Opinion
2 CA-CV 2023-0075
01-23-2024
Richard Manning, Petitioner/Appellee, v. Marian Gracia, Respondent/Appellant.
Southern Arizona Legal Aid Inc., Tucson By Kristin Fitzharris Counsel for Respondent/Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. SP20220175 The Honorable Jeffrey L. Sklar, Judge The Honorable Nanette M. Warner, Judge The Honorable Catherine M. Woods, Judge.
Southern Arizona Legal Aid Inc., Tucson By Kristin Fitzharris Counsel for Respondent/Appellant.
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Marian Gracia appeals from trial court's order adjudicating Richard Manning the father of her child, J.G. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the trial court's ruling." Doherty v. Leon, 249 Ariz. 515, ¶ 2 (App. 2020). Gracia and Manning were involved in a relationship for approximately six months in 2021, ending in late September or early October 2021. In August or September, they learned that Gracia was pregnant. They became engaged to be married, but ended the relationship shortly thereafter.
¶3 In September 2021, after the relationship ended, Gracia obtained an order of protection against Manning. The order was served on Manning sometime in March 2022. Shortly afterward, Manning-who acted as a self-represented litigant throughout the trial court proceedings- filed a verified petition for paternity with parenting time and sole legal decision-making. See A.R.S. § 25-806(A). That petition requested genetic testing to establish paternity if the issue was contested.
¶4 J.G. was born on March 27, 2022. On April 22, 2022, Gracia executed an acknowledgment of paternity with Louis Godino. See A.R.S. § 25-812(A)(1). Thereafter, she obtained a birth certificate naming Godino as J.G.'s father.
¶5 In May 2022, Gracia filed a verified response and counterclaim in Manning's paternity proceeding, arguing that Godino was J.G.'s legal father, that he was named on the birth certificate as the father, and that he had filed an acknowledgment of paternity. She also alleged that Manning had engaged in emotionally and sexually abusive behavior toward her during their relationship.
¶6 Manning did not file a response to Gracia's counterclaim. On June 21, 2022, the last day Manning could have challenged the acknowledgment of paternity under § 25-812(E) other than on the basis of fraud, duress, or material mistake of fact, the trial court sua sponte issued an order construing Manning's March 2022 paternity petition as a motion for relief from judgment in regard to Godino's April 2022 acknowledgment of paternity. See § 25-812(C)-(D) (acknowledgement of paternity has "same force and effect as a superior court judgment" when filed with court or department of economic security); § 25-812(E) (allowing Rule 85(c) motion from acknowledgment of paternity); Ariz. R. Fam. Law P. 85(c). The court then ordered genetic testing, pursuant to A.R.S. § 25-807(C).
¶7 Gracia moved for reconsideration. The trial court stayed the genetic testing and permitted Manning to respond, specifically directing him to indicate whether he intended to proceed with the paternity action and whether he sought to challenge the acknowledgment of paternity. Manning filed a response in July 2022, which stated that he "fully wish[ed] to proceed" with the "direction of [the] case" and with genetic testing. The court construed Manning's response as a Rule 85 challenge to the acknowledgment of paternity, and it set an evidentiary hearing.
¶8 At the conclusion of the evidentiary hearing, the trial court found, by a preponderance of the evidence, that the acknowledgment of paternity was based on a material mistake of fact because the date of conception was "actually sometime after July 6th of 2022." It therefore set aside the acknowledgment of paternity, entering a final order pursuant to Rule 78(b), Ariz. R. P. Juv. Ct., and ordered genetic testing. Gracia does not appear to challenge the order setting aside the acknowledgment of paternity, although she complains in her opening brief that the process leading up to that order was unfair to her. But, because her notice of appeal was filed more than thirty days after the entry of the court's order setting aside the acknowledgement, we lack jurisdiction to consider that ruling in any event. See A.R.S. § 12-2101(A)(2); Ariz. R. Fam. Law P. 78(b), 85; Ariz. R. Civ. App. P. 9(e)(1)(E).
¶9 After the trial court set aside the acknowledgment of paternity, Manning filed a motion seeking temporary orders for legal decision-making and parenting time. Later the same day, Gracia filed a notice that genetic testing had shown, with 99.99 percent probability, that Manning is the biological father of J.G. The court set an in-person evidentiary hearing to adjudicate paternity and, if appropriate, establish temporary orders.
¶10 While awaiting that evidentiary hearing, Gracia filed a motion pursuant to Rule 64, Ariz. R. Fam. Law P., for findings of fact based on Manning's failure to respond to her requests for admission during discovery. Manning did not respond to this motion. Gracia also filed a motion pursuant to Rule 63, Ariz. R. Fam. Law P., requesting a psychosexual evaluation of Manning, which he opposed.
¶11 After the evidentiary hearing on paternity, the trial court denied Gracia's motion for findings of fact and adjudicated Manning the legal father of J.G., upon finding that the presumption in favor of Godino's paternity had been rebutted by the clear and convincing evidence of genetic testing. Gracia appealed from this order, which the trial court entered pursuant to Rule 78(b), Ariz. R. Fam. Law P. We have jurisdiction pursuant to § 12-2101(A)(1). See Ariz. R. Fam. Law P. 78(b).
¶12 The trial court also denied Gracia's motion for a psychosexual evaluation and entered temporary legal decision-making, parenting time, and child support orders. Although Gracia argues the court erred in denying her Rule 63 motion, we lack jurisdiction to review that ruling as it was not within the scope of the court's Rule 78(b) ruling. See Ariz. R. Fam. Law P. 78(b). Nor can we review the court's temporary orders as such orders are "preparatory" and not a final, appealable judgment. Villares v. Pineda, 217 Ariz. 623, ¶ 11 (App. 2008); see Ariz. R. Fam. Law P. 78(a)(1) ("A temporary order is not a judgment."); § 12-2101.
Discussion
¶13 Gracia argues the trial court "overstepp[ed] the limits of fair treatment of" a self-represented litigant in its application of procedural rules as to Manning, in particular through its discovery rulings leading up to the February 2023 orders. She further contends that, at least partially as a consequence of those pretrial rulings, the court incorrectly weighed the evidence in adjudicating Manning the legal father.
¶14 Manning has not filed an answering brief. In our discretion, we may treat such failure as constituting a confession of reversible error when the opening brief presents debatable issues. See Tiller v. Tiller, 98 Ariz. 156, 157 (1965); Counterman v. Counterman, 6 Ariz.App. 454, 457 (1967) (presumption discretionary). However, it is "our duty to examine the record to determine whether there are debatable issues." Air East, Inc. v. Wheatley, 14 Ariz.App. 290, 292 (1971). Further, "resolution of cases on their merits is preferred." DeLong v. Merrill, 233 Ariz. 163, ¶ 9 (App. 2013).
I. Pretrial &Discovery Rulings
¶15 Gracia argues the trial court abused its discretion through its treatment of Manning's pretrial conduct, causing her "unjust prejudice." Specifically, she contends the court tolerated multiple violations of procedure. She maintains that this included Manning's failure to file a pretrial statement and his untimely responses to her requests for admission, which he improperly filed directly into the docket. She argues that this went "so far beyond the standard of treatment" for self-represented litigants that it "has undeniably risen to the level of abuse of discretion." She contends Manning's litigation conduct "should have been the basis for continuing or staying the hearing," prohibiting his claims, treating designated facts from ignored requests for admission as established under Rule 64(a)(4), or as grounds for sanctions, as provided by Rule 76.2, Ariz. R. Fam. Law P.
¶16 We review a trial court's discovery rulings for abuse of discretion. Johnson v. Provoyeur, 245 Ariz. 239, ¶ 8 (App. 2018). This standard also governs our review of a court's decisions regarding sanctions against a party who has committed discovery or evidentiary violations. See Kelly v. Kelly, 252 Ariz. 371, ¶ 16 (App. 2021); Seidman v. Seidman, 222 Ariz. 408, ¶ 18 (App. 2009). In so reviewing, the question "is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason." Marquez v. Ortega, 231 Ariz. 437, ¶ 14 (App. 2013) (quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985)).
A. Requests for Admission
¶17 On November 19, 2022, Gracia served Manning with three discovery requests: uniform interrogatories, requests for admission, and a blank affidavit of financial information. Manning timely responded to the interrogatories, but he did not respond to the requests for admission within the forty-day window provided by Rule 64(a)(4). See also Ariz. R. Fam. Law P. 60(b)(1) (setting forty-day response period for interrogatories). Gracia therefore filed a motion "for findings of fact per admissions," asking the trial court to deem the matters in her requests admitted based on Manning's failure to deny the requested admissions, as allowed by Rule 64.
¶18 At the paternity hearing, the trial court discussed the matter of Gracia's requests for admission with the parties, noting that any response to Gracia's motion for findings of fact was due at the end of that day, January 17. The court further informed Manning that there were "legal implications that come with not responding timely to a request for admissions under Rule 64."
¶19 The next day, Manning filed his responses to Gracia's requests for admission, in which he denied fifteen of the twenty-five proposed fact statements. He did not file a response to Gracia's motion for findings of fact or otherwise move to withdraw or amend the admissions that arose from his failure to timely respond to the requests for admission. The day after he filed his responses to the requests for admission, the trial court on its own motion recalculated the deadline for Manning to respond to Gracia's motion for findings of fact. In that order, the court reset the deadline for Manning's response to the end of that same day, January 19. The court further quoted Rule 64(b), which provides that a court may, on motion, permit withdrawal or amendment of an admission to promote the presentation of the merits of an action so long as the court determines that the party requesting the admission will not be prejudiced thereby. Ariz. R. Fam. Law P. 64(b).
¶20 Despite Manning's failure to respond to Gracia's motion for findings of fact, in February 2023, the trial court denied the motion. Drawing on the above-quoted language of Rule 64(b), the court reasoned that the "presentation of evidence on the merits" was "promoted by allowing the late filing of" Manning's responses and that Gracia was not unduly prejudiced by such allowance because she "had a full and fair opportunity to present her case" at the January 2023 hearing.
¶21 Gracia contends that the trial court should not have analyzed the Rule 64(b) factors with respect to Manning's admissions because Manning did not expressly seek "to withdraw or amend any response." This argument essentially suggests the court had no discretion to treat Manning's late-filed response to the requests for admission as a motion to withdraw or amend.
¶22 However, in the context of Rule 36, Ariz. R. Civ. P., we have reasoned that courts may construe a party's late response to requests for admission as a motion to withdraw or amend. See DeLong, 233 Ariz. 163, ¶¶ 11, 18 (finding error in trial court's failure to apply Rule 36 factors in denying party's request to amend responses by filing them late); see also Ariz. R. Fam. Law P. 1(c) ("If language in these rules is substantially the same as language in the civil rules, case law interpreting the language of the civil rules will apply to these rules."). Numerous federal circuits have likewise recognized that courts have discretion to construe various party actions as motions to withdraw or amend an admission under the analogous Rule 36(b), Fed.R.Civ.P. See, e.g., United States v. Petroff-Kline, 557 F.3d 285, 293-94 (6th Cir. 2009) (formal motion to withdraw "not always required" but may be imputed from party's actions, "including the filing of a belated denial"); Bergemann v. United States, 820 F.2d 1117, 1120-21 (10th Cir. 1987) (construing arguments made in opposition to partial summary judgment, which principally concerned Rule 36 admission, as motion for withdrawal); Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1313 (8th Cir. 1983) (noting established circuit law deeming late response equivalent to withdrawal of admission).
¶23 Although Manning did not file any document styled as a motion to withdraw or amend, the day after the paternity hearing he filed his responses to Gracia's requests for admission with the trial court. Although it was procedurally improper under Rule 64(a)(4) for him to file those responses with the court rather than serving them on Gracia, the filing clearly indicated an intent to withdraw certain admissions stemming from Manning's failure to timely deny or object. See DeLong, 233 Ariz. 163, ¶¶ 4-5, 18. Thus, it was well within the court's discretion to construe that filing as a motion to withdraw or amend made under Rule 64(b). See id.
Because the trial court acted well within its discretion, the argument is not so "debatable" as to compel our conclusion that Manning confessed error on this issue. See Counterman, 6 Ariz.App. at 457.
¶24 Gracia further argues she was prejudiced by this ruling because she lacked time to present evidence that Manning had a background involving violent family relationships and sexual assault. She maintains that such evidence would have helped establish that "Mr. Manning did indeed violently sexually assault" her. And, she contends that alongside the evidence, some of the requested admissions would have conclusively established these facts.
¶25 The facts Gracia identifies might indeed be relevant to establishing domestic violence, which could properly influence a court's adjudication of parenting time or legal decision-making. See A.R.S. § 25-403.03. However, the trial court's temporary orders as to custody, parenting time, and legal decision-making are not issues presently before us. Under A.R.S. § 25-814, allegations of domestic violence are not factors a court weighs when adjudicating paternity. Because the paternity adjudication did not turn on facts establishing Manning's history of domestic violence, Gracia cannot show she was prejudiced by the court's acceptance of his late responses to her requests for admission, as required under Rule 64(b). Thus, the court did not abuse its broad discretion in making this discovery ruling. See Johnson, 245 Ariz. 239, ¶ 8.
B. Pretrial Statement
¶26 Gracia also contends the trial court erred in failing to sanction Manning for his failure to file the pretrial statement required under Rule 76.1(b), Ariz. R. Fam. Law P. As Gracia notes, such sanctions might range from prohibiting Manning from pursuing issues or claims up to and including rendering default judgment against him. See Ariz. R. Fam. Law P. 76.2(b). Or, pursuant to Rule 76.1(i), such sanctions might include barring Manning from presenting witnesses or exhibits or from objecting to witnesses, exhibits, or claims. However, by the plain text of that rule, the court has discretion in determining whether to impose any sanction at all. Rule 76.2 (in "pre-judgment or post-judgment proceeding, the court upon motion or its own initiative may impose sanctions" under specified circumstances (emphasis added)); see also Seidman, 222 Ariz. 408, ¶ 18. Gracia emphasizes the apparent unfairness arising from her having followed the procedural rules by filing a pretrial statement while Manning did not. But, Gracia has failed to explain how the court's failure to impose sanctions prejudiced her in the litigation. In particular, she has not identified any witness or exhibit Manning presented over her objection, nor does she identify any objection or any unexpected argument he raised, despite his failure to disclose them in a pretrial statement. Rule 76.1(i); cf. Allstate Ins. v. O'Toole, 182 Ariz. 284, 287 (1995) (reasoning that similar language contained in former Rule 26.1, Ariz. R. Civ. P., "should be broadly interpreted to require an examination of the grounds for granting relief" and "procedural rules should be interpreted to maximize the likelihood of a decision on the merits"). Consequently, we find no error in the court's decision to decline sanctions for Manning's failure to file a pretrial statement.
II. Paternity Determination
¶27 Gracia argues the trial court "abused its discretion by finding that Mr. Manning had carried his burden of proof by clear and convincing evidence that he should be the legal father." Specifically, she argues "the court should have applied a balancing test to determine the legal father by clear and convincing evidence," including, "implicitly, consideration of the best interest of the child." She contends that "considerations of policy and logic," identified by § 25-814(C) as controlling competing presumptions of paternity, dictate that Godino be named the legal father of J.G. This argument essentially asks us to reweigh the court's balancing of the presumptions of paternity under § 25-814. We review de novo a trial court's legal conclusions, but we review its findings of fact only for clear error. Doherty, 249 Ariz. 515, ¶ 7.
¶28 Section 25-814(C) provides that 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." There is "no hierarchy among the statutory presumptions in a paternity action." Doherty, 249 Ariz. 515, ¶ 10.
¶29 The trial court was faced with: (1) the acknowledgment of paternity; (2) J.G.'s birth certificate, issued after the acknowledgment of paternity had been signed and listing Godino as father; and (3) the results of genetic testing establishing Manning's biological fatherhood. As an initial matter, the acknowledgment of paternity had been set aside months before the paternity adjudication, casting substantial doubt on the reliability of the birth certificate naming Godino as J.G.'s father.
¶30 Even had the acknowledgment of paternity not been set aside, we find no error in the trial court's determination that the "presumption that Godino is [J.G.]'s father" was "rebutted by clear and convincing evidence" that Manning is the biological father. Rather, the record "reflects that the court considered all of the evidence in making its ruling." Doherty, 249 Ariz. 515, ¶ 15. Although the acknowledgement of paternity had been filed as provided in § 25-812, as the court noted, no court decree had been entered establishing J.G.'s legal father. However, genetic testing clearly and convincingly established that Manning is the biological father. The court also considered Gracia's prior representations to Manning and others, including medical professionals, that Manning was J.G.'s father.
¶31 Although Gracia correctly observes that factors such as financial support, family stability, and a finding of domestic violence necessarily factor into a trial court's custody determinations, "§ 25-814(C) does not expressly require" the court to make a best-interests finding in balancing presumptions of paternity. Doherty, 249 Ariz. 515, ¶ 16 (assuming without deciding that court's "considerations of policy and logic" includes best-interests analysis); see also A.R.S. §§ 25-403 (best interests factors), 25-403.03 (domestic violence).
¶32 In any event, the trial court expressly did consider J.G.'s best interests in its paternity adjudication ruling. It noted the efforts Manning had made to be involved with J.G.'s birth and care within the parameters of the ongoing order of protection, and it observed that he intended to be involved with J.G.'s life and had the capacity and desire to "learn to be a good father" and "to appropriately care for her." It also found that "Godino's involvement with [J.G. had] been minimal" but that Manning did "not object" to Godino's future involvement and relationship with J.G. Most pertinently to Gracia's argument, the court also squarely considered her allegations of domestic violence and sexual misconduct, ultimately concluding that the parties' "sexual behavior" did "not involve children" and was "not contrary to the best interests" of J.G.
¶33 Gracia maintains the trial "court abused its discretion by failing to consider credible evidence, failing to admit credible evidence, and improperly heavily weighing an affidavit with no supporting testimony in court." The bulk of this evidence went toward the court's characterization of the sexual relationship between Gracia and Manning. In making this argument, Gracia cites extensive secondary authority concerning the legal system's assessment of victim credibility, in particular with respect to female victims of sexual assault. Within this context, she suggests the court improperly discounted the credibility of her allegations that Manning had sexually assaulted her, as well as its findings regarding other aspects of the nature of their sexual relationship.
¶34 In particular, Gracia points to the trial court's February 2023 finding that any violent sexual behavior had been consensual as contradicting its September 2022 finding that her "testimony was credible." But the September 2022 finding arose in the context of the court determining when, and with whom, conception had occurred. The court made no finding whatsoever regarding the allegations of sexual abuse. In fact, it noted that although there "was a great deal of testimony about whether the relationship between Mr. Manning and Ms. Gracia was healthy or whether it was abusive," that testimony was not "relevant to the question of paternity." And, the court also expressly found Manning's "testimony was credible and consistent," such that we could not find clear error on the basis that the court also deemed Gracia credible in its September minute entry. Thus, we have no basis to contradict the court's February 2023 findings, which largely favored Manning's description of the relationship as involving "consensual sexual behavior involving BDSM."
¶35 Gracia contends, as a matter of public policy, that many victims of domestic and sexual violence encounter official skepticism of their experience as they navigate the criminal justice system. She implies the trial court engaged in this species of behavior. But she overlooks that a trial court is dutybound to consider both litigants' factual contentions in a paternity dispute. Credibility assessments are squarely within the province of the trial court; it is not our role to second-guess such determinations unless they are unsupported by the record. See Doherty, 249 Ariz. 515, ¶ 16. Under this standard, we cannot accept Gracia's invitation to supplant the trial court's findings of fact regarding the sexual relationship. See Marquez, 231 Ariz. 437, ¶ 14. And, we can find nothing in the record suggesting that the court was unsympathetic to victims of domestic violence or biased against Gracia.
¶36 Gracia further argues that she was denied due process because, although she litigated "paternity, temporary legal decision-making, parenting time, and child support" during the Rule 85 hearing in September 2022, she "unexpectedly ha[d] to re-litigate the facts that had been established" again at the paternity hearing in January 2023. She blames her failure to request a continuance at the latter hearing on the "unexpected" nature of the trial court's factual findings in Manning's favor.
¶37 A court "must afford the parties 'an opportunity to be heard at a meaningful time and in a meaningful manner'" as to the pertinent topic of the hearing. Volk v. Brame, 235 Ariz. 462, ¶ 21 (App. 2014) (quoting Curtis v. Richardson, 212 Ariz. 308, ¶ 16 (App. 2006)). Here, the proceeding adjudicated paternity and formed a basis for only temporary parenting orders. The record reflects that Gracia was afforded the opportunity to litigate those topics. Although the trial court did not admit all of Gracia's proffered exhibits and witnesses, it heard testimony from Manning, Gracia, and one witness for each party. This evidence enabled the court to "perform its essential tasks," id., here, balancing the necessary presumptions to make a paternity adjudication. Finally, although Gracia complains that the court "ignore[d] the police report and Order of Protection," its findings of facts expressly noted the dismissed sexual assault charges, as well as the existing order of protection. Again, assuming without deciding that the domestic violence allegations were relevant to the paternity adjudication, see Doherty, 249 Ariz. 515, ¶ 16, those allegations were clearly introduced into the record and squarely addressed by the court. Thus, we find no due process violation in the court's allocation of its time for this hearing. See Volk, 235 Ariz. 462, ¶ 20 (recognizing trial court's broad discretion over docket management, including discretion to impose reasonable time limits on proceedings); Ariz. R. Fam. Law P. 22(a).
The trial court noted that the parenting time and decision-making orders were temporary, and it set a review hearing before entering orders as to those matters.
Disposition
¶38 For the foregoing reasons, we affirm. We deny Gracia her request for attorney fees and costs on appeal. See A.R.S. §§ 25-324, 12-341.