from the Superior Court in Pinal County No. DO201600635 The
Honorable Karl C. Eppich, Judge
Gregory A. Riebesehl, Phoenix Counsel for
Espinosa authored the opinion of the Court, in which
Presiding Judge Staring and Judge Vásquez concurred.
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.
and Procedural Background
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.,  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  test report identifying appellant Chad
Brummond as C.D.'s biological father.
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.
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.
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.
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).
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).
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