Bredvig v. mason/rodriguez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
In re the Matter of:
JEREMY PHILLIP BREDVIG, Petitioner/Appellant,
v.
HEATHER ANN MASON, Respondent/Appellee.
__________________________________
REUBEN RODRIGUEZ, Petitioner/Appellee.
No. 1 CA-CV 22-0159 FC
FILED 12-29-2022
Appeal from the Superior Court in Maricopa County
No. FC2018-096499
No. FC2021-090912
The Honorable Marvin L. Davis, Judge
AFFIRMED
COUNSEL
Gillespie Shields Goldfarb & Taylor, Mesa
By Mark A. Shields, Robert Newell
Counsel for Petitioner/Appellant
Adam C. Rieth PLLC, Mesa
By Adam Rieth
Counsel for Respondent/Appellee
BREDVIG v. MASON/RODRIGUEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.
P E R K I N S, Judge:
¶1 Until 2021, Jeremy Phillip Bredvig and Heather Ann Mason
(“Mother”) shared joint legal decision-making and parenting time for their
three children under a 2019 consent judgment and paternity order (“2019
Judgment”). This appeal concerns the provisions of the judgment relating
to the oldest child (“Child”). In response to Bredvig’s petition to modify
parenting time, Mother challenged Bredvig’s paternity. Reuben Rodriguez
separately filed a paternity action and a genetic test showing that he is
Child’s biological father. After consolidating proceedings on Bredvig’s
petition to modify parenting time and Rodriguez’s paternity petition, the
superior court set aside the provisions of the 2019 Judgment relating to
Child; Bredvig appeals this order. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother was not married when Child was born in 2009. In
2011, Bredvig and Mother signed a voluntary acknowledgment of paternity
issued by the Arizona Department of Economic Security (“ADES”) and
witnessed by an ADES employee. Two days later, the Arizona Department
of Health Services issued a birth certificate listing Bredvig as Child’s father.
¶3 In 2018, after Mother and Bredvig had split, Bredvig
petitioned for joint legal decision-making authority and parenting time for
all three children. Mother and Bredvig submitted the 2019 Judgment,
naming Bredvig and Mother as the natural parents of all three children. The
judgment awarded Bredvig and Mother joint legal decision-making
authority and parenting time for the children.
¶4 In 2020, Bredvig petitioned to modify the parenting-time
order. In response, Mother sought sole custody and legal decision-making.
She also requested that Bredvig take a paternity test for all three children;
she wanted Bredvig removed from the birth certificates of any children who
were not biologically his. Mother alleged the parties could no longer co-
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Decision of the Court
parent due to increased animosity and Bredvig not acting in Child’s best
interests.
¶5 While these cross-petitions were pending, Reuben Rodriguez
petitioned for a paternity order, alleging he was Child’s biological father
according to a genetic test. Rodriguez sought joint legal decision-making
authority and parenting time for Child. Rodriguez informed the court that
he previously filed a paternity action in 2010 but it was dismissed when he
could not personally serve Mother.
¶6 On Mother’s motion, the superior court consolidated the two
actions and ordered all three parties to brief the issues relating to the
competing paternity claims and requests to set aside the 2019 Judgment.
Before the consolidation order, Mother and Rodriguez agreed to joint legal
decision-making, a parenting plan, and child support for Child. The day
after the consolidation order, a different superior court judge signed a
consent judgment in Rodriguez’s paternity action (“2021 Judgment”). The
2021 Judgment declared that Rodriguez was Child’s natural father and
ordered the Office of Vital Records to amend the birth certificate. It also
awarded Rodriguez joint legal decision-making authority and reasonable
parenting time.
¶7 The superior court held an evidentiary hearing in the
consolidated action in December 2021. Rodriguez, Bredvig, and Mother all
testified. The court set aside the provisions in the 2019 Judgment relating to
Child based on Mother’s fraud upon the court. Bredvig appeals the order
setting aside the 2019 Judgment as to Child. It is not clear that the superior
court properly certified its decision as final and appealable. Given the need
for an expeditious decision on the paternity issue, we accept special action
jurisdiction. Antonsen v. Superior Ct. In & For Cnty. of Maricopa, 186 Ariz. 1,
4 (App. 1996) (“cases involving potential custody of young children are also
often appropriate for special action relief to achieve a speedy resolution”).
DISCUSSION
I. Order setting aside the 2019 Judgment
¶8 Mother and Rodriguez sought to set aside the 2019 Judgment,
which named Bredvig as Child’s natural father. They argued the judgment
was a result of a fraud upon the court because Mother and Bredvig knew
that Rodriguez was Child’s father at the time of filing. Bredvig denied this,
claiming he believed himself to be Child’s father until Rodriguez filed his
paternity action in 2021. Based on the evidence and testimony presented,
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Decision of the Court
the superior court found that Mother committed a fraud upon the court but
made no findings regarding Bredvig’s involvement.
A. Motion to set aside
¶9 Mother did not file a Rule 85 motion to set aside the 2019
Judgment. Bredvig argued that the claims asserted by Mother and
Rodriguez were untimely under A.R.S. § 25-812 (action to overcome
paternity) and Rule 85(c) of Family Law Procedure (relief from judgment)
in his objection to Mother’s consolidation motion and in his first pretrial
statement. From this point on, the court and parties treated Mother’s and
Rodriguez’s pleadings as Rule 85 motions to set aside. The court’s order,
entitled “Paternity/Motion to Set Aside” specifically addressed “the issue
of paternity and the request to set aside the 2019 Consent Judgment.” We
review the superior court’s ruling on a Rule 85(c) motion for an abuse of
discretion. See Clark v. Kreamer, 243 Ariz. 272, 275, ¶ 10 (App. 2017). A court
abuses its discretion when it makes an error of law, fails to consider the
evidence, or if the record fails to provide substantial evidence to support its
ruling. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455–56 (1982).
B. Fraud upon the court
¶10 Because Mother and Rodriguez sought to set aside the
paternity order in the 2019 Judgment over a year after it was entered, they
had to prove fraud upon the court by clear and convincing evidence. Ariz.
R. Fam. Law. P. 85(c)(1), (d)(3); Clark, 243 Ariz. at 275, ¶ 13. The superior
court found that “Mother committed an intentional act for the deliberate
purpose of misleading the Court” and it was thus “necessary to set aside
the Consent Judgment to rectify the fraud.”
¶11 On appeal, Bredvig argues the superior court erred in setting
aside the 2019 Judgment because: (1) no one argued fraud on the court as
grounds to set aside the judgment; (2) the evidence does not support the
finding of a fraud on the court; and (3) Mother cannot rely on her own fraud
to set aside the paternity finding in the 2019 Judgment.
¶12 First, although neither Mother nor Rodriguez filed a separate
motion to set aside the portion of the consent judgment declaring Bredvig’s
paternity, the parties raised the alleged fraud upon the court as grounds to
set aside the 2019 Judgment in multiple pleadings. And Bredvig responded
to these arguments. We therefore conclude that the issue was properly
raised and is not subject to waiver.
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Decision of the Court
¶13 Second, ample evidence supports the court’s finding that
Mother committed a fraud upon the court. Mother testified she knew for
certain that Rodriguez—not Bredvig—was Child’s father based on an
amniocentesis test conducted during her pregnancy. Mother also testified
that Bredvig knew about these results before Child’s birth. Mother claimed
she listed Bredvig as the father because he threatened to leave her if she
failed to do so. And Rodriguez testified he knew he was the father before
Child was born, as evidenced by his 2010 paternity action. The court found
that this evidence sufficiently showed a fraud occurred at the time of the
2019 Judgment.
¶14 Despite Mother’s repeated admissions of fraud, Bredvig
argues these facts do not rise to the level of fraud upon the court. Fraud
upon the court occurs “[w]hen a party obtains a judgment by concealing
material facts and suppressing the truth with the intent to mislead the
court.” Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 299,
¶ 42 (App. 2011). The superior court found that, based on the evidence and
testimony, “Mother committed an intentional act for the deliberate purpose
of misleading the Court.” Mother’s intentional fraud prevented Rodriguez
from establishing a legally valid relationship with Child. As such, it
“damaged the ‘integrity of the judicial process’ and ‘is a wrong against the
institutions set up to protect and safeguard the public.’” McNeil v. Hoskyns,
236 Ariz. 173, 177, ¶ 16 (App. 2014) (citation omitted). The record supports
the finding that Mother committed a fraud upon the court. We find no error
in the court’s ruling.
¶15 Finally, Bredvig argues that setting aside the 2019 Judgment
was error because Mother cannot benefit from her wrongdoing. He reasons
that the court found no fraud on his part, and that setting aside the 2019
Judgment ultimately benefitted Mother and penalized him. On appeal,
Mother continues to argue that Bredvig was complicit in the fraud because
he knew he was not Child’s father, pressured her to sign the voluntary
acknowledgement, and assisted Mother in avoiding Rodriguez. The record
thus contains conflicting testimony regarding the fraud in this case. The
superior court did not address this factual dispute and we need not resolve
it.
¶16 Bredvig is correct that Mother cannot obtain relief with
unclean hands. See McQuillen v. Hufford, 249 Ariz. 69, 74, ¶ 17 (App. 2020)
(precluding mother from seeking relief based on her own fraudulent
misrepresentations); In re Marriage of Worcester, 192 Ariz. 24, 26, ¶ 6 (1998)
(“[I]t is axiomatic that one who knowingly and intentionally perpetrated a
fraud on another party and the court can never be entitled to relief under
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BREDVIG v. MASON/RODRIGUEZ
Decision of the Court
[Rule 60(b)],” the civil counterpart to Rule 85(b)). But Rodriguez separately
filed to establish his parental rights as to Child, and his paternity action was
consolidated. “[A]n innocent party may seek relief from a judgment
procured by the fraud of others.” McQuillen, 249 Ariz. at 74, ¶ 17. Rodriguez
is the innocent party entitled to challenge the 2019 Judgment based on
Mother’s fraud upon the court. The superior court properly considered
Rodriguez’s requests to set aside the judgment.
¶17 As stated in ¶ 14, supra, the record evidence supports the
court’s finding that Mother committed a fraud upon the court. Whether
Bredvig participated in Mother’s fraud does not undercut the court’s
decision to set aside the 2019 Judgment. “The superior court may set aside
a judgment at any time when the moving party proves the judgment was
the product of fraud upon the court.” Clark, 243 Ariz. at 275, ¶ 13 (citation
omitted); see also Alvarado v. Thompson, 240 Ariz. 12, 17, ¶ 23 (App. 2016)
(holding the court “did not err by concluding that intentionally creating and
using a fraudulent acknowledgment of paternity under the
circumstances . . . was a fraud upon the court.”). Because the superior court
properly found Mother committed fraud upon the court and Rodriguez is
the innocent third-party seeking relief from judgment procured by
Mother’s fraud, it did not abuse its discretion in setting aside the judgment.
II. Best-interests findings
¶18 Bredvig argues the superior court needed to consider and
make findings regarding Child’s best interests before setting aside the
paternity order in the 2019 Judgment. Mother contends the court did not
have to analyze Child’s best interests before it ordered a paternity test.
¶19 The paternity test identifying Child’s biological father—
Rodriguez—had already been performed, so the issue, as Bredvig more
accurately frames it, is whether the court must hold a best-interests hearing
when setting aside a paternity order. Whether the court must consider the
child’s best interests before setting aside a paternity judgment is a question
of law we review de novo. See Clark, 243 Ariz. at 275, ¶ 10.
¶20 Rule 85 does not require a best-interests analysis in deciding
whether to set aside a judgment that is the result of fraud upon the court:
“This rule [Relief from Judgment] does not limit the court’s power to . . . set
aside a judgment for fraud on the court.” Ariz. R. Fam. Law P. 85(d)(3).
When a party obtains a judgment through a fraud on the court, “the court
has the power to set aside the judgment at any time.” Cypress on Sunland
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Decision of the Court
Homeowners Ass’n, 227 Ariz. at 299, ¶ 42. We hold that the court did not have
to make a best-interests finding before setting aside the judgment.
¶21 After paternity is established, the best-interests analysis
becomes relevant to address custody and visitation issues. See Stephenson v.
Nastro, 192 Ariz. 475, 481, ¶ 17 (App. 1998); see also Antonsen, 186 Ariz. at 7
(“‘[T]he determination of the best interests of the child must be made
separately, after the resolution of biological paternity,’ when the mother
contests the presumptive father’s paternity, and when the tests confirm the
presumptive father is not biologically related to the child.”) (citation
omitted). Rule 85 requires no such analysis to set aside a judgment after
finding that a party committed a fraud upon the court. See Ariz. R. Fam.
Law P. 85(d)(3).
III. Guardian ad litem appointment
¶22 Bredvig argues the superior court erred by failing to appoint
a guardian ad litem to represent Child’s best interests. “On the motion of
any party or on its own motion, the court shall appoint a guardian ad litem
if it determines that there are reasonable grounds to believe that a party to
the proceeding is mentally incompetent or is otherwise in need of a
guardian ad litem.” A.R.S. § 8-535(F). We review the court’s failure to sua
sponte appoint a guardian ad litem for an abuse of discretion. Kelly R. v.
Ariz. Dep’t of Econ. Sec., 213 Ariz. 17, 21 n. 6 (App. 2006).
¶23 At no point throughout the course of trial did any party
request a guardian ad litem; Bredvig raises the issue for the first time on
appeal. The record otherwise contains no evidence of reasonable grounds
to believe that any one of the parties was mentally incompetent. The
superior court did not abuse its discretion.
ATTORNEYS’ FEES AND COSTS ON APPEAL
¶24 Both parties request attorneys’ fees under A.R.S. § 25-324.
Neither party took unreasonable positions on appeal. And the record
contains no current information about the parties’ financial resources. For
these reasons, we deny their requests. As the successful party on appeal,
Mother is entitled to her costs under A.R.S. § 12-342 upon compliance with
Arizona Rule of Civil Appellate Procedure 21.
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BREDVIG v. MASON/RODRIGUEZ
Decision of the Court
CONCLUSION
¶25 We affirm the superior court’s order setting aside the
provisions of the 2019 Judgment relating to Child.
AMY M. WOOD • Clerk of the Court
FILED: JT
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