Arvizu v. Fernandez

Citations: 902 P.2d 830; 183 Ariz. 224; 198 Ariz. Adv. Rep. 9; 1995 Ariz. App. LEXIS 200Docket: 1 CA-CV 93-0379

Court: Court of Appeals of Arizona; August 29, 1995; Arizona; State Appellate Court

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In the case of In re the Marriage of Armando Arvizu v. Elvira (Arvizu) Fernandez, the Arizona Court of Appeals addressed a contempt proceeding initiated by Elvira Fernandez against Armando Arvizu for non-payment of child support arrears established in a 1971 divorce decree. The father claimed he was not the biological father of one of the children, Armando Jr., leading the court to order DNA testing to confirm paternity. However, the court found that Armando Arvizu was barred by laches from contesting paternity after such a significant delay since the divorce and child support order. Consequently, the court vacated the trial court's order for paternity testing. 

The procedural history included a divorce complaint filed by Armando in 1970, the awarding of custody to Elvira, and a series of court orders concerning child support payments, culminating in a contempt petition filed by Elvira in 1993. The jurisdictional question of whether the order for paternity testing was appealable under A.R.S. section 12-2101(C) was also addressed, although the court did not resolve the underlying rationale for appealability, referencing prior case law that established similar orders as appealable.

In Gibbons v. Badger Mut. Ins. Co., the Arizona Court of Appeals determined that a denial of a motion to set aside a judgment under Rule 60(c) is appealable. The court noted that Arizona's appeal statute, A.R.S. section 12-2101, is derived from California's similar statute, section 904.1, which allows appeals from certain post-judgment orders. However, not all such orders are appealable; to qualify, they must meet two criteria: first, the issues in the appeal must differ from those in the underlying judgment; second, the order must affect the judgment or relate to its enforcement. 

In this case, the appeal regarding a paternity testing order did not raise issues related to the divorce decree, satisfying the first requirement. The second requirement was not met because the paternity testing order was deemed “preparatory” and did not affect the existing child support obligations. The court emphasized that allowing appeals from non-substantial orders would lead to excessive litigation. Furthermore, for a post-judgment order to be appealable, it must be signed by a judge, and the paternity testing order in question was not. Thus, the appeal would typically be dismissed due to lack of formal appealability. However, the court noted that while the mother did not seek special action relief, Arizona's special action jurisdiction allows for review of interlocutory orders, indicating that the court could consider the substance of the motion despite procedural missteps.

Mother, representing herself, lacks knowledge of the proper legal procedures, prompting the court to convert her appeal into a petition for special action relief due to the irreversible nature of blood testing. The core issue is whether father can contest the paternity of a child over twenty years post-divorce decree. Father claims he was unaware of the possibility that Armando, Jr. was not his son at the time of the decree. Mother's counterargument asserts that father cannot challenge the established paternity without filing a motion to vacate, as per Arizona Rule of Civil Procedure 60(c).

The record is incomplete regarding whether father filed a Rule 60(c) motion before the trial court's order for paternity testing. However, even if he had, the doctrine of laches bars his challenge. To succeed under laches, mother must demonstrate father's unreasonable delay in asserting his rights and the resulting prejudice to her. Despite acknowledging suspicions about paternity in 1981, father did not raise the issue until 1993, twelve years later, during which he increased his child support obligations and allowed judgments against him. 

This significant delay is deemed unreasonable, and the prejudice to mother is evident; had father timely contested paternity, she could have sought support from the biological father. As Armando, Jr. is now emancipated, mother cannot pursue child support from anyone other than father. Consequently, due to father's unreasonable delay and the associated prejudice to mother, his denial of paternity is barred. The court accepts special action jurisdiction, vacates the trial court's paternity testing order, and concludes that father is precluded from denying paternity. Judges Lankford and Haire concurred in the decision.