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Brummond v. Lucio

Court of Appeals of Arizona, Second Division

November 30, 2017

Chad Primo Brummond, Petitioner/Appellant,
v.
Mona Lisa Lucio, Respondent/Appellee.

         Appeal from the Superior Court in Pinal County No. DO201600635 The Honorable Karl C. Eppich, Judge

          Gregory A. Riebesehl, Phoenix Counsel for Petitioner/Appellant

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.

          OPINION

          ESPINOSA, JUDGE.

         ¶1 In this appeal, we address a question of first impression raised by a father following the trial court's summary denial and dismissal of his petition for paternity-whether a biological father can bring a paternity action outside the time constraints of A.R.S. § 25-812(E) and Rule 85(C), Ariz. R. Fam. Law P., when someone else has signed a voluntary acknowledgment of paternity regarding his child. For the following reasons, we answer that question in the affirmative, reverse the trial court's ruling, and remand for further proceedings consistent with this opinion.

         Factual and Procedural Background

         ¶2 Shortly after C.D.'s birth in January 2014, the child's mother, Mona Lucio, and her boyfriend at the time, Charles Dittig, signed a voluntary acknowledgment of paternity identifying Dittig as the father. C.D.'s birth certificate also listed Dittig as the father. A little over two years later, Dittig filed a petition for paternity regarding C.D., [1] noting that although Lucio had informed him he was not C.D.'s biological father, he did not wish to challenge the acknowledgment of paternity. Lucio filed a response, asserting Dittig was "not the biological father" of CD. and asking the court to "deny any [and] all pleadings filed by [him]" regarding CD. on that basis. Included with Lucio's response was a DNA [2] test report identifying appellant Chad Brummond as C.D.'s biological father.

         ¶3 Lucio subsequently moved the trial court to order that C.D.'s birth certificate list Brummond as the father and that C.D.'s last name be changed to "Brummond." The court denied the motion, stating that "the statutory time limits to challenge paternity under Arizona law ha[d] passed." Later that month, Brummond filed his own petition for paternity asking the court to declare him C.D.'s legal father based on the DNA test.

         ¶4 In September 2016, Brummond additionally filed a motion to vacate the voluntary acknowledgment of paternity pursuant to § 25-812(E) and Rule 85(C), arguing it was based on Lucio's "material mistake of fact" in assuming Dittig was C.D.'s biological father. Brummond's motion was supported by affidavits executed by him and Lucio. In his affidavit, Brummond explained he was unaware of Lucio's pregnancy and C.D.'s birth until Lucio contacted him when CD. was two years old. Specifically, in March 2016, Lucio suspected Brummond was C.D.'s biological father; she contacted him that month and they performed the DNA test in April; and since then CD. had spent every weekend with Brummond, who paid child support to Lucio monthly. Lucio's affidavit further stated Dittig had contact with CD. during his first three months of life but "ha[d] not had significant contact with [him]" since then and none since March 2016.

         ¶5 Upon Brummond's request, the trial court consolidated his paternity action with that of Dittig. At an October 2016 hearing, the court continued the matter, noting, "if the parties wish[ed] to brief the issue of . . . whether or not Chad Brummond[']s Petition should be summarily dismissed for not being timely filed, then the parties [could] do so." Dittig and Brummond each filed a brief on the issue, Dittig arguing Brummond's motion to vacate the voluntary acknowledgment of paternity, and implicitly Brummond's paternity action itself, was time-barred by § 25-812(E) and Rule 85(C). Brummond argued those time restrictions did not apply to third-party biological fathers and instead A.R.S. § 25-804, which does not impose a time limit on paternity actions, controlled.

         ¶6 In November, the trial court heard arguments on Brummond's petition for paternity and motion to vacate the voluntary acknowledgment of paternity. In a signed minute entry, the court ruled that the acknowledgment "effectively precluded" Brummond's paternity action. The court then denied Brummond's petition for paternity and concluded he was "no longer a party to these proceedings." Brummond brought this appeal, over which we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

         Paternity

         ¶7 Brummond argues the trial court erroneously dismissed his paternity action as untimely under A.R.S. § 25-812(E), asserting either the statute, correctly interpreted, does not apply, or it violates his due process and equal protection rights. We first address the applicability of § 25-812(E), because if it does not bar Brummond's paternity action, we need not consider his constitutional argument. See Planned Parenthood Ariz., Inc. v. Am. Ass'n of Pro-Life Obstetricians & Gynecologists, 227 Ariz. 262, ¶ 15, 257 P.3d 181, 189 (App. 2011) ("The fundamental rule of judicial restraint is to avoid constitutional questions unless 'absolutely necessary' to decide the case."), quoting Webster v. Reprod. Health Servs., 492 U.S. 490, 526 (1989) (O'Connor, J., concurring).

         ¶8 Section 25-803(A), A.R.S., identifies five categories of persons or entities who may commence "[proceedings to establish the maternity or paternity of a child." "The father" is among those so entitled, § 25-803(A)(2), and we have previously noted that category "must have been intended to provide standing to commence a paternity action to a putative father, " or "[an] individual[] claiming to be [a child's] father[]." Ban v. Quigley,168 Ariz. 196, 199, 812 P.2d 1014, 1017 (App. 1990). Furthermore, A.R.S. § 25-804 broadly allows "[proceedings to establish the paternity of the child [to] be instituted during the pregnancy of the mother or after the birth of the child." Finally, A.R.S. § 25-814(A) lists independent factors raising presumptions of paternity: "A man is presumed to be the father of the child if" he was married to the mother "in the ten months immediately preceding the birth, " or "[g]enetic testing affirms at least a ninety-five per cent probability of paternity, " or he is listed as the father on the child's birth certificate, or "[a] notarized or witnessed statement is signed by both parents ...


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