ades/anderson v. Ayiyi ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC
SECURITY (BRITTANY MONIQUE ANDERSON), Petitioners/Appellees,
v.
OSAGINWEN KINGSLEY AYIYI, Respondent/Appellant.
No. 1 CA-CV 14-0689
FILED 8-20-2015
Appeal from the Superior Court in Maricopa County
No. FC2014-052171
The Honorable Julie P. Newell, Judge Pro Tempore, Retired
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Carol A. Salvati
Counsel for Petitioner/Appellee ADES
Knapp & Roberts, PC, Scottsdale
By David L. Abney
Counsel for Respondent/Appellant
ADES/ANDERSON v. AYIYI
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Kenton D. Jones joined.
J O H N S E N, Judge:
¶1 Several weeks after a child was born, the child's mother and
Osaginwen Kingsley Ayiyi signed a statement declaring Ayiyi was the
child's natural father. Both signatures were witnessed, and the executed
acknowledgment was filed with the Arizona Department of Economic
Security. Nearly nine years later, the State brought an action to establish
child support based on the acknowledgment of paternity. Ayiyi objected,
asserting he was not the biological father. Seeking court-ordered genetic
testing, he argued the acknowledgment of paternity was void due to fraud,
duress or material mistake of fact. The superior court held Ayiyi's protest
was time-barred and entered a child-support order.
¶2 We hold the challenge was untimely under Arizona Revised
Statutes ("A.R.S.") section 25-812 (2015).1 Although Ayiyi argues his
challenge was allowed by A.R.S. § 25-503(F) (2015), that statute does not
apply when, as here, an executed and witnessed acknowledgment of
paternity is filed with the State or with the superior court. Under the
relevant statutes, upon filing, an executed and witnessed acknowledgment
of paternity gains the force and effect of law, and may be undone only
pursuant to Arizona Rule of Family Law Procedure 85(C).
FACTS AND PROCEDURAL BACKGROUND
¶3 Brittany Monique Anderson ("Mother") gave birth to a child
in 2005. Several weeks later, she and Ayiyi executed a form titled "Arizona
Department of Economic Security (DES) Acknowledgment of Paternity."
As relevant here, the form provided:
1 Although this statute was amended after the relevant date, the
revisions are immaterial to the disposition of this appeal. Thus, we cite to
the current version of the statute.
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WE, the natural mother and natural father, declare and
acknowledge that the father named below is the only possible
father of the child named above. . . . WE, the natural mother
and natural father, declare that the information is true and
correct. We understand that by signing this acknowledgment
that we are giving up our right to a court hearing to determine
paternity as well as the right to have genetic testing done to
determine the parentage of this child. We further understand
we may have a right to challenge this acknowledgment as
outlined in A.R.S. § 25-812. A voluntary Acknowledgment of
Paternity filed with the DES or DHS has the same force and
effect as a Superior Court judgment pursuant to A.R.S. § 25-
812. We agree, that if it is deemed appropriate by DES, this
acknowledgment of paternity may be used to obtain a
paternity order in any Arizona county. We understand that
the entry of an order establishing paternity shall impose a
duty of support pursuant to A.R.S. § 25-501 et seq. as well as
other duties imposed by Arizona Law.
The form further provided that Mother and Ayiyi "hereby consent and
request that the birth certificate be amended" to reflect Ayiyi as the child's
father. Mother signed the form on August 31, 2005; Ayiyi signed the
following day. Both signatures were witnessed by someone apparently
associated with the hospital at which the child was born. The parties
acknowledge that the form was filed with ADES, although the record does
not reveal by whom.
¶4 Asserting paternity had been determined as a matter of law,
the State filed a petition in 2014 to establish Ayiyi's obligation to pay child
support. At the hearing that followed, Ayiyi asserted he had obtained a
DNA test within several months after the child was born that demonstrated
he was not the father. He said he lost the test results several years later and
asked the court to continue the proceeding to "allow [him] to do a DNA
test" and retain a lawyer. The court denied Ayiyi's request and entered an
order requiring him to pay child support. The court held paternity was
established by the filing of the 2005 acknowledgment and that Ayiyi's
challenge, commenced nearly nine years after the acknowledgment, was
untimely.
¶5 Ayiyi moved for a new trial and for relief from judgment
pursuant to Arizona Rules of Family Law Procedure 83 and 85. The
superior court denied both motions and Ayiyi timely appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(2), (5)(a) (2015).
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ADES/ANDERSON v. AYIYI
Decision of the Court
DISCUSSION
¶6 Ayiyi argues the superior court erred by ruling his paternity
challenge was time-barred. We review issues of statutory interpretation de
novo. Andrew R. v. Ariz. Dep't of Econ. Sec., 223 Ariz. 453, 456, ¶ 16 (App.
2010).
¶7 As relevant here, A.R.S. § 25-812(A)(1) provides, "This state or
the parent of a child born out of wedlock may establish the paternity of a
child by filing . . . with the clerk of the superior court [or] the department of
economic security . . . [a] notarized or witnessed statement . . . signed by
both parents acknowledging paternity." Upon filing, the executed
acknowledgment constitutes "a determination of paternity and has the
same force and effect as a superior court judgment." A.R.S. § 25-812(D).
¶8 Subpart H of § 25-812 allows a party who has executed an
acknowledgment of paternity to rescind the acknowledgement for any
reason within 60 days of its execution. See A.R.S. § 25-812(H)(1); Andrew R.,
223 Ariz. at 457, ¶ 18. In addition, subpart E provides:
Pursuant to rule 85(c) of the Arizona rules of family law
procedure, the mother, father or child, or a party to the
proceeding on a rule 85(c) motion, may challenge a voluntary
acknowledgment of paternity established in this state at any
time after the sixty day period only on the basis of fraud,
duress or material mistake of fact, with the burden of proof
on the challenger . . . .
A.R.S. § 25-812(E).
¶9 In Andrew R., this court held a challenge brought under § 25-
812(E) on grounds of fraud, duress or mistake must be commenced no later
than six months after execution of an acknowledgment of paternity. 223
Ariz. at 457-58, ¶ 19. We reasoned that by providing in subpart E that such
a challenge may be brought "pursuant to Rule 60(c) [now Arizona Rule of
Family Law Procedure 85(C)]" the legislature mandated that the challenge
must be commenced within the six-month period in which Rule 85(C)
allows a party to move for relief from a final judgment or other order. Id.
at 459, ¶ 23; cf. A.R.S. § 25-812(D) ("voluntary acknowledgment of paternity
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ADES/ANDERSON v. AYIYI
Decision of the Court
made pursuant to this section is a determination of paternity [with] the
same force and effect as a superior court judgment").2
¶10 In this case, Ayiyi did not attempt to rescind the
acknowledgment within 60 days after it was executed and filed in 2005.
Although he eventually filed a Rule 85(C) motion for relief from judgment,
he did not do so until June 2014, well beyond the six-month limitation
period provided in Rule 85(C). His challenge therefore is time-barred
under Rule 85(C)(2) and A.R.S. § 25-812(E).3
¶11 Ayiyi alternatively argues A.R.S. § 25-503(F) allowed him to
challenge the acknowledgment and seek court-ordered genetic testing to
disprove paternity. As relevant here, § 25-503(F) provides:
On petition of a person who has been ordered to pay child
support pursuant to a presumption of paternity established
pursuant to § 25-814, the court may order the petitioner's
support to terminate if the court finds based on clear and
convincing evidence that paternity was established by fraud,
duress or material mistake of fact. . . . The court shall order
the petitioner, each child who is the subject of the petition and
the child's mother to submit to genetic testing and shall order
2 Although in Andrew R., we construed a prior version of A.R.S. § 25-
812(E) that referred to Ariz. R. Civ. P. 60(c), the same six-month time
limitation is found in Ariz. R. Fam. Law P. 85(C)(2). See id. (motion for relief
from judgment on grounds of, inter alia, "mistake, inadvertence, surprise, or
excusable neglect" or "fraud, misrepresentation, or other misconduct of an
adverse party" must be filed "not more than six (6) months after the
judgment or order was entered").
3 At oral argument, Ayiyi asserted his challenge was permitted by
Rule 85(C)(1)(f), which applies to motions for relief from judgment based
on "any other reason justifying relief," meaning reasons other than those
specified in Rule 85(C)(1)(a)-(e). He argued that because his motion alleged
duress or misconduct by Mother or by his parents, not by an "adverse
party," his attack on the judgment did not fall within Rule 85(C)(1)(c).
Ayiyi, however, did not raise this argument in the superior court; his
motion for relief from judgment was based solely on Rule 85(C)(1)(c). We
therefore will not address this argument. See In re MH 2008-002659, 224
Ariz. 25, 27, ¶ 9 (App. 2010).
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the appropriate testing procedures to determine the child's
inherited characteristics, including blood and tissue type.
Under the referenced statute, § 25-814, "[a] man is presumed to be the father
of the child if . . . [a] notarized or witnessed statement is signed by both
parents acknowledging paternity . . . ." A.R.S. § 25-814(A)(4).
¶12 Sections 25-812 and 25-814 both allow parents to
acknowledge paternity by signing a witnessed or notarized statement.
Under the latter statute, an executed and witnessed/notarized
acknowledgment, by itself, creates a rebuttable presumption of paternity. See
A.R.S. § 25-814(C) ("Any presumption under this section shall be rebutted
by clear and convincing evidence."); A.R.S. § 25-503(F) (child-support order
entered "pursuant to a presumption of paternity established pursuant to §
25-814" may be terminated on clear and convincing evidence). By contrast,
under A.R.S. § 25-812, once it is filed with the State or the superior court, an
executed and witnessed/notarized acknowledgment of paternity is no
longer rebuttable but "is a determination of paternity and has the same force
and effect as a superior court judgment." A.R.S. § 25-812(D).
¶13 Although § 25-503(F) allows a party subject to a child-support
order entered "pursuant to a presumption of paternity established pursuant
to § 25-814" to challenge the order by offering clear and convincing proof
that he is not the father, that allowance does not apply when, as here, the
acknowledgment of paternity has gained the force and effect of a court
judgment by virtue of filing pursuant to § 25-812. See Metzler v. BCI Coca-
Cola Bottling Co., 235 Ariz. 141, 144, ¶ 13 (2014) ("If the statute's language is
clear, it controls unless an absurdity or constitutional violation results.")
(quotation omitted).
¶14 Finally, Ayiyi argues that, as applied, the referenced paternity
statutes violated his constitutional right to due process by creating an
irrebuttable presumption of paternity. He contends the procedural
safeguards afforded by § 25-812 are inadequate because "they give [him] no
chance to obtain a scientific genetic test that will determine, once and for
all, if he really is the father of the child."
¶15 Because Ayiyi did not raise this argument in the superior
court, we will review it only for fundamental error. See, e.g., Mill Alley
Partners v. Wallace, 236 Ariz. 420, 423, ¶ 8 (App. 2014). To prevail under that
standard, Ayiyi "must establish both that fundamental error exists and that
the error in his case caused him prejudice." State v. Henderson, 210 Ariz.
561, 567, ¶ 20 (2005).
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ADES/ANDERSON v. AYIYI
Decision of the Court
¶16 At the hearing to establish child support, Ayiyi testified the
child may have been as young as two months when he had a genetic test
performed that he said showed he is not the biological father. He later
asserted he and Mother stopped having sexual intercourse a full year before
the child was born. Such statements belie Ayiyi's current contention that
the statutes afforded him no fair opportunity to challenge the
acknowledgment of paternity. Assuming arguendo the truthfulness of his
assertions, Ayiyi would have known he was not the father when he signed
the acknowledgment declaring otherwise, throughout the 60-day rescission
period provided in § 25-812(H), and during the entire six-month period for
bringing a Rule 85(C) motion for relief from judgment provided in § 25-
812(E), yet he failed to bring a timely challenge under any of these
provisions. Accordingly, because Ayiyi had a fair opportunity to challenge
the acknowledgment of paternity, his due process argument fails.
CONCLUSION
¶17 Ayiyi failed to challenge the acknowledgment of paternity
within the applicable time constraints of A.R.S. § 25-812; his challenge
under A.R.S. § 25-503(F) is misplaced because that provision does not apply
to a paternity acknowledgment that has gained the force and effect of a
judgment pursuant to A.R.S. § 25-812(D). Accordingly, we affirm the child-
support order.
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