Manning v. Gracia

1

Richard Manning, Petitioner/Appellee, v. Marian Gracia, Respondent/Appellant.

No. 2 CA-CV 2023-0075

Court of Appeals of Arizona, Second Division

January 23, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. SP20220175 The Honorable Jeffrey L. Sklar, Judge The Honorable Nanette M Warner, Judge The Honorable Catherine M. Woods Judge.

Southern Arizona Legal Aid Inc., Tucson By Kristin Fitzharris Counsel for Respondent/Appellant.

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.

MEMORANDUM DECISION

ECKERSTROM, JUDGE.

¶1 Marian Gracia appeals from trial court's order adjudicating Richard Manning the father of her child, J.G. For the following reasons, we affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to upholding the trial court's ruling." Doherty v. Leon, 249 Ariz. 515, ¶ 2 (App. 2020). Gracia and Manning were involved in a relationship for approximately six months in 2021, ending in late September or early October 2021. In August or September, they learned that Gracia was pregnant. They became engaged to be married, but ended the relationship shortly thereafter.

¶3 In September 2021, after the relationship ended, Gracia obtained an order of protection against Manning. The order was served on Manning sometime in March 2022. Shortly afterward, Manning-who acted as a self-represented litigant throughout the trial court proceedings- filed a verified petition for paternity with parenting time and sole legal decision-making. See A.R.S. § 25-806(A). That petition requested genetic testing to establish paternity if the issue was contested.

¶4 J.G. was born on March 27, 2022. On April 22, 2022, Gracia executed an acknowledgment of paternity with Louis Godino. See A.R.S. § 25-812(A)(1). Thereafter, she obtained a birth certificate naming Godino as J.G.'s father.

¶5 In May 2022, Gracia filed a verified response and counterclaim in Manning's paternity proceeding, arguing that Godino was J.G.'s legal father, that he was named on the birth certificate as the father, and that he had filed an acknowledgment of paternity. She also alleged that Manning had engaged in emotionally and sexually abusive behavior toward her during their relationship.

¶6 Manning did not file a response to Gracia's counterclaim. On June 21, 2022, the last day Manning could have challenged the acknowledgment of paternity under § 25-812(E) other than on the basis of fraud, duress, or material mistake of fact, the trial court sua sponte issued an order construing Manning's March 2022 paternity petition as a motion for relief from judgment in regard to Godino's April 2022 acknowledgment of paternity. See § 25-812(C)-(D) (acknowledgement of paternity has "same force and effect as a superior court judgment" when filed with court or department of economic security); § 25-812(E) (allowing Rule 85(c) motion from acknowledgment of paternity); Ariz. R. Fam. Law P. 85(c). The court then ordered genetic testing, pursuant to A.R.S. § 25-807(C).

¶7 Gracia moved for reconsideration. The trial court stayed the genetic testing and permitted Manning to respond, specifically directing him to indicate whether he intended to proceed with the paternity action and whether he sought to challenge the acknowledgment of paternity. Manning filed a response in July 2022, which stated that he "fully wish[ed] to proceed" with the "direction of [the] case" and with genetic testing. The court construed Manning's response as a Rule 85 challenge to the acknowledgment of paternity, and it set an evidentiary hearing.

¶8 At the conclusion of the evidentiary hearing, the trial court found, by a preponderance of the evidence, that the acknowledgment of paternity was based on a material mistake of fact because the date of conception was "actually sometime after July 6th of 2022." It therefore set aside the acknowledgment of paternity, entering a final order pursuant to Rule 78(b), Ariz. R. P. Juv. Ct., and ordered genetic testing. Gracia does not appear to challenge the order setting aside the acknowledgment of paternity, although she complains in her opening brief that the process leading up to that order was unfair to her. But, because her notice of appeal was filed more than thirty days after the entry of the court's order setting aside the acknowledgement, we lack jurisdiction to consider that ruling in any event. See A.R.S. § 12-2101(A)(2); Ariz. R. Fam. Law P. 78(b), 85; Ariz. R. Civ. App. P. 9(e)(1)(E).

¶9 After the trial court set aside the acknowledgment of paternity, Manning filed a motion seeking temporary orders for legal decision-making and parenting time. Later the same day, Gracia filed a notice that genetic testing had shown, with 99.99 percent probability, that Manning is the biological father of J.G. The court set an in-person evidentiary hearing to adjudicate paternity and, if appropriate, establish temporary orders.

¶10 While awaiting that evidentiary hearing, Gracia filed a motion pursuant to Rule 64, Ariz. R. Fam. Law P., for findings of fact based on Manning's failure to respond to her requests for admission during discovery. Manning did not respond to this motion. Gracia also filed a motion pursuant to Rule 63, Ariz. R. Fam. Law P., requesting a psychosexual evaluation of Manning, which he opposed.

¶11 After the evidentiary hearing on paternity, the trial court denied Gracia's motion for findings of fact and adjudicated Manning the legal father of J.G., upon finding that the presumption in favor of Godino's paternity had been rebutted by the clear and convincing evidence of genetic testing. Gracia appealed from this order, which the trial court entered pursuant to Rule 78(b), Ariz. R. Fam. Law P. We have jurisdiction pursuant to § 12-2101(A)(1). See Ariz. R. Fam. Law P. 78(b).

¶12 The trial court also denied Gracia's motion for a psychosexual evaluation and entered temporary legal decision-making, parenting time, and child support orders. Although Gracia argues the court erred in denying her Rule 63 motion, we lack jurisdiction to review that ruling as it was not within the scope of the court's Rule 78(b) ruling. See Ariz. R. Fam. Law P. 78(b). Nor can we review the court's temporary orders as such orders are "preparatory" and not a final, appealable judgment. Villares v. Pineda, 217 Ariz. 623, ¶ 11 (App. 2008); see Ariz. R. Fam. Law P. 78(a)(1) ("A temporary order is not a judgment."); § 12-2101.

Discussion

¶13 Gracia argues the trial court "overstepp[ed] the limits of fair treatment of" a self-represented litigant in its application of procedural rules as to Manning, in particular through its discovery rulings leading up to the February 2023 orders. She further contends that, at least partially as a consequence of those pretrial rulings, the court incorrectly weighed the evidence in adjudicating Manning the legal father.

¶14 Manning has not filed an answering brief. In our discretion we may treat such failure as constituting a confession of reversible error when the opening brief presents debatable issues. See Tiller v. Tiller, 98 Ariz. 156, 157 (1965); Counterman v. Counterman, 6 Ariz.App. 454, 457 (1967) (presumption discretionary). However, it is "our duty to examine the record to determine whether there are debatable issues." Air East, Inc. v. Wheatley, 14 Ariz.App. 290, 292 (1971). Further, "resolution of cases on their merits is preferred." DeLong v. Merrill, 233 Ariz. 163, ¶ 9 (App. 2013).

I. Pretrial &Discovery Rulings

¶15 Gracia argues the trial court abused its discretion through its treatment of Manning's pretrial conduct, causing her "unjust prejudice." Specifically, she contends the court tolerated multiple violations of procedure. She maintains that this included Manning's failure to file a pretrial statement and his untimely responses to her requests for admission, which he improperly filed directly into the docket. She argues that this went "so far beyond the standard of treatment" for self-represented litigants that it "has undeniably risen to the level of abuse of discretion." She contends Manning's litigation conduct "should have been the basis for continuing or staying the hearing," prohibiting his claims, treating designated facts from ignored requests for admission as established under Rule 64(a)(4), or as grounds for sanctions, as provided by Rule 76.2, Ariz. R. Fam. Law P.

¶16 We review a trial court's discovery rulings for abuse of discretion. Johnson v. Provoyeur, 245 Ariz. 239, ¶ 8 (App. 2018). This standard also governs our review of a court's decisions regarding sanctions against a party who has committed discovery or evidentiary violations. See Kelly v. Kelly, 252 Ariz. 371, ¶ 16 (App. 2021); Seidman v. Seidman, 222 Ariz. 408, ¶ 18 (App. 2009). In so reviewing, the question "is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason." Marquez v. Ortega, 231 Ariz. 437, ¶ 14 (App. 2013) (quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985)).

A. Requests for Admission

¶17 On November 19, 2022, Gracia served Manning with three discovery requests: uniform interrogatories, requests for admission, and a blank affidavit of financial information. Manning timely responded to the interrogatories, but he did not respond to the requests for admission within the forty-day window provided by Rule 64(a)(4). See also Ariz. R. Fam. Law P. 60(b)(1) (setting forty-day response period for interrogatories). Gracia therefore filed a motion "for findings of fact per admissions," asking ...