Opinion
2 CA-CV 2022-0017
04-18-2023
The State of Arizona, ex rel. The Department of Economic Security, Petitioner/Appellee, v. Amr A. Sonbol, Respondent/Appellant.
Kristin K. Mayes, Arizona Attorney General By Jennifer R. Blum, Assistant Attorney General, Tucson Counsel for Petitioner/Appellee Amr A. Sonbol, Humble, Texas In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Graham County No. DO2001189 The Honorable Michael D. Peterson, Judge
Kristin K. Mayes, Arizona Attorney General By Jennifer R. Blum, Assistant Attorney General, Tucson Counsel for Petitioner/Appellee
Amr A. Sonbol, Humble, Texas In Propria Persona
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Amr Sonbol appeals from the trial court's denial of his motion to set aside a 2001 judgment establishing his paternity of A.S. and ordering him to pay child support. Sonbol maintains the 2001 judgment is "void" because his voluntary acknowledgment of paternity, upon which it was based, is "invalid." For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. Alvarado v. Thomson, 240 Ariz. 12, n.1 (App. 2016). In 1998, Sonbol and Leslie Thaler met and engaged in sexual intercourse shortly thereafter. Thaler gave birth to A.S. on March 27, 1999. The following year, Sonbol and Thaler ended their relationship, and Sonbol moved out of Arizona. In 2001, the Arizona Department of Economic Security (ADES) initiated a proceeding to establish child support, asserting that paternity had been established "pursuant . . . to A.R.S. §§ 25-812, 36- 322 or 25-809." Sonbol appeared at a subsequent hearing, and the trial court determined that he was the father of A.S. pursuant to a determination of paternity entered on January 21, 2000. Thereafter, the court entered a judgment on September 6, 2001, ordering Sonbol to pay past and ongoing child support.
¶3 In 2004, Sonbol challenged the paternity determination and asked the trial court to order a paternity test. At a hearing in 2005, the court heard testimony and then found that "the document presented by the state was a signed and notarized document from the hospital paternity program acknowledging paternity by [Sonbol] for the child born January 21, 2000." The court determined that, under A.R.S. § 25-812(H), the sixty days for withdrawing a paternity acknowledgment had lapsed and Sonbol was therefore prohibited from doing so. The court reconfirmed the paternity order establishing Sonbol as the father of A.S. Lastly, the court declined to order genetic testing but explained that the parties could pursue it privately. Sonbol did not appeal, and the record does not reflect that he arranged for a paternity test following the 2005 hearing.
Although A.S. was born on March 27, 1999, the parties seem to agree that the trial court was referring to A.S. The notarized acknowledgment of paternity is not part of our record on appeal, but it is evident the court reviewed it in 2005.
¶4 In 2018, after A.S. had reached the age of majority, Sonbol filed a petition to reduce his child support obligation. He attached paperwork demonstrating his inability to renew his passport due to his child support arrearages. The trial court did not reduce Sonbol's child support obligation but ordered Sonbol to submit tax returns and bank statements to the Department of Child Support Services, which would then submit the documentation to the passport unit.
¶5 In 2021, Sonbol filed a motion to set aside the September 6, 2001 judgment, arguing the acknowledgment of paternity had been falsified, constituted "fraud upon the court," and violated his due process rights. Sonbol maintained the time limits imposed by A.R.S. § 25-812(E) and Rule 85, Ariz. R. Fam. Law P., did not apply. On the same day, a third party named Tarek Khorshid filed, under this cause number, a petition to establish paternity and a request for genetic testing, predicated on his belief that he might be A.S.'s father. In a form response to Khorshid's petition, Thaler checked a box stating, "Mother was married when minor child(ren) were born or conceived . . . but husband is not the father of minor child(ren)." Sonbol then filed a second motion to set aside the 2001 judgment, arguing that Thaler had been married at the time A.S. was conceived, the requirements of A.R.S. §§ 25-812(A)(1) and 25-814(B) were not met, the acknowledgment of paternity was invalid, and the 2001 judgment was therefore void.
¶6 The trial court denied Sonbol's motions as untimely and struck Khorshid's petition and filings, finding it lacked jurisdiction to order a paternity test for the twenty-two-year-old A.S. The court also noted that even if the 2001 judgment were vacated, Sonbol would receive no relief from his $233,000 in child support arrears pursuant to § 25-812(E). This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12- 120.21(A)(1) and 12-2101(A)(1).
Discussion
¶7 As he did below, Sonbol argues on appeal that his acknowledgment of paternity was "invalid" because Thaler admitted "she was married during the time [A.S.] was conceived." And "[w]ithout a valid determination of paternity," Sonbol reasons that the trial court lacked the legal authority and jurisdiction to enter the 2001 judgment, rendering it "void." He therefore suggests the court erred in denying his motion to set aside that judgment. We review the denial of a motion to set aside a judgment for an abuse of discretion. Alvarado, 240 Ariz. 12, ¶ 11.
¶8 A judgment is void only if the deciding court lacked jurisdiction: "(1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered." Martin v. Martin, 182 Ariz. 11, 15 (App. 1994). A motion to set aside may be brought against a "void" judgment at any time. See Angelica R. v. Popko, 253 Ariz. 84, ¶ 14 (App. 2022). However, if the court's jurisdiction is proper, an order is merely "voidable" and would be "subject to reversal on timely direct appeal." State v. Bryant, 219 Ariz. 514, ¶ 13 (App. 2008) (quoting Cockerham v. Zikratch, 127 Ariz. 230, 234 (1980)).
¶9 A judgment that is voidable "is binding and enforceable," State v. Cramer, 192 Ariz. 150, ¶ 16 (App. 1998), and "[e]ven an erroneous judgment is conclusive between the parties," Ariz. Downs v. Superior Court, 128 Ariz. 73, 76 (1981). The central difference between a judgment that is void and one that is voidable "is their legal effect and susceptibility to challenge." Shinn v. Arizona Bd. of Exec. Clemency, 254 Ariz. 255, ¶ 26 (2022).
¶10 Furthermore, a man is presumed to be the father of a child if a notarized or witnessed statement is signed by both parents acknowledging paternity. § 25-812(A)(1); Johnson v. Edelstein, 252 Ariz. 230, ¶ 13 (App. 2021) ("'[T]he parent of a child born out of wedlock may establish the paternity of a child' by filing a signed, witnessed (or notarized) voluntary acknowledgment of paternity with the court or with specified state agencies." (quoting § 25-812(A)). Once this signed acknowledgment is filed with the state, it "is a determination of paternity and has the same force and effect as a superior court judgment." § 25-812(D).
¶11 Individuals who sign a voluntary acknowledgment of paternity may withdraw their acknowledgment for any reason "within the earlier of" either the date of a proceeding relating to the child or sixty days after the final signature is placed on the acknowledgment of paternity. § 25- 812(H)(1), (2). After that, an acknowledgment of paternity can be withdrawn only under "limited grounds and for a limited time" under § 25- 812(E). Johnson, 252 Ariz. 230, ¶ 14. An attempted withdrawal can only prevail for reasons of "fraud, duress or material mistake of fact" and must be brought within a period of six months. § 25-812(E); see Ariz. R. Fam. Law P. 85(c)(1). After that six-month period ends, it can then be challenged only under exceptional circumstances, such as fraud on the court. Johnson, 252 Ariz. 230, ¶ 14.
¶12 It is undisputed that Sonbol failed to rescind his acknowledgment of paternity within the sixty-day time period under § 25- 812(H)(1) and (2) or to challenge its validity during the six-month window provided by § 25-812(E). Nevertheless, he argues the determination of paternity is fraudulent and invalid because of a box checked by Thaler in a form response, wherein Thaler indicated, "Mother was married when minor child(ren) were born or conceived . . . but husband is not the father of minor child(ren)." Even if this argument were not time barred, Sonbol failed to present any additional evidence to support his claim that Thaler was married at the time A.S. was conceived. See § 25- 814(B).
Section 25-814(B) provides that if another man is presumed to be a child's father under subsection (A), "an acknowledgment of paternity may be effected only with the written consent of the presumed father or after the presumption is rebutted."
¶13 Additionally, as the trial court correctly pointed out, even assuming Sonbol was entitled to set aside the paternity determination, he is not entitled to have the child support arrearages vacated. See § 25-812(E) ("An order vacating the determination of paternity operates prospectively only and does not alter the obligation to pay child support arrearages ...."). Because Sonbol failed to challenge the paternity determination within the timeframe required by Rule 85, his claim that the 2001 judgment is void necessarily fails.
Attorney Fees
¶14 Sonbol has requested his fees and costs on appeal. But he has not directed us to any authority supporting such an award and he is not the prevailing party. We therefore deny his request.
Disposition
¶15 We affirm the trial court's ruling denying Sonbol's motion to set aside the 2001 judgment.