Opinion
2 CA-CV 2023-0140-FC
09-30-2024
Travis R. Jenkins, Petitioner/Appellant, v. Darbi M. Reichard, Respondent/Appellee.
Community Legal Services, Prescott By Martin J. Coleman and Bret Rasner Counsel for Petitioner/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. P1300DO202200222 The Honorable Cele Hancock, Judge The Honorable Michael P. McGill, Judge REVERSED AND REMANDED
Community Legal Services, Prescott
By Martin J. Coleman and Bret Rasner
Counsel for Petitioner/Appellant
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE:
¶1 Travis Jenkins appeals from the superior court's grant of summary judgment dismissing his petition to establish paternity, legal decision-making, and parenting time. For the following reasons, we reverse and remand the case for further proceedings consistent with this decision.
Factual and Procedural Background
¶2 When reviewing a superior court's decision on a motion for summary judgment, we view the facts and all reasonable inferences in the light most favorable to the non-moving party. See Eans-Snoderly v. Snoderly, 249 Ariz. 552, ¶ 7 (App. 2020).
¶3 Darbi Reichard gave birth to a child, A.M., in July 2021. Although she was married at the time, the child was conceived outside the marriage. Reichard's husband waived his spousal presumption of paternity, and in August 2021, Reichard signed an Acknowledgment of Paternity ("AOP") with Jeremy McMullen, recognizing him as A.M.'s legal father. In December 2021, the state sought to enforce McMullen's child support obligation.
¶4 In April 2022, Travis Jenkins, who also believed he had fathered A.M., filed a petition for paternity, legal decision-making authority, parenting time, and child support. Jenkins claimed not to have been a party to any prior court actions involving the legal decision-making authority or parenting time of A.M. and that he did not know of anyone else who had. Jenkins asserted in his petition that he and Reichard had sexual intercourse around the time A.M. was conceived and that he had lived with the child for some period after A.M. was born. He also requested that the court "relate [the] case" to the December 2021 petition for child support "to notify the State that paternity for the child is in question" and that Reichard "ha[d] committed fraud by failing to disclose all potential fathers and by intentionally falsifying [A.M.'s] birth certificate."
¶5 Reichard responded to Jenkins's petition for paternity with a motion for partial summary judgment, asserting paternity had already been established through the August 2021 AOP. The signing of the AOP, Reichard contended, had "the same force and effect" as a court judgment under A.R.S. § 25-812, and by statute, Jenkins had only six months after the AOP was signed to challenge it. Because Jenkins did not file his paternity action in time, Reichard claimed summary judgment was appropriate.
Under A.R.S. § 25-812(H)(1), a voluntary AOP may be rescinded by either parent within sixty days of the last signature being affixed to the acknowledgement. After sixty days, an AOP may be challenged "only on the basis of fraud, duress or material mistake of fact." § 25-812(E). However, after six months, an AOP can only be challenged on the basis of fraud upon the court. See Ariz. R. Fam. Law P. 85(c)(1), (d)(3).
¶6 In reply, Jenkins argued that his petition was timely, in part because Reichard had committed fraud upon the court, making the six-month limit under Rule 85(c)(1), Ariz. R. Fam. Law P., inapplicable. Jenkins asserted that the evidence supporting his claims-a sworn affidavit and attached exhibits-"create[d] material disputes of fact" that made summary judgment inappropriate.
¶7 In August 2022, the superior court granted Reichard's motion for partial summary judgment, concluding the paternity of A.M. had been established by the AOP in August 2021 and Jenkins's April 2022 petition had been untimely. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶8 Jenkins argues on appeal that the superior court erred in failing to discern issues of material fact that made summary judgment inappropriate. He asserts the record contains evidence that Reichard contacted Jenkins months before A.M. was born to inform him that he might be the father. This, Jenkins contends, shows Reichard signed the AOP knowing McMullen was not the only potential father while submitting to the court that he was, constituting fraud upon the court.
Jenkins makes additional arguments against the trial court's application of procedures pursuant to A.R.S. § 25-812(E) and Rule 85(c) and its interpretation of how days are counted when it ruled his paternity action was untimely. However, for the reasons below, we do not address them.
¶9 Additionally, Jenkins claims a privately obtained DNA test from September 2021 showed he was the natural father of the child. He asserts that Reichard consented to the test and was subsequently informed of the results. Jenkins further contends that Reichard had a sixty-day window pursuant to § 25-812(H) in which she could have withdrawn or amended her AOP filing, but did not. He argues her failure to "rescind the AOP after learning [he was] the father . . . shows she intentionally violated the oath she gave when she signed the AOP, and committed a fraud on the superior court."
¶10 Further, Jenkins contends that when the state later sought child support from McMullen, Reichard, by participating in that proceeding, "continued her willful disregard of the falsity of the AOP." He argues that "[i]ndividually and collectively[,] [Reichard]'s actions created disputes of material fact supporting . . . that [Reichard] committed fraud on the court."
¶11 Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Fam. Law P. 79(a). The party opposing summary judgment bears the burden of presenting evidence that creates a genuine issue of material fact. See Martin v. Schroeder, 209 Ariz. 531, ¶ 12 (App. 2005). Such evidence may include "affidavits . . . [that] set forth specific facts showing a genuine issue for trial." Ariz. R. Fam. Law P. 79(e). "A 'genuine' issue is one that a reasonable trier of fact could decide in favor of the party adverse to summary judgment on the available evidentiary record." Martin, 209 Ariz. 531, ¶ 12. We will reverse if, "after reviewing the entire record, a disputed issue of fact existed that would allow reasonable people to disagree with the conclusion advanced by the proponent of the motion." Fisher v. Maricopa Cnty. Stadium Dist., 185 Ariz. 116, 122 (App. 1995).
¶12 Here, the superior court considered the timing of Jenkins's filings, ruling that his petition to establish paternity, legal decision-making authority, and parenting time was not timely filed. And because Jenkins's petition was not filed within six months following the AOP as required by statute, the court concluded it "need not determine whether or not fraud ha[d] occurred." Further, nothing in the record reflects that the court made any other findings or conclusions on the matter, including on whether Reichard had committed fraud upon the court.
¶13 Fraud upon the court differs from common-law fraud, as fraud upon the court involves more than just injury to an individual-it is a "wrong against the institutions set up to protect and safeguard the public." McNeil v. Hoskyns, 236 Ariz. 173, ¶ 21 (App. 2014) (quoting HazelAtlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944), overruled on other grounds by Standard Oil Co. of Cal. v. United States, 429 U.S. 17 (1976)). Fraud upon the court allows for relief when a party has prevented "a real contest before the court of the subject matter of the suit." Id. ¶ 14 (quoting Dockery v. Cent. Ariz. Light &Power Co., 45 Ariz. 434, 450-51 (1935)). Thus, a court may set aside a judgment whenever a party "obtains a judgment by concealing material facts and suppressing the truth with the intent to mislead the court." Cypress on Sunland Homeowners Ass'n v. Orlandini, 227 Ariz. 288, ¶ 42 (App. 2011). This may be done without regard to statutory time limits. See Johnson v. Edelstein, 252 Ariz. 230, ¶¶ 14, 22 (App. 2021) (fraud upon the court is "only avenue for relief" after six-month period pursuant to § 25-812(E) and Rule 85(c)); Ariz. R. Fam. Law P. 85(d)(3) (Rule 85 does not limit power of court to "set aside a judgment for fraud on the court").
Jenkins argues that our decision in Brummond v. Lucio, 243 Ariz. 360, ¶¶ 18, 21 (App. 2017), which concluded the six-month time limit did not apply to biological fathers who challenge an AOP by filing a petition for paternity under A.R.S. § 25-803(A)(2), should apply here. However, this conclusion conflicts with Roger S. v. James S., 251 Ariz. 555, ¶ 17 (App. 2021), in which we concluded that a Rule 85 motion, made within "six months of the entry of the judgment," "alleging fraud, duress, or mistake of fact" is the only means to challenge an AOP. Neither case addresses the issue of fraud upon the court or the Rule 85(d)(3) exception. See id. ¶¶ 16-17; Brummond, 243 Ariz. 360, ¶¶ 11-21. As such, we decline to resolve this conflict, relying instead on the Rule 85(d)(3) exception.
¶14 Viewed in the requisite light most favorable to Jenkins, we conclude reasonable minds could differ on whether Reichard's knowledge and actions existed and whether fraud upon the court occurred. See Fisher, 185 Ariz. at 122; see also Clark v. Kreamer, 243 Ariz. 272, ¶¶ 13-14 (App. 2017) (recognizing a fraudulent acknowledgment of paternity as fraud upon the court). Jenkins presented support for his claims in opposing summary judgment, and the issue was disputed, as evidenced by Reichard's denial of Jenkins's claims in her Reply in Support of Motion for Summary Judgment. See Ariz. R. Fam. Law P. 79(e) (allowing affidavits to oppose summary judgment). Thus, the superior court erred in granting Reichard's motion for summary judgment. See Ariz. R. Fam. Law P. 79(a); Ariz. R. Civ. P. 56(a); N. Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 376 (1977) ("Even if there is no factual dispute, where possible inferences to be drawn from the circumstances are conflicting, a summary disposition is unwarranted."). Accordingly, we reverse and remand the case to the court for consideration of these remaining issues.
Because Reichard has failed to file an answering brief, and because Jenkins raises contestable issues, we also conclude there has been a confession of error, which provides an additional basis for reversal and remand. See Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980); Welch v. United Mut. Benefit Ass'n, 48 Ariz. 173, 174-75 (1936). However, because this case involves the best interests of a child, we address the merits above. See Solomon v. Solomon, 5 Ariz.App. 352, 354 (1967) (declining to treat lack of appellee answer as confession of reversible error where case involved child custody).
Attorney Fees
¶15 On appeal, Jenkins requests his attorney fees pursuant to A.R.S. § 25-324 and Rule 21, Ariz. R. Civ. App. P. In our discretion, we deny his request. However, as the prevailing party, Jenkins is entitled to his costs upon compliance with Rule 21(b).
Disposition
¶16 For the foregoing reasons, we reverse and remand the case to the superior court for further proceedings consistent with this decision.