Opinion
No. 2 CA-CV 2014-0052
08-12-2014
JAMES C. MCWHORTER, Petitioner/Appellant, v. CHRISTLE JOY MCWHORTER, Respondent/Appellee.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. SP20120647
The Honorable Laurie B. SanAngelo, Judge Pro Tempore
AFFIRMED
James C. McWhorter, Inez, Kentucky
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 James McWhorter appeals from the trial court's order vacating a paternity judgment naming him the natural father of L.B. He argues that, because the State of Arizona's motion was untimely, the court lacked jurisdiction to set aside the judgment on grounds of fraud, misrepresentation, or other misconduct. For the reasons that follow, we affirm.
Christle has not filed an answering brief in this appeal. Although we may treat the failure to file an answering brief as "a confession of reversible error," we are not required to reverse merely on that basis. Bugh v. Bugh, 125 Ariz. 190, 191, 608 P.2d 329, 330 (App. 1980). And, because we prefer to resolve cases on their merits, in our discretion we address the merits of the appeal. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994) (confession-of-reversible-error doctrine discretionary); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984) (courts prefer to decide cases on their merits).
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). Christle McWhorter was married to Travis B. from October 2000 until April 2008. L.B. was born in 2005. In the decree dissolving their marriage, Christle was awarded custody of L.B. and Travis was ordered to pay child support.
The dissolution and child support proceedings that followed under cause number D20074304 are not part of this appeal. We therefore discern the relevant facts in that case from the trial court's findings in the present case, cause number SP20120647.
¶3 In June 2012, James filed a complaint for paternity under this cause number. The complaint included a purported DNA report printed on letterhead from "John A Taddie, PhD, Director" of the National Legal Laboratories, Inc. The report, along with affidavits from Christle and James, indicated that James was the father of L.B. Christle and James also stated they were "in the process of getting married," even though James was then serving a term of imprisonment for conspiracy to produce false identification documents, conspiracy to produce forged securities of a corporation, possession of document making instruments, possession of five or more false identification documents, and aggravated identity theft.
Deoxyribonucleic acid.
¶4 In July 2012, James filed an application for entry of a default judgment against Christle. The clerk filed an entry of default in August 2012, and, on September 11, 2012, the trial court entered a judgment and order for paternity, custody, and child support. On August 28, 2012, Travis filed a petition to stop or modify child support in the dissolution proceeding because he was "not the biological father per DNA test[ing]."
¶5 In December 2012, the trial court received a letter from a Federal Bureau of Prisons unit manager, stating that James's request to marry Christle had triggered an investigation. The unit manager discovered that James had been incarcerated in Tennessee from August 2002 until February 2006—during L.B.'s conception and birth—and that the DNA report submitted by James "appeared to have the wrong business address and showed unverifiable and unsigned lab results." To help him determine whether to grant the request for marriage, the unit manager asked for "a resolution of [the] paternity suit and . . . for the court to order a legitimate and binding DNA test."
¶6 The trial court held a hearing on Travis's motion to stop or modify child support and the present paternity action, which it "consolidated for purposes of [the] hearing only," and appointed a best interests attorney on behalf of L.B. (child's attorney). The court also ordered that "[a]ll parties in both cases and [L.B.] shall submit to Buccal Swab testing for the purpose of genetic testing." The child's attorney subsequently filed a motion, in which she asserted the court could and should set aside the September 2012 paternity order, pursuant to Rule 85(C), Ariz. R. Fam. Law P. She argued "fraudulent information was submitted to the Court in [that] action" and the order was void because James had failed to join Travis as a party.
A best interests attorney is "'[a] lawyer who provides independent legal services for the purpose of protecting a child's best interests.'" Aksamit v. Krahn, 224 Ariz. 68, ¶ 14, 227 P.3d 475, 479 (App. 2010), quoting ABA Standards of Practice for Lawyers Representing Children in Custody Cases § II(B)(2) (2003).
¶7 On March 25, 2013, the trial court held another consolidated hearing, during which the state—a party to the child support proceedings stemming from the dissolution—made an oral motion to dismiss the paternity action. The child's attorney also submitted a declaration from Taddie, the purported author of the DNA report filed by James in this action, which stated James's DNA report "is a false document." In response, James argued that the state's oral motion was improper and untimely and that Taddie's declaration did not prove he had falsified the report.
Section 25-509(A), A.R.S., states "[t]he attorney general or county attorney on behalf of this state may initiate an action or intervene in an action to establish, modify or enforce a duty of child support."
¶8 On May 10, 2013, the trial court set aside the September 2012 paternity order. It determined Travis was an indispensable party in the paternity action and, because he had not been joined as a party, he had been denied due process of law. The court concluded that James and Christle had "misrepresented the facts regarding the paternity of [L.B.] and misled the Court by their omission of facts that would have required that [Travis] be provided notice of the proceedings." This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
The trial court noted specifically that Christle had failed to "mention that she was married at the time that [L.B.] was born or that a court had ordered [Travis] to pay child support." The court further noted that James's "[a]ffidavit included the statement, 'There are no prior cases involving the custody of [L.B.] to the best of my knowledge and belief.'"
Discussion
¶9 James argues the trial court erred by setting aside the paternity order because the state challenged it in an untimely and improper oral motion. We review a trial court's ruling on a Rule 85(C) motion for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, ¶ 8, 282 P.3d 428, 432 (App. 2012). "We may affirm a trial court's grant or denial of Rule [85(C)] relief 'where any reasonable view of the facts and law might support the judgment of the trial court . . . even if the trial court has reached the right result for the wrong reason.'" Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, ¶ 27, 161 P.3d 1253, 1261 (App. 2007) (second alteration in Ruesga), quoting City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985); see also Duckstein, 230 Ariz. 227, ¶ 8, 282 P.3d at 432 ("'Wherever the language in [the Arizona Rules of Family Law Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules.'") (alteration in Duckstein), quoting Ariz. R. Fam. Law P. 1 cmt.; compare Ariz. R. Fam. Law P. 85(C), with Ariz. R. Civ. P. 60(c).
¶10 Pursuant to Rule 85(C)(1)(c), a party may request relief from a judgment or order for "fraud, misrepresentation, or other misconduct." See also Norwest Bank (Minn.), N.A. v. Symington, 197 Ariz. 181, ¶ 23, 3 P.3d 1101, 1106-07 (App. 2000). Such a motion must be filed "not more than six (6) months after the judgment or order was entered or proceeding was taken." Ariz. R. Fam. Law P. 85(C)(2); see Fry v. Garcia, 213 Ariz. 70, ¶ 13, 138 P.3d 1197, 1200 (App. 2006).
¶11 James argues that "no motion was made to set aside the judgment until March 25, 2013," that the state could not raise the issue in an oral motion, and that the state lacked standing to challenge a paternity acknowledgment pursuant to A.R.S. § 25-812(E). But James's arguments are not supported by the record. The trial court entered its judgment establishing James's paternity on September 11, 2012. The child's attorney filed a written motion for relief from the paternity judgment on behalf of L.B. on January 29, 2013, well within the six-month time limit. Because that motion sufficiently and timely brought a request for relief from the judgment pursuant to Rule 85(C) before the court, we need not address James's arguments regarding the state's motion.
¶12 Relying on Andrew R. v. Arizona Department of Economic Security, 223 Ariz. 453, 224 P.3d 950 (App. 2010), James also argues the time to file the motion began when he and Christle filed their petition and affidavits in June 2012, not at the time of the trial court's final order. His reliance on that case is misplaced.
¶13 In Andrew R., this court considered the timeliness of a motion for relief filed seven months after the parties had signed a voluntary acknowledgement of paternity pursuant to § 25-812. 223 Ariz. 453, ¶¶ 2, 9, 19, 224 P.3d at 951-52, 955. The majority noted that a party may rescind such an acknowledgment within sixty days of its execution. Id. ¶ 18; see § 25-812(H)(1). And, it recognized that after the sixty-day period, the parents or child could only challenge the acknowledgment pursuant to Rule 85(C). Andrew R., 223 Ariz. 453, ¶ 19 & n.10, 224 P.3d at 954 & n.10; see § 25-812(E). The majority therefore concluded that the six-month period to file a Rule 85(C) motion also must begin from the execution of the acknowledgment. Andrew R., 223 Ariz. 453, ¶ 19, 224 P.3d at 955. To bolster its interpretation, the majority stated, "there exists a strong public intent to advance a child's best interest by providing that child with permanency." Id. ¶ 24. And the majority recognized that "'the legislature's intent [must have been] to more narrowly restrict collateral attacks on voluntary acknowledgements of paternity.'" Id. ¶ 23, quoting Stephenson v. Nastro, 192 Ariz. 475, n.11, 967 P.2d 616, 624 n.11 (App. 1998).
Section 25-812(E) states:
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, with the burden of proof on the challenger and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment shall not be suspended during the challenge except for good cause shown.
¶14 Nevertheless, because James filed a complaint for paternity, not a voluntary acknowledgment of paternity pursuant to § 25-812, Andrew R. is inapplicable here. See A.R.S. § 25-806. A voluntary acknowledgment of paternity pursuant to § 25-812(A) applies to "a child born out of wedlock." But L.B. was born in 2005, during Travis and Christle's seven-year marriage.
¶15 Moreover, none of James's or Christle's filings fall within the parameters of § 25-812. An acknowledgment must either include "an affidavit from a certified laboratory [stating] the tested father has not been excluded" or "[a] notarized or witnessed statement that contains the social security numbers of both parents and that is signed by both parents acknowledging paternity." § 25-812(A)(1), (2). "If another man is presumed to be the child's father pursuant to [A.R.S.] § 25-814," the notarized statement also must include the presumed father's written consent. § 25-812(A)(1); see § 25-814 (presumption applies if the man "and the mother of the child were married at any time in the ten months immediately preceding the birth").
James argues the dissolution action between Christle and Travis "does not create any barriers to the validity of [the acknowledgment] because [the dissolution] did not make any paternity determinations." But the obligation to gain the consent of "another man" turns on the presumption of paternity, not a previous "determination" of paternity. See § 25-812(A)(1). And, in any event, a dissolution awarding custody and child support necessarily implies the court found the child was a "natural or adopted child common to the parties." A.R.S. § 25-312(4); see Pettit v. Pettit, 218 Ariz. 529, ¶ 7, 189 P.3d 1102, 1105 (App. 2008).
¶16 In this case, the DNA report James filed did not include an affidavit, and, based upon Taddie's declaration, the trial court concluded James had falsified the report. Moreover, the affidavits submitted by Christle and James did not include their social security numbers or Travis's written consent. Because James did not comply with § 25-812, its protections do not apply here.
For the same reason, we reject James's argument that, because "fraud, duress or material mistake of fact are the only claims available" pursuant to § 25-812(E), the trial court erred when it "substantially relied on misrepresentation grounds."
¶17 Lastly, James seems to argue that his failure to disclose Travis and Christle's dissolution action was not a misrepresentation because there was "[n]o procedural or substantive rule or statute" that required Travis's joinder and that, in any event, Travis "had sufficient notice to satisfy constitutional due process standards, which would render the error, if any, harmless." But James does not dispute the trial court's other basis for granting relief from the paternity order: the falsified DNA report. See Dawson v. Withycombe, 216 Ariz. 84, ¶ 91, 163 P.3d 1034, 1061 (App. 2007) (issues not raised in opening brief waived). And, because James does not assign error to this independent basis for the court's conclusion, we do not consider this issue. See Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540 (App. 2006) (reviewing court will affirm if lower court was legally "correct for any reason apparent in the record"). In sum, the court did not abuse its discretion in vacating the paternity judgment. See Ruesga, 215 Ariz. 589, ¶ 27, 161 P.3d at 1261.
Apparently in support of this argument, James also argues "[t]he 'new' DNA test submitted by the State of Arizona could not properly be considered by the [trial court]" because he timely objected to the report. But the court was not bound by James's objection to the DNA test, which, notably, was filed by the state unchallenged in the dissolution action. And, because the report establishing Travis's paternity was filed properly in the dissolution action, we conclude the trial court did not err in considering it in the paternity action filed by James.
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Disposition
¶18 For the foregoing reasons, we affirm.