dissenting.
Saxon admitted paternity and conceded that his original denial of paternity was extrinsic fraud. Because of the perceived problems presented by Bill, Saxon agreed to pay the munificent sum of $2.47 per day for child support. This sum was a percentage of the guideline amount, and the agreement prohibited any modification of child support in the future.
The case upon which Saxon relied to support his argument for preclusion, Bill, is distinguishable from the instant case. In Bill, the putative father and the mother entered into an evidentiary stipulation that would settle the issue of paternity. 132 Ariz. at 519, 647 P.2d at 650. The parties used the stipulated procedure (a polygraph examination) to determine conclusively the merits of the case. The mother failed the polygraph examination, thereby providing the evidence on which the issue was decided. Id. Bill was decided on the merits.
Here, Smith, fearful of Saxon, believed that she and the child she was carrying would be better served if the proceedings did not continue. Therefore, Smith decided not to pay for a blood test, prompting the state to dismiss its case. Thus, the dismissal here was not founded on evidence or an evidentia-ry stipulation that addressed the merits of the paternity issue as in Bill. Furthermore, Saxon’s admissions of paternity and extrinsic fraud in the 1988 agreement add to the uncertainty as to whether Bill precluded further action by Smith.
If Bill is not controlling, then we face a contract that attempts to foreclose any modification of a settlement agreement. The law in Arizona prohibits one parent from relieving another parent from his or her duty to support their minor child through a contract. Evans v. Evans, 17 Ariz.App. 323, 325, 497 P.2d 830, 832 (1972). Such contracts violate public policy. That same rationale leads to the conclusion that contracts regarding the modification of prospective child support are also invalid. Mason v. Mason, 873 S.W.2d 631, 635 (Mo.Ct.App.1994); In re the Marriage of Watkins, 42 Wash.App. 371, 710 P.2d 819, 821 (1985). One cannot meet his or her obligation to a child if he or she contracts with the other parent to prohibit modification of support regardless of any changed circumstance. In such cases, the contract thwarts the public policy of ensuring continued support for one’s children commensurate with their legitimate needs. See generally A.R.S. § 12-2453(D) (providing for modification or revocation of support order upon showing of substantial and continuing changed circumstance).
The legislature determined that the prevailing party in modification actions may appropriately be awarded attorney’s fees. AR.S. § 12-2453(D). As discussed above, I believe Smith is the prevailing party here.
For the foregoing reasons, I would affirm the judgment of the trial court. Therefore, I respectfully dissent.