Opinion
2 CA-CV 2024-0075
11-19-2024
Sean W. Nunnink, Petitioner/Appellant, v. Gardaja Y. Miller, Respondent/Appellee.
Sean W. Nunnink, Glendale In Propria Persona The Sifferman Law Firm PLLC, Phoenix By Mark S. Sifferman Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2023003726 The Honorable Robert Brooks, Judge
Sean W. Nunnink, Glendale In Propria Persona
The Sifferman Law Firm PLLC, Phoenix By Mark S. Sifferman Counsel for Respondent/Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Sean Nunnink appeals from the superior court's grant of summary judgment in favor of Gardaja Miller, effectively dismissing both his petition to establish paternity and his petition for third-party rights to Z.M., as provided by A.R.S. § 25-409. For the following reasons, we affirm in part and vacate in part the entry of summary judgment and remand so the court may proceed with a determination of Nunnink's rights under § 25-409.
Factual and Procedural Background
¶2 On review from an order granting summary judgment, we "view the facts and the reasonable inferences to be drawn from those facts in the light most favorable to the non-moving party." Takieh v. O'Meara, 252 Ariz. 51, ¶ 11 (App. 2021). Miller's daughter, Z.M., was born in June 2020. Miller and Nunnink never married, but they lived together before Z.M.'s birth and continuing afterward until May 2023. In May 2023, Miller left Nunnink's residence, taking Z.M. with her.
¶3 In June 2023, Nunnink, a self-represented litigant, filed a third-party petition to establish legal decision-making authority and parenting time as to Z.M. Nunnink requested the superior court designate his home as Z.M.'s primary residence and requested sole legal decision-making. He further requested that the court "restore" his role as Z.M.'s "primary caregiver," in his alleged capacity in loco parentis and that it order substance abuse treatment for Miller. The same day, the court issued a preliminary injunction that, among other things, forbade both parties from removing Z.M. from Arizona.
¶4 In July, through counsel, Miller responded to Nunnink's petition to establish legal decision-making. She informed the superior court that she had irrevocably relinquished her parental rights over Z.M. to an adoption agency on June 14, two weeks before Nunnink filed his § 25-409 petition. She further noted that Z.M. had been placed with out-of-state prospective adoptive parents. She denied that Nunnink was Z.M.'s biological or legal father or that he stood in loco parentis to Z.M.
¶5 On August 3, Nunnink filed a petition to establish paternity, as provided by A.R.S. § 25-803. In that petition he also reasserted his requests regarding Z.M.'s primary residence and for sole legal decision-making. Nunnink stated that he sought "to contest the [a]doption" of Z.M. and asserted that he had acted as Z.M.'s father since her conception. Thereafter, Nunnink filed an affidavit attesting that he and Miller had moved in together in the spring of 2018. He noted that although he was not permitted to be present at the birth of Z.M. because of COVID-19 restrictions, he had supported Miller during her pregnancy with Z.M. And, he asserted that he continued to support Z.M. He further stated that the "pandemic interfered with the normal completion of new birth paperwork." Nunnink also filed a motion to join the adoption agency as a party, and the agency was served with summons of process.
Later, when responding to Miller's motion for summary judgment, Nunnink specified that the putative father registry was allegedly "broken by [COVID]-19 restrictions." A putative father must timely file a notice of claim of paternity in the putative father registry, as required by A.R.S. § 8-106.01 for the putative father to preserve a statutory right to notice of adoption proceedings. See § 8-106.01(A), (B), (E).
¶6 Miller moved for paternity testing, as allowed by A.R.S. § 25-807(C). The court ordered DNA testing of both parties and Z.M. Although Nunnink contested their validity, those test results demonstrate that Nunnink is not Z.M.'s biological father.
¶7 Miller then moved for summary judgment. She urged the superior court to find Nunnink was not the biological father of Z.M. and to dismiss with prejudice his petition for a court order of paternity. Nunnink opposed the motion. After finding that Nunnink was neither the biological nor the legal father of Z.M., the court dismissed the matter with prejudice. It also denied any relief sought before the grant of summary judgment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21, 12-2101(A)(1).
Discussion
¶8 We review de novo a superior court's grant of summary judgment. Eans-Snoderly v. Snoderly, 249 Ariz. 552, ¶ 7 (App. 2020).
Summary judgment is proper when the moving party "shows that there is no genuine dispute as to any material fact" and it is thus "entitled to judgment as a matter of law." Ariz. R. Fam. Law P. 79(a).
I. Summary Judgment on Paternity Petition
¶9 Nunnink argues the superior court improperly admitted into evidence the DNA test results, which formed the partial basis for the court's grant of summary judgment. As he suggested during summary judgment proceedings, Nunnink argues the testing laboratory employed inadequate procedures, rendering the test results "unreliable and inadmissible." However, Nunnink provided the superior court with no evidence to support his assertion that the lab report was inaccurate. See Ariz. R. Fam. Law P. 79(e) (party opposing summary judgment must set forth, "by affidavits or as otherwise provided" in rule, "specific facts showing a genuine issue for trial"). Further, during oral argument on the motion, Nunnink conceded he could provide no evidence the results of the test were inaccurate. Likewise, on appeal, Nunnink has pointed to no fact in evidence to support this argument. Nunnink has also failed to develop his legal argument that the test results were inadmissible. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must include arguments containing "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities"); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (appellant's claim waived for failure to provide "significant arguments" with supporting authority in opening brief). Therefore, we find no error as to the court's consideration of the DNA evidence, and the court did not err by granting summary judgment to Miller as to the paternity petition.
Nunnink does not appear to challenge the superior court's entry of summary judgment on the paternity petition outside of his objection to the admissibility of the DNA evidence.
II. Nunnink's Legal Rights under Section 25-409 A. Conversion from In Loco Parentis to Paternity Action
Nunnink's reply brief was untimely filed. See Ariz. R. Civ. App. P. 15(a)(3) (reply brief must be filed within twenty days of filing of answering brief). In our discretion, we have nonetheless considered the arguments made in that filing. Cf. In re Marriage of Diezsi, 201 Ariz. 524, ¶ 2 (App. 2002) (noting discretionary nature of Rule 15 when party fails to file answering brief).
¶10 Nunnink contends that the superior court erred in refusing to consider his § 25-409 petition on the merits. Specifically, he maintains the court mistakenly concluded that the later-filed petition for paternity converted his previous petition, filed pursuant to § 25-409, into an action for paternity. We agree that the court erred in failing to address the § 25-409 petition on its own merits.
In our discretion, we decline Miller's invitation to construe this argument as waived for Nunnink's failure to fully raise it below. See Nold v. Nold, 232 Ariz. 270, ¶ 10 (App. 2013) (waiver doctrine discretionary and should be applied with particular care in matters where "the best interests of the child trump the consequences ordinarily imposed for violations of the rules"). Nor do we accept Miller's contention that Nunnink somehow waived his right to argue in support of his § 25-409 petition because he "never argued in response to the summary judgment motion that his § 25-409 petition was still viable." Importantly, Miller's motion for summary judgment did not argue that the superior court should enter judgment on the issue of the § 25-409 petition.
¶11 After Nunnink filed both petitions in question, the superior court held two status conferences. During the first, the court indicated that, should paternity testing indicate Nunnink was not Z.M.'s biological father, it would proceed to consider his third-party petition. But at the second conference, which occurred after testing indicated Nunnink was not Z.M.'s biological father, the court informed Nunnink that his filing of the paternity petition had "converted this from a [§ 25-]409 matter, which would be an in loco parentis, to a paternity action." It therefore never ruled on the merits of the § 25-409 petition.
¶12 The superior court never set forth its reasoning for concluding the action had been converted from an in loco parentis proceeding into a paternity matter. However, we presume the court accepted Miller's argument that Nunnink's petition for paternity had superseded his in loco parentis petition in the manner that an amended complaint supersedes an initial complaint in a civil matter. See, e.g., Campbell v. Deddens, 21 Ariz.App. 295, 297 (1974) (reasoning that because "amended complaint took the place of the original, all subsequent pleadings are based on the amended complaint"). Miller reasserts this argument in her answering brief.
¶13 We cannot agree. Miller cites exclusively to cases involving our state's rules of civil procedure in arguing that the paternity petition functioned as an amended complaint that superseded the petition for in loco parentis status. But in family law matters, the Arizona Rules of Civil Procedure "apply only when" the family law rules "expressly incorporate them." Ariz. R. Fam. Law P. 1(c). Otherwise, when the language of the family law rules is "substantially the same as language in the civil rules," we consider case law interpreting the latter language as applicable to the former. Id.; see also Kline v. Kline, 221 Ariz. 564, ¶ 13 (App. 2009). To be sure, our rules of civil procedure and family law procedure contain similar-but not identical-processes for filing amended pleadings. Compare Ariz. R. Fam. Law P. 28, with Ariz. R. Civ. P. 15. However, the rules governing pleadings are not substantially similar across the two sets of procedural rules. Compare Ariz. R. Fam. Law P. Rule 23(a) (specifically defining eleven distinct "petition[s]" and citing statute governing each, including petitions to establish paternity and to seek third-party rights) with Ariz. R. Civ. P. 7 ("Pleadings Allowed"), 8 ("General Rules of Pleading," providing that pleadings "may include relief in the alternative or different types of relief"). Therefore, as directed by Rule 1, Ariz. R. Fam. Law P., we can find no guidance from the cases Miller cites.
¶14 Further, we are unpersuaded that Nunnink's petition for paternity operated as an amendment to his petition for third-party rights. Although a petition "is the initial pleading that begins a family law case or a post-decree matter," Ariz. R. Fam. Law P. 23(a), family law proceedings routinely handle multiple issues that may be raised as petitions within the same action. See, e.g., In re Dependency of G.R., 255 Ariz. 444, ¶¶ 3, 14, 22, 30-31 (App. 2023) (vacating dependency order where paternity petition pending, reasoning that "parties must address, and the court must resolve, relevant paternity issues before the court determines dependency"); Gish v. Greyson, 253 Ariz. 437, ¶¶ 13-14 (App. 2022) (petition for contempt filed during pendency of determination of same party's petition for modification); Olesen v. Daniel, 251 Ariz. 25, ¶¶ 4, 6 (App. 2021) (noting post-decree litigation included petitions by mother for protective order and legal decision-making, by mother and father for modified parenting plans, and by intervenor grandparents for third-party parenting rights); Vera v. Rogers, 246 Ariz. 30, ¶ 12 (App. 2018) (noting that parent may petition to determine legal decision-making and parenting time in various proceedings initiated by filing different petition); see also Stephenson v. Nastro, 192 Ariz. 475, ¶ 17 (App. 1998) (explaining that custody may be determined after paternity proceedings, "regardless of the paternity determination"). Notably, the statute governing petitions for paternity proceedings itself contemplates that more than one petition may be filed in an action even after a paternity determination is made. A.R.S. § 25-806(D) ("If other relevant issues are raised in the [paternity] petition . . . or in a separate petition filed after entry of a paternity . . . judgment, the court shall proceed to resolve all relevant issues in the case pursuant to the rules of procedure applicable to family law cases.").
¶15 We have previously recognized that a superior court handling family law matters is vested with the power "to do full and complete justice between the parties." DiPasquale v. DiPasquale, 243 Ariz. 156, ¶ 11 (App. 2017) (quoting Jensen v. Beirne, 241 Ariz. 225, ¶ 14 (App. 2016)). Where, as here, Nunnink's two petitions are predicated on alternative legal theories arising under separate statutes, we see little sense in Miller's implicit suggestion that Nunnink was required to have filed an amended petition that listed both alternative, and exclusive, grounds for relief. See A.R.S. §§ 25-401(4) ("[l]egal parent" means "biological or adoptive parent whose parental rights have not been terminated" and "does not include a person whose paternity has not been established"); 25-409 ("person other than a legal parent may petition the superior court for legal decision-making authority or placement of the child"); 25-803 (father may file petition to establish paternity and to request legal decision-making and parenting time). Given that each petition asserts a distinct avenue for asserting parental rights, we can conjure no logic requiring Nunnink to have filed a redundant action to reassert his § 25-409 petition once paternity had been adjudicated.
¶16 Miller also argues that Nunnink's petition under § 25-409 is "fatally defective" for two reasons not addressed by the superior court. Because we may affirm a court's ruling "if it is correct for any reason apparent in the record," we briefly address these arguments. Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006).
¶17 First, Miller contends the petition fails to establish sufficient facts establishing Nunnink's in loco parentis status or "that the child would be exposed to significant detriment with continued custody placement," both of which are necessary to avoid summary dismissal. A court must "summarily deny" a § 25-409 petition unless the "petitioner's initial pleading establishes that all of the following are true:" (1) "[t]he person filing the petition stands in loco parentis to the child"; (2) "[i]t would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making"; (3) no court order "concerning legal decision-making or parenting time" has been entered in the year before the filing of the § 25-409 petition; and (4) as applicable here, the child's legal parents are unmarried at the time the petition is filed. § 25-409(A). A person may be considered in loco parentis if they have "been treated as a parent by a child and" have "formed a meaningful parental relationship with a child for a substantial period of time." § 25-401(1).
¶18 Although Nunnink's § 25-409 petition was limited to brief answers on a court-provided form for legal decision-making and parenting time, his initial petition made allegations that could establish the facts necessary to survive summary denial of the petition. See Chapman v. Hopkins, 243 Ariz. 236, ¶ 24 (App. 2017) ("Section 25-409(A) does not require that the initial petition contain uncontroverted evidence" for court to consider petition on merits). Nunnink stated that he stood in loco parentis as a father to Z.M. He further stated that Z.M. had lived at his residence for "3 years, since birth." These statements support his assertion that he stands in loco parentis to Z.M., as required under § 25-409(A)(1).
¶19 Nunnink also asserted in his petition that Miller had been convicted of a drug offense or of driving under the influence within the past twelve months and he believed Miller would benefit from "drug counseling or [an]other 12 step drug program." This satisfied the requirement under § 25-409(A)(2) that he show it "would be significantly detrimental to the child to remain" under Miller's exclusive legal decision-making authority.
¶20 He satisfied the requirements of § 25-409(A)(3) by indicating that he knew of no other legal decision-making or parenting time orders in place for Z.M. And, Nunnink implicitly stated that he and Miller were not married at the time of Z.M.'s birth by proceeding to file the form, which contained a clear warning that it was an improper form if the parties were married at the time of the minor child's birth.
¶21 After he filed the petition, Nunnink amplified and supported its allegations through a document he titled "Affidavit, Familial Relations." The affidavit stated, among other things, that Nunnink and Miller had cohabitated before and after Z.M.'s birth, that Nunnink had provided "shelter, food, [and] financial support" for Z.M. and Miller during the pregnancy, and that he and Miller had "brought [Z.M.] home as new parents" after the birth. He further attested that the family had continued to live together, treating Z.M. as their daughter, until 2023. Although not filed contemporaneously with the § 25-409 petition, we see no reason why this evidence should not inform the superior court's consideration of whether Nunnink had adequately shown that he stood in loco parentis to Z.M. under § 25-409(A). See Chapman, 243 Ariz. 236, ¶ 24 (allegations set forth in petition and supported by accompanying affidavit sufficient to prevent summary dismissal under § 25-409); see also Ariz. R. Fam. Law P. 24(d) ("Pleadings must be construed so as to do substantial justice.").
¶22 In the alternative, Miller argues the petition is fatally defective because Nunnink could not establish his in loco parentis status continued at the time he filed the § 25-409 petition. Miller observes that she had moved Z.M. out of Nunnink's house before he filed the petition for third-party rights. Such factual determinations are for the superior court, not the appellate court, to make. See Logan B. v. Dep't of Child Safety, 244 Ariz. 532, ¶¶ 18-19 (App. 2018) (superior court, not appellate court, in best position to make factual findings, including weighing evidence and making credibility determinations). Therefore, we remand this matter for the superior court to consider whether Nunnink may prevail on his § 25-409 petition. See Stein v. Stein, 238 Ariz. 548, ¶ 12 (App. 2015) (where possible, reviewing court should remand case to superior court for further factual findings).
Miller cites an unpublished case in support of this proposition. See Smith v. Williams, No. 1 CA-SA 22-0145, ¶¶ 18-20 (Ariz. App. June 1, 2023) (mem. decision). Although we decline to determine whether Nunnink stood in loco parentis to Z.M., we note that Smith would provide little guidance for this case. In Smith, the party seeking in loco parentis status had not lived with the child in question for about eighteen months. Id. ¶ 19. Here, Nunnink filed his petition about one month after Miller and Z.M. moved out of his residence.
Nunnink also argues Miller lacks standing "to legally oppose [his] assertion and interest in maintaining his status, rights, and relations" under § 25-409. However, the standing doctrine applies to plaintiffs, the initiators of any given legal action. See, e.g., Bennett v. Napolitano, 206 Ariz. 520, ¶ 16 (2003) ("persons seeking redress in the courts" must "establish standing"). It does not prevent individuals from defending themselves once legal action is commenced against them.
Disposition
¶23 For the foregoing reasons, we affirm in part and vacate in part the entry of summary judgment and remand this matter so the superior court may consider the petition for third-party rights arising under § 25-409. As the prevailing party, Nunnink is entitled to his costs on appeal, subject to his compliance with Ariz. R. Civ. App. P. 21(b).