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Alvarado v. Thompson

Court of Appeals of Arizona, First Division

May 31, 2016


         Petition for Special Action from the Superior Court in Maricopa County No. FC2015-050860 The Honorable Peter A. Thompson, Judge

          Ellsworth Family Law, P.C., Mesa By Spencer T. Schiefer Counsel for Petitioner

          Davis Miles McGuire Gardner PLLC, Tempe By Douglas C. Gardner Counsel for Real Parties in Interest

          Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.


          THUMMA, Judge

         ¶1 The core issue in this special action is whether the superior court properly found that intentionally creating and using a fraudulent acknowledgment of paternity, listing the wrong biological father to avoid the adoption process, constitutes a fraud upon the court. Because the fraudulent acknowledgment circumvented a best-interests assessment, the court properly found it was a fraud upon the court. The court also did not err in denying a motion to set aside its finding based on alleged misconduct that purportedly kept the birth mother from testifying at an evidentiary hearing. Accordingly, although accepting special action jurisdiction, this court denies relief.


         ¶2 In 2011, Vanessa Trujillo told Nicholas Murrietta she was pregnant with his child and she intended to give the child up for adoption. When Murrietta asked about paternity testing, Trujillo got angry and cut off contact with him.

         ¶3 Sometime after the child's birth in November 2011, Trujillo told Murrietta the child had been adopted but refused to disclose the child's location or adoptive family. In fact, however, Trujillo never placed the child for adoption. Instead, Petitioner Ernest Alvarado, and his wife Yvette Alvarado, paid Trujillo to list Ernest as the child's father on an acknowledgement of paternity. Signed by Trujillo and Ernest the day after the birth, the acknowledgement declared "under penalty of perjury" that Ernest was the child's father. They then filed the acknowledgement with the Arizona Department of Economic Security (DES) and used it to obtain a birth certificate listing Ernest as the child's father. Ernest told Yvette that he was not the biological father but that he paid Trujillo to give them the child and placed his name on the acknowledgment so that he would be on the child's birth certificate. The Alvarados then raised the child as their own without apparent incident for three years.

         ¶4 In December 2014, Ernest filed for divorce, stating the couple had no minor children. Yvette responded that the couple had raised a minor child "as their own" and Ernest was "the legal father, " because he was listed on the birth certificate, but was not the biological father. In early 2015, at Yvette's request, Trujillo asked Murrietta to take a paternity test. Only then did Murrietta learn that the child had never been adopted.

         ¶5 The paternity test confirmed that Murrietta is the child's biological father. Murrietta then moved to set aside the acknowledgement of paternity pursuant to Arizona Revised Statutes (A.R.S.) section 25-812(E) (2016)[2] and Ariz. R. Fam. Law P. 85(C). Murrietta argued that the acknowledgment was fraudulent and that it was a fraud upon the court. Ernest argued the motion was time-barred because it was filed more than six months after the signing of the acknowledgment.

         ¶6 At a November 2015 evidentiary hearing, the superior court heard testimony from Ernest, Yvette, Murrieta and others, although not from Trujillo. In a detailed minute entry filed later in November 2015, the court granted Murrieta's motion. The court found Trujillo and Ernest "sign[ed] an 'acknowledgment of paternity' when they both knew full well that [Ernest] was not the father" and Ernest "sought to avoid the adoption process, which would have required due process and notification to [Murrietta, ] the biological father." The court found Murrietta was "fully capable" of caring for the child and "[t]he best interest of the child will be best met by setting aside the fraudulent Acknowledgement of Paternity and allowing for paternity to be established by genetic testing."

         ¶7 Quoting A.R.S. § 25-812(D), the court noted that an acknowledgement of paternity "has the same force and effect as a superior court judgment." The court found "[o]btaining a judgment of paternity by falsifying information under oath to the Court establishes fraud upon the Court, " which is not subject to the six-month time limit set forth in Rule 85(C)(2).

         ¶8 Alternatively, the court tolled the six-month limit governing a challenge to an acknowledgment of paternity "on the basis of fraud, duress or material mistake of fact." A.R.S. § 25-812(E); see also Ariz. R. Fam. Law P. 85(C)(3) (requiring such a challenge to be made "not more than six (6) months after the judgment or order was entered"). The court found this six-month period "presupposes" the party "had service and due process and [is] aware of the case and the orders entered in that case." The court found tolling "is appropriate, as the six-month time period can only begin when [Murrietta had] service and notice of the case;" to conclude otherwise "would be a violation of his due process rights." After granting Murrietta's motion, the court ordered the parties to take action to list Murrietta (not Ernest) as the father on the child's birth certificate.

         ¶9 In January 2016, Ernest moved to set aside the November 2015 ruling, asserting recently discovered misconduct by Yvette prevented Trujillo from testifying at the evidentiary hearing. After a hearing, the superior court denied the motion to set aside. The court also stayed the ...

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