Summary
suggesting that an acknowledgment of paternity creates a presumption of paternity like that arising from marriage or birth certificate, and referring to a voluntary-acknowledgment-based paternity determination as a "judgment"
Summary of this case from Johnson v. EdelsteinOpinion
No. 2 CA-CV 2017-0038-FC
11-30-2017
Chad Primo BRUMMOND, Petitioner/Appellant, v. Mona Lisa LUCIO, Respondent/Appellee.
Gregory A. Riebesehl, Phoenix, Counsel for Petitioner/Appellant
Gregory A. Riebesehl, Phoenix, Counsel for Petitioner/Appellant
Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.
ESPINOSA, Judge:
¶ 1 In this appeal, we address a question of first impression raised by a father following the trial court's summary denial and dismissal of his petition for paternity—whether a biological father can bring a paternity action outside the time constraints of A.R.S. § 25–812(E) and Rule 85(C), Ariz. R. Fam. Law P., when someone else has signed a voluntary acknowledgment of paternity regarding his child. For the following reasons, we answer that question in the affirmative, reverse the trial court's ruling, and remand for further proceedings consistent with this opinion.
Factual and Procedural Background
¶ 2 Shortly after C.D.'s birth in January 2014, the child's mother, Mona Lucio, and her boyfriend at the time, Charles Dittig, signed a voluntary acknowledgment of paternity identifying Dittig as the father. C.D.'s birth certificate also listed Dittig as the father. A little over two years later, Dittig filed a petition for paternity regarding C.D., noting that although Lucio had informed him he was not C.D.'s biological father, he did not wish to challenge the acknowledgment of paternity. Lucio filed a response, asserting Dittig was "not the biological father" of C.D. and asking the court to "deny any [and] all pleadings filed by [him]" regarding C.D. on that basis. Included with Lucio's response was a DNA test report identifying appellant Chad Brummond as C.D.'s biological father.
Dittig's paternity action also involved another child, D.D., not relevant to this appeal.
Deoxyribonucleic acid.
¶ 3 Lucio subsequently moved the trial court to order that C.D.'s birth certificate list Brummond as the father and that C.D.'s last name be changed to "Brummond." The court denied the motion, stating that "the statutory time limits to challenge paternity under Arizona law ha[d] passed." Later that month, Brummond filed his own petition for paternity asking the court to declare him C.D.'s legal father based on the DNA test.
¶ 4 In September 2016, Brummond additionally filed a motion to vacate the voluntary acknowledgment of paternity pursuant to § 25–812(E) and Rule 85(C), arguing it was based on Lucio's "material mistake of fact" in assuming Dittig was C.D.'s biological father. Brummond's motion was supported by affidavits executed by him and Lucio. In his affidavit, Brummond explained he was unaware of Lucio's pregnancy and C.D.'s birth until Lucio contacted him when C.D. was two years old. Specifically, in March 2016, Lucio suspected Brummond was C.D.'s biological father; she contacted him that month and they performed the DNA test in April; and since then C.D. had spent every weekend with Brummond, who paid child support to Lucio monthly. Lucio's affidavit further stated Dittig had contact with C.D. during his first three months of life but "ha[d] not had significant contact with [him]" since then and none since March 2016.
¶ 5 Upon Brummond's request, the trial court consolidated his paternity action with that of Dittig. At an October 2016 hearing, the court continued the matter, noting, "if the parties wish[ed] to brief the issue of ... whether or not Chad Brummond[']s Petition should be summarily dismissed for not being timely filed, then the parties [could] do so." Dittig and Brummond each filed a brief on the issue, Dittig arguing Brummond's motion to vacate the voluntary acknowledgment of paternity, and implicitly Brummond's paternity action itself, was time-barred by § 25–812(E) and Rule 85(C). Brummond argued those time restrictions did not apply to third-party biological fathers and instead A.R.S. § 25–804, which does not impose a time limit on paternity actions, controlled.
¶ 6 In November, the trial court heard arguments on Brummond's petition for paternity and motion to vacate the voluntary acknowledgment of paternity. In a signed minute entry, the court ruled that the acknowledgment "effectively precluded" Brummond's paternity action. The court then denied Brummond's petition for paternity and concluded he was "no longer a party to these proceedings." Brummond brought this appeal, over which we have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).
Paternity
¶ 7 Brummond argues the trial court erroneously dismissed his paternity action as untimely under A.R.S. § 25–812(E), asserting either the statute, correctly interpreted, does not apply, or it violates his due process and equal protection rights. We first address the applicability of § 25–812(E), because if it does not bar Brummond's paternity action, we need not consider his constitutional argument. See Planned Parenthood Ariz., Inc. v. Am. Ass'n of Pro–Life Obstetricians & Gynecologists, 227 Ariz. 262, ¶ 15, 257 P.3d 181, 189 (App. 2011) ("The fundamental rule of judicial restraint is to avoid constitutional questions unless ‘absolutely necessary’ to decide the case."), quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 526, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (O'Connor, J., concurring).
¶ 8 Section 25–803(A), A.R.S., identifies five categories of persons or entities who may commence "[p]roceedings to establish the maternity or paternity of a child." "The father" is among those so entitled, § 25–803(A)(2), and we have previously noted that category "must have been intended to provide standing to commence a paternity action to a putative father," or "[an] individual[ ] claiming to be [a child's] father[ ]." Ban v. Quigley, 168 Ariz. 196, 199, 812 P.2d 1014, 1017 (App. 1990). Furthermore, A.R.S. § 25–804 broadly allows "[p]roceedings to establish the paternity of the child [to] be instituted during the pregnancy of the mother or after the birth of the child." Finally, A.R.S. § 25–814(A) lists independent factors raising presumptions of paternity: "A man is presumed to be the father of the child if" he was married to the mother "in the ten months immediately preceding the birth," or "[g]enetic testing affirms at least a ninety-five per cent probability of paternity," or he is listed as the father on the child's birth certificate, or "[a] notarized or witnessed statement is signed by both parents acknowledging paternity." "If two or more presumptions apply, the presumption that the court determines, on the facts, is based on weightier considerations of policy and logic will control." § 25–814(C).
¶ 9 In this case, Brummond filed a petition for paternity in accordance with § 25–803(A)(2), asserting that "DNA testing results clearly demonstrate[d]" he was C.D.'s father. No party, nor the trial court, has disputed that Brummond in fact is C.D.'s biological father, and the record contains a DNA test report identifying his probability of paternity as "99.999996%." Because Dittig and Lucio signed an acknowledgment of paternity at C.D.'s birth and because C.D.'s birth certificate identifies Dittig as the father, however, "two or more presumptions apply" and according to § 25–814(C) the trial court needed to "determine[ ], on the facts," which presumptions, those supporting Dittig's or Brummond's claim of paternity, were "based on weightier considerations of policy and logic."
¶ 10 The trial court did not engage in the analysis contemplated by § 25–814(C). Instead, at the first hearing after consolidating the cases, the court invited briefing by the parties on "the issue of Andrew R, or any other related legal authority as to ... whether or not Chad Brummond[']s Petition should be summarily dismissed for not being timely filed." In Andrew R. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 453, ¶ 19, 224 P.3d 950, 954–55 (App. 2010), we held that a mother's Rule 60(c), Ariz. R. Civ. P., motion challenging an acknowledgment of paternity in accordance with § 25–812(E) was untimely because it was filed more than six months after the acknowledgment was signed. In that case, we expressly declined to address "whether someone not a party to the proceeding, such as an alleged father who subsequently comes forward, would be constrained in any way by A.R.S. § 25–812(E) when independently challenging a voluntary acknowledgment of paternity." Andrew R., 223 Ariz. 453, n.10, 224 P.3d at 954 n.10. We now conclude that statute does not constrain such a paternity action.
At the time Andrew R. was decided, § 25–812(E) referred to Rule 60(c) of the Arizona Rules of Civil Procedure. See Andrew R., 223 Ariz. 453, n.10, 224 P.3d at 954 n.10. The current version of § 25–812(E) refers to the corresponding rule of the Arizona Rules of Family Law Procedure, Rule 85(C), which was added in 2005 and "is based on Rule 60, Arizona Rules of Civil Procedure." Ariz. R. Fam. Law P. 85 committee cmt.
¶ 11 Section 25–812(A) provides that a child's paternity may be established by filing "[a] notarized or witnessed statement ... that is signed by both parents acknowledging paternity." A voluntary acknowledgment of paternity filed under subsection (A) "has the same force and effect" as a superior court judgment. § 25–812(C)–(D). Section 25–812(H) permits "[t]he mother or the father" to "rescind" the acknowledgement "within the earlier of" "[s]ixty days after the last signature is affixed" to it or "[t]he date of a proceeding relating to the child, including a child support proceeding in which the mother or father is a party." Finally, § 25–812(E) provides:
Pursuant to rule 85(c) of the Arizona rules of family law procedure, the mother, father or child, or a party to the proceeding on a rule 85(c) motion, may challenge a voluntary acknowledgment of paternity established in this state at any time after the sixty day period only on the basis of fraud, duress or material mistake of fact.
¶ 12 Section 25–812(E) thus both allows the use of a Rule 85(C) motion to challenge a voluntary acknowledgment of paternity and places bounds on challenges brought pursuant to that rule. The trial court and parties below apparently believed, contrary to the language of the statute referring specifically to Rule 85(C) motions, that the limitations of § 25–812(E) preclude other methods of challenging a voluntary acknowledgment of paternity.
¶ 13 Statutory construction, as a question of law, is reviewed de novo. Powers v. Carpenter, 203 Ariz. 116, ¶ 9, 51 P.3d 338, 340 (2002). "In interpreting statutes, we look to the plain language as the most reliable indicator of meaning." Id. If a statute is clear and unambiguous, we apply its plain meaning, but if it is ambiguous, "we look to the ‘ rules of statutory construction.’ " Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 3, 150 P.3d 773, 774 (App. 2007), quoting Lewis v. Ariz. Dep't of Econ. Sec., 186 Ariz. 610, 614, 925 P.2d 751, 755 (App. 1996). "In construing statutes, we have a duty to interpret them in a way that promotes consistency, harmony, and function." Welch–Doden v. Roberts, 202 Ariz. 201, ¶ 22, 42 P.3d 1166, 1171 (App. 2002).
¶ 14 It is notable that the parties and trial court in this case are not the first to assume § 25–812(E) would restrict a biological father's ability to assert his parental rights when another man has signed an acknowledgment regarding his child. For instance, in Castillo v. Lazo, 241 Ariz. 295, ¶¶ 3–4, 13, 386 P.3d 839, 841–42 (App. 2016), we were called upon to consider whether a birth certificate is equivalent to a voluntary acknowledgment because the parties and trial court there assumed § 25–812(E) would apply to a third-party biological father's petition for paternity.
¶ 15 Castillo, however, well demonstrates that it would be discordant to apply § 25–812(E) to actions filed outside Rule 85(C). There, Castillo had filed a paternity action regarding his two-and-a-half-year-old biological son who was born to a married woman and whose birth certificate listed the mother's husband as the father. Id.¶¶ 3–4. The mother moved to dismiss, arguing that the birth certificate was the equivalent of a voluntary acknowledgment and § 25–812(E) made Castillo's case untimely. Id.¶¶ 4, 9. The trial court agreed but we did not, holding that because a birth certificate is not a voluntary acknowledgment, § 25–812(E) had no possible application to Castillo's case and he was entitled to bring his action challenging the marital and birth certificate presumptions of the mother's husband. Id.¶¶ 4, 13, 18.
¶ 16 Were we to apply § 25–812(E) to petitions for paternity, not only would we be acting contrary to the plain language of the statute, but we would create the anomalous situation where a child's biological father can challenge the paternity of a child born in wedlock at any time but is given only a small window for doing so when there is not a marriage to potentially dissolve but rather a document signed without the biological father's knowledge or permission. It is unlikely our legislature intended that result. Moreover, although "the mere existence of a biological link does not merit equivalent constitutional protection" to a fully developed parent-child relationship, the United States Supreme Court has recognized that a biological father's interest in the "opportunity to form such a relationship" merits some protection. Lehr v. Robertson, 463 U.S. 248, 261–63, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
¶ 17 Applying § 25–812(E) to biological fathers' paternity actions would permit their constitutional interest in forming relationships with their children to be erased without any notice or opportunity to be heard, contrary to public policy. As Brummond points out, Lucio was not required to notify him she was pregnant and would be signing an acknowledgment of paternity with Dittig, nor would filing with the putative fathers registry have resulted in any notification of the acknowledgment. See Alvarado v. Thomson, 240 Ariz. 12, ¶ 20, 375 P.3d 77, 81 (App. 2016) (noting, "although it is undisputed that [the biological father] failed to make a filing with the putative fathers registry, ... there is no pending adoption or severance that would make such a failure relevant"); see also A.R.S. § 8–106.01(A)–(B) (putative fathers registry provides notice of adoption proceedings).
¶ 18 Furthermore, the plain language of § 25–812 and Rule 85(C) bolsters our conclusion that the procedure recognized in § 25–812(E) is not the only mechanism for obtaining relief from an acknowledgment of paternity. First, § 25–812(H) provides for the rescission of an acknowledgment without filing a Rule 85(C) motion. Additionally, Rule 85(C)(3) explicitly states, "This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment.... The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action." A petition for paternity filed by a child's biological father is an appropriate independent action to seek relief from the "judgment" of a voluntary acknowledgment signed by someone else. Furthermore, a "decree establishing paternity of the child" entered pursuant to § 25–814(C) and rebutting a presumption of paternity created by acknowledgment would necessarily override the acknowledgment's "judgment" status.
¶ 19 In this case, Brummond filed both a petition for paternity asserting a DNA test proved he was C.D.'s biological father, and a Rule 85(C) motion to vacate the voluntary acknowledgment of paternity under the "material mistake of fact" category. The trial court did not rule on Brummond's Rule 85(C) motion, instead summarily denying and dismissing his paternity action as "precluded." That ruling was in error. Although the Rule 85(C) motion was subject to the restrictions set forth in the rule and § 25–812(E), the latter gives no indication that it applies beyond a Rule 85(C) motion, and that rule itself allows for an "independent action" seeking relief outside its constraints. Thus, the court would have been correct in applying those constraints to Brummond's Rule 85(C) motion, but erred by applying them to his independent petition for paternity.
¶ 20 Finally, that Brummond asked the trial court to consolidate his case with Dittig's, and the court granted that request, does not change the nature of his petition for paternity as an independent action. In fact, the trial court in Ban dismissed, without prejudice, a biological father's paternity action challenging the marital presumption because it "failed to join the mother's husband, an indispensable party." 168 Ariz. at 197–98, 812 P.2d at 1015–16. It would be unjust to effectively punish Brummond for consolidating his case with Dittig's under Rule 5(A), Ariz. R. Fam. Law P., when the § 25–814(C) analysis requires weighing the presumptions against each other. Such a holding would run counter to the principle that "consolidation[, although] permitted as a matter of convenience and economy in administration, ... does not merge the suits into a single cause, or change the rights of the parties." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97, 53 S.Ct. 721, 77 L.Ed. 1331 (1933) ; see also Yavapai Cty. v. Superior Court, 13 Ariz. App. 368, 369–70, 476 P.2d 889, 890–91 (1970) (quoting Johnson in context of Rule 42(a), Ariz. R. Civ. P.); Ariz. R. Fam. Law P. 5 committee cmt. ("This rule is based on Rule[ ] 42(a), Arizona Rules of Civil Procedure.").
¶ 21 For all of the foregoing reasons, we conclude the time limits of § 25–812(E) and Rule 85(C) do not apply to a biological father's petition for paternity brought pursuant to § 25–803(A)(2). Accordingly, Brummond's petition was timely under § 25–804, and he is entitled to have the trial court determine "on the facts" whether his or Dittig's paternal presumptions are "based on weightier considerations of policy and logic." § 25–814(C). We note that nothing in our opinion today should be construed as directing the court's § 25–814(C) analysis.
In view of our conclusion, we need not consider whether the statute otherwise interpreted would violate Brummond's constitutional rights. See Planned Parenthood Ariz., 227 Ariz. 262, ¶ 15, 257 P.3d at 189.
Disposition
¶ 22 The trial court's order summarily denying and dismissing Brummond's petition for paternity is reversed and this case is remanded for further proceedings consistent with this opinion.