware, that required him to opt in to fatherhood before ever donating his sperm, or be forever barred from parenting his children.

I strongly disagree with the majoritys conclusion that D.H.s own inaction, whether due to ignorance of the law or otherwise, constituted a waiver of his rights to parent.

Because the rights to parent are fundamental, those rights may be waived only through an intentional, free, and meaningful choice. Here, the record indicates D.H. was not even aware of K.S.A. 381114(f), much less its requirement that he must enter into a written agreement formalizing his intent to parent his child before he provided his sperm to S.H. I would find the statutes requirement that a known sperm donor affirmatively take action to preserve his fundamental rights to **1050 parent constituted a violation of due process as applied to D.H.

The States interest in furthering predictability, clarity, and enforceability The majority declares that the K.S.A. 381114(f) requirement that any agreement regarding parenting be in writing enhances predictability, clarity, and In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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enforceability. Op. at 37. Further, it suggests that avoidance of the limbo in which D.H. finds himself in is a worthy legislative goal. Op. at 37.

Clarity, while an admirable goal, has little do with the constitutionality of this statute. Significantly, in Stanley, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, the United States Supreme Court addressed the allegations of clarity and administrative convenience as justifications for a purported violation of the Due Process Clause. There, an unwed father challenged an Illinois statute which resulted in his classification as an unfit father and the removal of his children from their home after the death of the mother because he had not been married to the childrens mother. The State argued it was unnecessary to hold individualized hearings to determine the fitness of unwed fathers before those fathers were separated from their children because unmarried fathers were per se unfit.

The Supreme Court disagreed and ruled in accordance with the Due Process Clause that Stanley was entitled to a fitness hearing *94 before his children were taken from him. 405 U.S. at 649, 92 S.Ct. 1208. The Court specifically addressed the argument that individualized hearings for unmarried fathers would create an administrative inconvenience and noted that although the State has an interest in prompt procedures, the Constitution recognizes higher values than speed and efficiency. 405 U.S. at 656, 92 S.Ct. 1208.

Thus, even though K.S.A. 381114(f) may provide a quick and clear method to dismiss paternity actions, it must comport with the values inherent in the Constitution, namely due process of law.

The Court in Stanley pointed out that prompt procedures are not the only consideration important to citizens: Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. 405 U.S. at 65657, 92 S.Ct. 1208.

Kansas law provides a presumption that sperm donors are not the legal parents of any children conceived of the donated sperm, absent a written agreement. In the case of a known sperm donor and an unmarried woman, however, the donor should be allowed the opportunity for a hearing to establish his intent to be something other than a sperm donori.e., to establish his paternity and rights as a parent. Simply stated, I would find the statutes clarity

does not justify its constitutional violation.

The requirement of a writing under K.S.A. 381114(f) It is interesting to note that in considering whether the K.S.A. 381114(f) writing requirement may be met by considering S.H.s averments in her pleadings, the majority references Lewis Carrolls looking glass. Op. at 47. (*I+nterpreting *pleadings+ separately or together to prove the parties agreed to D.H.s status as a father would require Lewis Carrolls looking glass.). While I agree with the majority that we cannot interpret the pleadings filed by S.H. (in which she referred to D.H. as the father of her children at least 56 times) as the writing contemplated by K.S.A. 381114(f), I would find that S.H.s inconsistent pleadings and actions are evidence to be considered by the district court in determining *95 whether the parties agreed that D.H. would play an active role in the twins life.

S.H. filed a child in need of care (CINC) petition the day following the twins birth seeking to terminate D.H.s parental rights. In the petition, she alleged several reasons for terminating D.H.s parental rights, including D.H.s failure to provide prenatal emotional and financial

support, which implied she intended D.H. to play a role in the **1051 parenting process. Significantly, no mention was made in the CINC petition of K.S.A. 381114(f) or its potential application here. In fact, it was not until petitioner filed an amended petition more than 2 weeks after the initial petition that mention was made of K.S.A. 381114(f) and its presumption of nonpaternity.

Thus, I would remand for the district court to consider all evidence relevant to the existence of an agreement between the parties, including S.H.s inconsistent allegations regarding D.H.s responsibilities, her consistent reference to D.H. as the father of her children, and her failure to rely upon the statutory presumption in her initial petition.

As a final note, I agree that this court should not place fathers in an Alice and Wonderland scenario where the rules of the chess game are constantly changing and Kansas children are sometimes left without two supportive parents. And yet, it seems to me that rather than Lewis Carrolls looking glass, we are looking at this case through a funny mirror at the local carnival. It is apparent that D.H. seeks to be a loving and supportive parent to the two children he has biologically

fathered-two children who have no other putative father. And yet, by operation of a statute of which D.H. was unaware, his rights to parent these children were cut off before the children were conceived with the use of his In re K.M.H., 285 Kan. 53 (2007) 169 P.3d 1025

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sperm. This is a result we should not abide for D.H. or for his children absent the protections of due process.

Conclusion I would hold K.S.A. 381114(f) unconstitutional as applied to D.H. as it takes away his fundamental rights to parent his children without due process of law. Further, I would remand this case with *96 directions to the district court to resolve the factual dispute recognized by the majority herei.e., whether D.H. and S.H. agreed that D.H. would be the natural father of K.C.H. and K.M.H. If the court concludes that such an agreement existed, then it must hold that K.S.A. 381114(f) did not apply to extinguish D.H.s rights and must proceed to determine paternity and the extent to which D.H. will be permitted to share the rights and responsibilities of parenting his

two children.

HILL, J., dissenting:

I must respectfully join with Judge Caplinger in her dissent. I too agree that as applied in this case, K.S.A. 381114(f) is unconstitutional when applied to a known donor.

But I raise my hand and ask a different question. Who speaks for the children in these proceedings? As applied by the majority in this case, this generative statute of frauds slices away half of their heritage. A man who was once considered a putative father in the initial child in need of care proceeding is now branded a mere semen donor. The majority offers the children sympathy. But is this in their best interests? The trial court never got to the point of deciding the best interests of the children because it was convinced that such a consideration was barred by the operation of K.S.A. 381114(f) to a known donor.

None of the elaborate and meticulous safeguards our Kansas laws afford parents and children in proceedings before our courts when confronted with questions of parentage have been extended to these children. A quick

glance over our procedures dealing with the Kansas Parentage Act (K.S.A. 381110 et seq.) or our Code for Care of Children (K.S.A. 381501 et seq.) reveals the great caution we take in this state when courts must consider such relationships. While it is true that an attorney was appointed to represent the children in the original child in need of care case, the record from their point of view remains silent. Instead only the voices of mother and semen donor are heard in district court and this court as well.

I agree with the Ohio Court of Common Pleas when it said: A fathers voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action. A statute which absolutely extinguishes *97 a fathers efforts to assert the rights and responsibility of being a father, in a case with such facts as those sub judice, runs contrary to due process safeguards. [Citation **1052 omitted.+ C.O. v. W.S., 64 Ohio Misc.2d 9, 12, 639 N.E.2d 523 (1994) (citing Lehr v. Robertson, 463 U.S. 248, 77 L.Ed.2d 614, 103 S.Ct. 2985 [1983] ).

I think the same can be said about our statute.

Parallel Citations