Gutierrez v. Gutierrez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KELLY GUTIERREZ, Petitioner/Appellee,
v.
RAY O. GUTIERREZ, Respondent/Appellant.
No. 1 CA-CV 13-0553
FILED 06-17-2014
Appeal from the Superior Court in Apache County
No. S0100DO201300047
The Honorable Donna J. Grimsley, Judge
JURISDICTION GRANTED, RELIEF DENIED
COUNSEL
Law Office of Marsha Gregory, PC, Springerville
By Marsha Ann Gregory
Counsel for Petitioner/Appellee
Hamblin Law Office, PLC, Eager
Bryce M. Hamblin
Counsel for Respondent/Appellant
GUTIERREZ v. GUTIERREZ
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined.
K E S S L E R, Judge:
¶1 Ray O. Gutierrez (“Husband”) appeals from an order in
which the superior court ruled neither Husband nor his wife, Kelly
Gutierrez (“Wife”) were the legal parents of a child, T., whom they had
raised since T.’s birth in 2007. Husband appeals from the superior court’s
consolidation of the parties’ dissolution action with Wife’s petitions to
adopt T. and sever the parental rights of T.’s biological mother. Husband
also appeals the award of temporary shared custody of T. For the
following reasons, we exercise our discretion to treat Husband’s appeal as
a petition for special action and accept jurisdiction, but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Wife wed in 2004 and had two children
together in 2008 and 2009. In 2007, the parties informally “adopted” T.
when his biological mother agreed to place T. with the parties. T.’s
biological mother signed a consent for Wife to adopt T. Husband is not
listed on the consent to adopt, but was listed on T.’s birth certificate
despite Husband admittedly not being T.’s biological father. The record
contains no information about T.’s biological father. The parties have
raised T. since his birth with no contact or support from his biological
parents.
¶3 Wife petitioned for dissolution of the marriage and sought
joint legal decision-making and primary parenting time of the parties’ two
biological children, as well as T. 1 The same day she filed her petition for
dissolution, Wife also filed a petition to terminate the biological mother’s
parental relationship with T. The superior court consolidated the
1 Effective January 1, 2013, the term “custody” was replaced with
“legal decision-making.” See Ariz. Rev. Stat. (“A.R.S.”) § 25-402 (Supp.
2013).
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dissolution and severance actions. In response to the dissolution petition,
Husband asserted he was T.’s legal parent.
¶4 At a temporary orders hearing, Husband admitted he was
not T.’s biological father. The superior court concluded it had jurisdiction
to issue temporary orders relating to T. because it was in the best interest
of the child to have such orders in place despite Husband’s jurisdictional
objections. The court ordered the parties to temporarily share parenting
time with T. and submit briefs addressing the court’s jurisdiction over T.
¶5 After the temporary orders hearing, Wife filed a petition to
adopt T. After receiving the parties’ briefs, the court held a second
hearing and found neither party had legally adopted T. and Husband was
not T.’s biological father. The superior court noted the parties might have
to amend their pleadings to seek legal decision-making or placement with
a third party because neither party was the legal parent. The court also
ruled the petitions for severance and adoption were moot and vacated
further proceedings in the adoption matter because neither party was the
biological or legal parent of T. The temporary orders relating to T.
remained in place. Husband filed a notice of appeal from this order.
DISCUSSION
I. Appellate Jurisdiction
¶6 Husband filed a notice of appeal from the order finding that
he was not the legal parent of T. and awarding Wife temporary legal
decision-making and parenting time with T. Although neither party has
raised the issue, “we are obligated to examine our appellate jurisdiction
sua sponte.” Lally v. Lally, 228 Ariz. 269, 270, ¶ 3, 265 P.3d 1068, 1069 (App.
2011). Husband contends this Court has appellate jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(3) (Supp. 2013),
which states an appeal may be taken from an “order affecting a
substantial right made in an action when the order in effect determines the
action and prevents judgment from which an appeal might be taken.”
Typically, A.R.S. § 12-2101(A)(3) applies to orders of dismissal. See Garza
v. Swift Transp. Co., Inc., 222 Ariz. 281, 284, ¶¶ 14-16, 213 P.3d 1008, 1011
(2009). The order at issue here did not prevent a judgment because it
anticipated further rulings as to legal decision-making and parenting time
with T. Furthermore, the legal decision-making and parenting time order
Husband seeks to appeal is temporary and, therefore, not appealable. See
Villares v. Pineda, 217 Ariz. 623, 625, ¶ 11, 177 P.3d 1195, 1197 (App. 2008)
(holding temporary orders are not appealable).
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¶7 “In the exercise of our discretion, however, we may elect to
treat an appeal as a petition for special action, despite our lack of appellate
jurisdiction.” Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 594, ¶
16, 161 P.3d 1253, 1258 (App. 2007). “We elect to do so here and accept
special action jurisdiction because there is no equally plain, speedy, and
adequate remedy by appeal and some of the issues raised are purely legal
in nature.” Id. (quotations and citations omitted).
II. Consolidation of Dissolution, Severance, and Adoption Actions
¶8 Husband argues the superior court erred by consolidating
Wife’s severance and adoption petitions with the dissolution action
because there were no common issues or parties in the three actions. We
disagree.
¶9 Both parties in the dissolution action claimed to have legal
rights to the child. Husband claimed he was a legal parent, and Wife
based her claim on the fact that she raised the child since birth. Although
the severance and adoption petitions presented different legal issues than
those presented in the dissolution petition, the proceedings involved the
common issues of Husband and Wife’s legal status as to T., the
appropriate placement of T., and the possible need for orders, at the
conclusion of the dissolution action, concerning custody and parenting
time of and child support for T. Judicial economy favors consolidation
under these circumstances. Cf. Maricopa Cnty. Juv. Action No. A-27789, 140
Ariz. 7, 9, 680 P.2d 143, 145 (1984) (“In light of [these] overlapping
interests and issues, principles of judicial economy mandate that the . . .
proceedings be consolidated.”).
¶10 Additionally, in Arizona the “superior court is a single
unified trial court of general jurisdiction. The superior court may
maintain separate departments for different kinds of cases, but such
administrative organization does not partition the court’s general subject
matter jurisdiction.” Rinegar v. Rinegar, 231 Ariz. 85, 88, ¶ 13, 290 P.3d
1208, 1211 (App. 2012) (quotation and citations omitted). Thus, it was
appropriate to consolidate the dissolution, adoption, and severance
petitions that involved the same child.
III. Presumption of Paternity
¶11 The superior court ruled Husband was not T.’s legal parent
despite Husband being named as the father on T.’s birth certificate.
Husband argues he is presumed to be T.’s father because his name is on
the birth certificate. “A man is presumed to be the father of a child if . . .
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[a] birth certificate is signed by the mother and father of a child born out
of wedlock.” A.R.S. § 25-814(A)(3) (2007). This presumption can be
rebutted, however, by clear and convincing evidence. A.R.S. § 25-814(C).
Husband admitted under oath that he was not T.’s biological father. This
constitutes clear and convincing evidence sufficient to rebut the
presumption of paternity.
¶12 Husband contends the time to rebut this presumption has
passed. Husband argues the presumption is similar to a voluntary
acknowledgment of paternity, which can only be challenged up to six
months after a sixty-day rescission period has passed. See A.R.S. § 25-
812(E) (Supp. 2013); Andrew R. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 453,
457-58, ¶ 19, 224 P.3d 950, 954-55 (App. 2010). We disagree.
¶13 There is no evidence Husband submitted a voluntary
acknowledgement of paternity and Husband cites no authority for
treating a birth certificate in the same manner as a voluntary
acknowledgment. A voluntary acknowledgement of paternity may be
rescinded within sixty days and may be challenged after that sixty-day
period pursuant to Arizona Rule of Family Law Procedure 85(c). A.R.S. §
25-812(E), (H). In Andrew R., this Court held that a challenge to a
voluntary acknowledgment of paternity must be made within the six-
month time period set forth in Rule 85(c). 223 Ariz. at 457-58, ¶ 19, 224
P.3d at 954-55
¶14 Conversely, A.R.S. § 25-814 imposes no time limits on the
ability to rebut the presumption of paternity arising from a birth
certificate. In the absence of such language, we presume the legislature
was aware of its ability to impose such a limitation, but chose not to do so.
We determine the intent of the legislature by looking at the plain wording
of the statute at issue. Andrew R., 223 Ariz. at 457, ¶ 16, 224 P.3d at 954.
Thus, the superior court properly concluded the presumption of paternity
arising from Husband’s name on the birth certificate was rebutted by clear
and convincing evidence when Husband admitted under oath he was not
T.’s biological father.
¶15 Husband also argues Wife lacked standing to challenge the
presumption of paternity because she is not a proper party to a paternity
action. Husband cites A.R.S. § 25-803(A) (Supp. 2013), which identifies
those who may commence proceedings to establish paternity. However,
this is not an action to establish paternity. Husband asserted the paternity
presumption in the dissolution action. Wife challenged the presumption
in defense of Husband’s claim that Wife had no legal rights to T. We
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conclude A.R.S. § 25-803(A) does not bar Wife from rebutting the
presumption in this case, where Husband raised the issue of paternity
first, and a determination as to T.’s paternity is central to how the court
addresses the balance of many of the issues before it.
IV. Award of Visitation to Wife
¶16 Husband next argues the superior court lacked jurisdiction
to award Wife any visitation with T. because T. was not a child common
to the marriage. Wife argues the court could award legal decision-making
or placement of T. to Wife, a third party who, pursuant to A.R.S. § 25-409
(Supp. 2013), stands in loco parentis to the child. Relying on A.R.S. § 25-
402(B)(2) (Supp. 2013) (authorizing non-parent’s request for legal decision-
making and parenting time of a child pursuant to A.R.S. § 25-409), and
Finck v. O’Toole, 179 Ariz. 404, 406, 880 P.2d 624, 626 (1994), Husband
contends the superior court could not exercise jurisdiction pursuant to
A.R.S. § 25-409 because Wife had not filed a petition pursuant to that
statute.
¶17 Finck is distinguishable. In Finck, step-grandparents were
not entitled to an award of visitation as third parties under the law as it
then existed. 179 Ariz. at 407, 880 P.2d at 627. Here, Wife cited to A.R.S. §
25-415(G)(1), the predecessor to A.R.S. § 25-409, in responding to
Husband’s jurisdictional brief. Section 25-409(A) authorizes an award of
legal decision-making or placement to a person standing in loco parentis to
the child. After concluding neither party was a legal parent, the superior
court indicated it would proceed with custody issues, but the parties
would need to amend their pleadings to incorporate the in loco parentis
basis.
¶18 Further, although Wife’s pleadings did not explicitly raise
A.R.S. § 25-409, the superior court could find the issue was implicitly
raised. Arizona Rule of Family Law Procedure 34(B) states “[w]hen issues
not raised by the pleading are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.” Although Husband did not expressly consent to the court
invoking A.R.S. § 25-409, Husband can only seek legal decision-making or
visitation with T. by virtue of that section because he is not a legal parent.
We presume, then, Husband would consent to the superior court
awarding temporary joint legal decision-making and visitation to the
parties pursuant to A.R.S. § 25-409. Regardless of such consent, we
conclude A.R.S. § 25-409 was adequately raised by Wife’s pleadings and
the facts before the superior court.
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Decision of the Court
¶19 Wife’s petition for dissolution contained all the factual
allegations required by A.R.S. § 25-409(A), which provides the court shall
deny a third party’s petition for legal decision-making or visitation unless
the petition establishes: (1) the petitioner stands in loco parentis to the
child; (2) it would be significantly detrimental to the child to remain in the
care of a legal parent who seeks to keep or acquire legal decision-making;
(3) a court has not entered legal decision-making orders within one year of
the petition; and (4) the child’s legal parents are not married to each other
at the time the petition was filed. 2 Wife’s petition alleged the parties
raised T. since birth, along with two children common to the parties, and
there have been no other proceedings regarding T. or the parties’ other
children. Wife incorporated into her dissolution petition her severance
petition, which alleged the biological father was unknown and the
biological mother has abandoned the child, failed to maintain a
relationship with the child, and failed to provide any financial or
emotional support to the child. These allegations establish all the
elements required by A.R.S. § 25-409(A). Thus, Wife’s petition for
dissolution, in which she requested joint legal decision-making and
parenting time with T., sufficiently raised the issue of legal decision-
making and placement pursuant to A.R.S. § 25-409.
¶20 Additionally, Wife’s petitions for severance and adoption
were before the court. Wife argues the court had authority to award her
legal decision-making pursuant to A.R.S. § 25-1002(4)(a) (Supp. 2013),
which defines a child custody proceeding to include a proceeding for
termination of parental rights. 3 Thus, the court had authority to enter
orders based on the severance petition. We also note A.R.S. §§ 25-1031
(2007) and -1034(A) (2007) authorize the court to make an initial child
custody determination and exercise temporary emergency jurisdiction to
make such a determination. “Child custody determinations” include
temporary orders for “legal custody, physical custody or visitation with
respect to a child.” A.R.S. § 25-1002(3)(a). These statutes also support the
superior court’s temporary placement order.
2 Section 25-409(A)(4) includes two other alternative bases that are not
applicable here.
3 Because Wife’s severance and adoption petitions were also before
the superior court, we find Finck distinguishable. 179 Ariz. at 406, 880
P.2d at 626. Unlike Wife, the step grandparents in Finck had not sought a
child custody determination under the juvenile statutes, which might
otherwise provide the necessary authority. Id.7
GUTIERREZ v. GUTIERREZ
Decision of the Court
V. Attorneys’ Fees and Costs on Appeal
¶21 Both parties request an award of attorneys’ fees on appeal
without citation to any legal authority for such an award. A general
request for an award of attorneys’ fees on appeal without citation to
statutory or case law authority supporting that request does not comply
with the requirement that all claims for attorneys’ fees “must specifically
state the statute, rule, decisional law, contract, or other provision
authorizing an award of attorneys’ fees.” ARCAP 21(a)(2). Accordingly,
we deny both parties’ requests. See Parkway Bank & Trust Co. v. Zivkovic,
232 Ariz. 286, 292, ¶ 24, 304 P.3d 1109, 1115 (App. 2013). However, we
award Wife taxable costs on appeal pursuant to A.R.S. § 12-341 (2003)
upon timely compliance with ARCAP 21.
CONCLUSION
¶22 We exercise our discretion to treat Husband’s appeal as a
petition for special action and accept jurisdiction. We deny relief, thereby
affirming the consolidation of the dissolution, severance, and adoption
proceedings; the finding that Husband is not T.’s legal parent; and the
award of temporary shared custody to Husband and Wife. We deny both
parties’ requests for an award of attorneys’ fees on appeal. 4
:gsh
4 The superior court’s later ruling that the severance and adoption
petitions were moot and its order vacating the adoption proceedings are
not before us and, therefore, we need not address the merits of those
issues. We note, however, in light of the superior court’s determination
that neither party was a biological or legal parent to T., Mother’s adoption
petition, rather than being moot, might have been premature until both
biological parents’ rights are severed and Mother obtains proper
certification. See A.R.S. §§ 8-105 (2014), -106 (2014).
8