Templar v. ADES
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NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
L.S. TEMPLAR,
Petitioner/Appellant,
v.
STATE OF ARIZONA ex rel. THE
DEPARTMENT OF ECONOMIC SECURITY
(LAURI ANN MOODY),
Respondent/Appellee.
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No.
1 CA-CV 10-0644
DEPARTMENT E
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2005-091031
The Honorable Helene F. Abrams, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By
Carol A. Salvati, Assistant Attorney General
Attorneys for Appellee
L.S. Templar, in Propria Persona
Appellant
Phoenix
Mesa
J O H N S E N, Judge
¶1
L.S. Templar appeals the denial of his petition to
modify custody and child support and his “Rule 85(C)(1) Motion
to Correct.”
For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2
In March 2005, Templar petitioned the superior court
to determine that he is the natural father of B.T., who was born
out of wedlock one month before to Lauri Ann Moody.
Templar
simultaneously filed a notarized “Acknowledgment of Paternity.”
On June 3, 2005, at the conclusion of a resolution management
conference that Templar attended with Moody, the superior court
found Templar was the natural father of B.T. and ordered Templar
and Moody to comply with their agreement concerning custody and
support.
The
superior
reflecting its findings.
¶3
court
entered
a
signed
minute
entry
Templar did not appeal the order.
In January 2007, Templar petitioned the court for sole
custody
of
B.T.
Before
the
superior
rule
on
Templar’s motion, however, Templar absconded with the child.
He
later was found and incarcerated.
court
could
In March 2008, the superior
court held an evidentiary hearing on Templar’s petition for sole
custody.
all
Templar was present and testified.
relevant
factors
enumerated
in
Arizona
After considering
Revised
Statutes
(“A.R.S.”) section 25-403 (2007), the court entered a signed
order granting Moody sole custody and denying Templar parenting
time, pending his completion of a psychological evaluation.
The
court further ordered Templar to pay Moody $325 per month in
child support.
Templar did not appeal the court’s ruling.
2
¶4
On June 22, 2010, Templar filed a “Verified Petition
to Modify Custody and Child Support,” and on July 13, 2010, he
filed a “Rule 85(C)(1) Motion to Correct.” 1
denied Templar’s petition and motion.
Templar’s
Arizona
timely
appeal
Constitution
under
and
Article
pursuant
to
The superior court
We have jurisdiction of
6,
Section
A.R.S.
9,
§§
of
the
12-120.21
(2003) and -2101(B) (2003).
DISCUSSION
A.
Standard of Review.
¶5
We review the denial of a motion filed pursuant to
Arizona
Rule
discretion.
of
Family
Law
Procedure
85(C)
for
an
abuse
of
R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39
(App. 1991) (applying Arizona Rule of Civil Procedure 60(c)). 2
We
will
uphold
the
superior
court’s
denial
of
a
motion
for
relief from judgment unless “undisputed facts and circumstances
. . . require a contrary ruling as a matter of law.”
Coconino
Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121, 317 P.2d 550, 552
(1957) (applying Arizona Rule of Civil Procedure 60(c)).
We
1
Templar’s petition and motion were virtually identical,
except that the petition attached a sworn affidavit.
We will
refer to the two collectively as the motion for relief from
judgment.
2
Although relief from a judgment in a family law proceeding
is governed by Arizona Rule of Family Law Procedure 85(C), that
rule is substantively identical to Arizona Rule of Civil
Procedure 60(c). Cohen v. Frey, 215 Ariz. 62, 64, ¶ 1, n.1, 157
P.3d 482, 484 (App. 2007).
3
review the superior court’s jurisdiction de novo.
R.A.J., 169
Ariz. at 94, 817 P.2d at 39.
B.
Subject-Matter Jurisdiction.
¶6
Templar seems to argue on appeal that he is not the
natural father of B.T., and that as a result, the superior court
lacks jurisdiction to order him to pay child support.
¶7
Subject-matter jurisdiction is the power of the court
to decide an issue.
138
P.3d
1197,
1200
Fry v. Garcia, 213 Ariz. 70, 73, ¶ 9, n.2,
(App.
2006).
Templar’s
argument
fails
because A.R.S. § 25-801 (2007) confers upon the superior court
original jurisdiction “in proceedings to establish maternity or
paternity.” 3
jurisdiction
Thus,
to
the
superior
adjudicate
ascertain paternity.
the
court
petition
properly
he
filed
exercised
in
2005
to
Subsequent custody, visitation and support
proceedings are within the court’s continuing jurisdiction so
long as Arizona remains the child’s “home state.”
1031(A)(1) (2007), -1032(A) (2007).
A.R.S. §§ 25-
According to the record,
Arizona has been B.T.’s home state throughout her life.
C.
Determination of Paternity.
¶8
Templar
argues
the
2005
judicial
insufficient to establish his paternity.
contains
no
written
acknowledgment
3
by
proceedings
were
He contends the record
Moody
that
he
is
the
Absent material revisions after the relevant date, we cite
a statute’s current version.
4
natural father of B.T.
order
establishing
But the court’s signed June 3, 2005
paternity
Templar failed to appeal.
of that order.
was
a
final
order
from
which
He may not now challenge the merits
See Pettit v. Pettit, 218 Ariz. 529, 532-33, ¶¶
8-10, 189 P.3d 1102, 1105-06 (App. 2008) (claim preclusion bars
attempt
to
Ariz.,
120
(judgment
re-litigate
paternity);
Ariz.
377,
in
374,
paternity
586
action
Rios
P.2d
has
v.
Indus.
219,
“[r]es
222
Comm’n
(App.
judicata
of
1978)
effect
on
other courts and administrative agencies”).
D.
¶9
Motion for Relief Due to Fraud.
Rule
85(C)
specific circumstances.
allows
for
relief
from
judgment
In relevant part, it provides:
C.
Mistake;
Inadvertence;
Excusable
Neglect;
Newly
Evidence; Fraud, etc.
Surprise,
Discovered
1.
On motion and upon such terms as are
just the court may relieve a party or a
party’s legal representative from a final
judgment,
order
or
proceeding
for
the
following reasons:
*
*
*
b.
newly discovered evidence, which
by due diligence could not have been
discovered in time to move for a new
trial under Rule 83(D);
c.
fraud, misrepresentation, or other
misconduct of an adverse party;
d.
the judgment is void;
*
*
*
5
under
2.
The motion shall be filed within a
reasonable time, and for reasons . . . 1(b)
and 1(c) not more than six (6) months after
the
judgment
or
order
was
entered
or
proceeding was taken.
Ariz. R. Family Law P. 85(C).
¶10
Templar
judgment
of
defrauded
paternity
him
into
paternity of B.T.
ground
was
asserts
he
is
pursuant
falsely
entitled
to
to
85(C)
Rule
believing
and
relief
from
because
the
Moody
acknowledging
his
But his motion for relief based on that
untimely.
See
Ariz.
R.
Family
Law
P.
85(C)(2)
(motion based on fraud must be filed within six months after the
judgment or order was entered).
¶11
The superior court issued its order finding Templar to
be the natural father of B.T. in June 2005.
Templar did not
file his motion for relief from that judgment until almost five
years later, in April 2010.
Because he did not file that motion
within
superior
six
months
of
the
court’s
determination
paternity, his motion is barred by Rule 85(C)(2).
of
Cf. In re
Estate of Travers, 192 Ariz. 333, 337, ¶ 28, 965 P.2d 67, 71
(App. 1998) (denying relief based on untimely motion for relief
pursuant to Arizona Rule of Civil Procedure 60(c)).
¶12
Nor does Rule 85(C) allow relief to Templar based on
asserted newly discovered evidence.
Templar seems to argue that
because Moody first let him know in June 2008 that he may not
6
have fathered the child, he is entitled to relief pursuant to
Rule
85(C)(1)(b).
But
again,
Templar’s
motion
is
untimely
because it was not filed within six months of entry of the
judgment.
See Ariz. R. Family Law P. 85(C)(2).
¶13
Without
85(C)(2)
allows
citing
a
authority,
motion
for
Templar
relief
to
states
that
a
motion
to
that
Rule
filed
within
six
be
months of the discovery of new evidence.
clearly
asserts
The rule, however,
correct
based
on
newly
discovered evidence “shall be filed . . . for [reason of newly
discovered
evidence]
not
more
than
six
(6)
months
after
judgment or order was entered or proceeding was taken.”
R.
Family
Law
P.
85(C)(2)
(emphasis
Templar’s motion was untimely.
added).
the
Ariz.
Therefore,
Indeed, Templar not only waited
to file his motion nearly five years after the court entered its
order of paternity, but he did not file until 21 months after he
allegedly discovered he might not be B.T.’s natural father. 4
E.
Due Process.
¶14
denying
denied
Finally, Templar argues the superior court erred by
his
his
motion
due
for
relief
from
process
rights
at
4
judgment
the
March
because
26,
2008
he
was
child-
Templar further argues that because he was incarcerated at
the time of the 2005 order, the six-month time limit for filing
his motion for relief from judgment pursuant to Rule 85(C) was
tolled. He cites the federal Antiterrorism and Effective Death
Penalty Act as support for his assertion, but that statute has
no application to a child-custody or paternity matter.
See 28
U.S.C. § 2244(d)(1), (2) (2006).
7
support
hearing.
But
the
signed
child-support
final when Templar failed to appeal it.
order
became
See Pettit, 218 Ariz.
at 532-33, ¶¶ 8-10, 189 P.3d at 1105-06.
Accordingly, he may
not attack the 2008 order in this proceeding.
CONCLUSION
¶15
For
the
foregoing
reasons,
we
affirm
the
superior
court’s denial of Templar’s “Verified Petition to Modify Custody
and Child Support” and “Rule 85(C)(1) Motion to Correct.”
/s/
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
/s/
PATRICIA A. OROZCO, Judge
/s/
ANN A. SCOTT TIMMER, Judge
8
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