Norwood v. Moore

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

ERIC MAJOR NORWOOD, Petitioner/Appellant,

v.

MONIFA MOORE, Respondent/Appellee.

No. 1 CA-CV 22-0652 FC
FILED 7-25-2023

Appeal from the Superior Court in Maricopa County
No. FC2021-001791
The Honorable Tracey Westerhausen, Judge

REVERSED AND REMANDED

APPEARANCES

Eric Major Norwood, Chicago, Illinois
Petitioner/Appellant

Monifa Moore, Tolleson
Respondent/Appellee
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MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya joined, and Judge Andrew M. Jacobs specially
concurred.

G A S S, Chief Judge:

¶1 Eric Major Norwood filed two cases. The superior court
treated the first as a petition for third-party visitation because Norwood did
not seek a paternity finding. In the second, Norwood specifically petitioned
for paternity, legal decision-making, parenting time, and child support. The
superior court sua sponte dismissed the second petition, ruling res judicata—
claim preclusion—barred it. We reverse and remand because the superior
court’s earlier third-party visitation order is not preclusive on the issues of
paternity, legal decision-making, parenting time, and child support.

FACTUAL AND PROCEDURAL HISTORY

¶2 The child at issue was born in July 2016. Norwood and the
child’s genetic mother never married, and Norwood is not the child’s
genetic father. Even so, Norwood and mother listed Norwood as the father
on the child’s birth certificate. And in December 2016, Norwood and mother
signed a Voluntary Acknowledgment of Paternity (the Acknowledgment)
under A.R.S. § 25-812 and filed it with the Arizona Department of Economic
Security (ADES).

I. Norwood’s First Petition

¶3 In March 2021, Norwood petitioned the superior court to
establish legal decision-making, parenting time, and child support, but not
paternity. Instead, he claimed the birth certificate established his paternity
by listing him as the child’s father. Relying on A.R.S. §§ 25-403 and -501,
Norwood asked the superior court to award him joint legal decision-
making authority. Along with child support, Norwood also sought an
“essentially equal long-distance parenting plan,” without naming himself
or mother as the primary residential parent.

¶4 Mother used a court-provided form titled “Response to
Petition to Establish Paternity” to respond to and oppose Norwood’s first
petition. Using that form, mother denied Norwood’s paternity in several

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ways. First, she said Norwood “is not the biological father” and “[p]aternity
was not established at [the child’s] birth.” Second, she checked a box saying
she and Norwood “did not sign an Affidavit or Acknowledgment of
Paternity” acknowledging Norwood as the father. Third, she marked a box
saying the parties completed DNA testing, but she did not disclose the
results or supply a copy of the test.

¶5 In her response, mother asked the superior court to declare
Norwood is not the child’s genetic father. She also asked the superior court
to grant her sole legal decision-making authority, declare her the primary
residential parent, and award Norwood no parenting time.

¶6 The superior court held a resolution management conference.
During that conference, the superior court set a trial date and issued
temporary orders. Mother did not follow the temporary orders.

¶7 At the trial, both parties testified but did not mention the
Acknowledgment. Norwood testified about his relationship and contact
with the child, ability to travel to Arizona to be with the child, and the times
of year he wanted the child with him in Illinois. Norwood acknowledged
he is not the child’s genetic father but maintained his paternity was
established because the child’s birth certificate listed him as the father.
Norwood provided the birth certificate as an exhibit.

¶8 Mother objected to the child spending time with Norwood,
especially in Illinois, because she already was giving enough to “somebody
that’s not biologically [the child’s] father.” Mother then said she knows the
identity of the child’s alleged genetic father. She acknowledged the alleged
father was not currently involved in the child’s life but claimed he had tried
on occasions to be involved and wanted to be on the child’s birth certificate
after completing a DNA test. Mother also confirmed she never petitioned
to establish paternity for the child—either for the alleged genetic father or
for Norwood. At the end of the trial, the superior court noted the parties
had “certainly facilitated parenting time with the other parent.”

¶9 The superior court later ruled the child’s birth certificate did
not establish Norwood’s paternity. See Castillo v. Lazo, 241 Ariz. 295, 298
¶ 10 (App. 2016) (holding a birth certificate is not equivalent to a signed
voluntary acknowledgment of paternity filed with ADES under A.R.S. § 25-
812). The superior court then ruled Norwood “did not file a petition to
establish paternity” and said he “should have filed a petition for third-party
visitation” under A.R.S. § 25-409.C.2. The superior court then treated
Norwood’s first petition “as one under the third-party visitation statute.”

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After considering the statutory visitation factors, the superior court
awarded Norwood at least two consecutive weeks of visitation with the
child in June at Norwood’s expense.

¶10 Norwood moved to alter or amend the judgment under Rule
83(a)(1), Arizona Rules of Family Law Procedure. He attached the
Acknowledgment he and mother signed and filed with ADES. Norwood
argued the superior court erred because he met the presumption for
paternity under A.R.S. §§ 25-812.A.1 and -814.A.4 and established he is the
child’s legal father. As a result, Norwood argued he had no reason to
request relief under the third-party visitation statute. See A.R.S. § 25-409.C.
Norwood argued he and mother filed the Acknowledgment with ADES, so
the Acknowledgment controlled even though he had not filed it with the
superior court.

¶11 While the motion to alter or amend the judgment was
pending, Norwood appealed. This court stayed the appeal and revested
jurisdiction in the superior court to consider Norwood’s motion. The
superior court denied that motion in a signed order under Rule 78(c),
Arizona Rules of Family Law Procedure. The superior court noted
Norwood had not previously provided the Acknowledgment and denied
his motion as “essentially too little, too late.” Norwood did not appeal that
order, and this court dismissed his appeal when he did not file an opening
brief.

II. Norwood’s Second Petition

¶12 Norwood then petitioned to establish paternity, legal
decision-making, parenting time, and child support. He moved for
summary judgment on the paternity issue and attached the fully executed
and filed Acknowledgment. Mother—who in responding to the first
petition incorrectly told the superior court she and Norwood had not
executed and filed the Acknowledgment—did not oppose Norwood’s
motion.

¶13 Even so, the superior court denied Norwood’s unopposed
motion for summary judgment and petition for paternity in a signed final
judgment. The court sua sponte analyzed whether Norwood’s claim in his
petition for paternity was the same as the claim in his earlier petition.
Applying the “same evidence” test, the superior court found paternity “was
an inherent issue” in the first petition and concluded claim preclusion
barred the second petition. See Pettit v. Pettit, 218 Ariz. 529, 531 ¶ 4 (App.
2008).

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¶14 This court has jurisdiction over Norwood’s timely appeal
under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-
2101.A.1 and -120.21.A.1.

ANALYSIS

¶15 Norwood argues the superior court abused its discretion
when it sua sponte ruled his first petition for legal decision-making,
parenting time, and child support orders precluded his second paternity
petition. Though mother did not oppose Norwood’s appeal, we exercise
our discretion and decline to treat her failure as a confession of error. See In
re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 2 (App. 2002). On the merits, we
agree with Norwood and reverse.

I. Norwood established paternity under A.R.S. § 25-812.

¶16 This court reviews a grant of summary judgment de novo.
Palmer v. Palmer, 217 Ariz. 67, 69 ¶ 7 (App. 2007). Summary judgment is
proper only if the moving party shows no genuine dispute of material fact.
See id. Here, summary judgment comes down to whether Norwood
followed A.R.S. § 25-812. He did.

¶17 Putative parents can use an acknowledgment of paternity to
establish the paternity of a child born out of wedlock if: (1) both signed the
acknowledgment; (2) their signatures are notarized or witnessed; and
(3) they file the acknowledgment with ADES. See A.R.S. § 25-812.A.1, .D.
The Acknowledgment here met all three requirements. Norwood and
mother signed the Acknowledgment, an ADES employee witnessed their
signatures, and they filed it with ADES. And Norwood provided an ADES-
certified copy of the Acknowledgment to the superior court.

¶18 Because Norwood and the child’s mother followed the
statutory requirements, the Acknowledgment “has the same force and
effect as a superior court judgment.” See A.R.S. § 25-812.D. And courts must
presume Norwood’s signed voluntary acknowledgment of paternity is
valid and binding until proven otherwise. See Johnson v. Edelstein, 252 Ariz.
230, 233 ¶ 13 (App. 2021).

¶19 Only two actions can undo the legal effect of a valid
acknowledgment. One or both parents may rescind an acknowledgment
within 60 days. A.R.S. § 25-812.H.1. After that, a person challenging an
acknowledgment has six months to seek to set aside an acknowledgment.
Ariz. R. Fam. L. P. 85(c). But Rule 85(c) limits relief to instances of fraud,
duress, or material mistake of fact. A.R.S. § 25-812.E. After Rule 85(c)’s six-

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month period, a party must show exceptional circumstances, such as fraud
on the court. Johnson, 252 Ariz. at 233 ¶ 14.

¶20 Nothing here undoes the legal effect of the Acknowledgment.
Mother did not challenge the Acknowledgment, the superior court did not
question the Acknowledgment’s veracity or correctness, and the time to
challenge the Acknowledgment under A.R.S. § 25-812.E and Rule 85(c)(1)
has long since expired. Neither the superior court nor any party suggested
the Acknowledgment involved a fraud on the court or any other
exceptional circumstance. And no evidence in this record supports such a
conclusion. Instead, the Acknowledgment entitles Norwood to judgment as
a matter of law. See A.R.S. § 25-812.E; Johnson, 252 Ariz. at 233 ¶ 14.

II. The superior court’s order resolving Norwood’s first petition was
one for third-party visitation and is not preclusive of his second
petition for paternity.

¶21 No doubt both Norwood and mother made mistakes in
addressing the first petition, but those mistakes do not change the outcome
here. Norwood asserted his belief he was the child’s legal father by relying
on the child’s birth certificate. And as the superior court noted, Norwood
did not produce a copy of the Acknowledgment until he moved to alter or
amend the superior court’s ruling. We also note mother incorrectly said the
parties did not execute the Acknowledgment. Those mistakes
understandably led the superior court to its ruling on the first petition and
to consider those mistakes when it ruled on the second petition.

¶22 The superior court treated Norwood’s first petition “as one
under the third-party visitation statute.” That treatment fundamentally
distinguishes the relief Norwood sought in the first petition from the relief
he sought in the second. To establish visitation, Norwood did not need to
establish his paternity, but instead he had to establish visitation would be
in the child’s best interests. See A.R.S. § 25-409.C. In deciding whether to
grant visitation, the superior court had to consider the factors under
subsection 25-409.E, none of which include paternity. As a result of that
ruling, Norwood’s second petition—which specifically sought to establish
paternity—is not barred.

¶23 Claim preclusion bars a claim when an “prior judgment on
the merits was rendered by a court of competent jurisdiction and the matter
now in issue between the same parties . . . was, or might have been,
determined in the former action.” Peterson v. Newton, 232 Ariz. 593, 595 ¶ 5
(App. 2013) (cleaned up). For claim preclusion to apply, there must be: “(1)

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an identity of claims in the suit in which a judgment was entered and the
current litigation[;] (2) a final judgment on the merits in the previous
litigation[;] and (3) identity or privity between parties in the two suits.” In
re Gen. Adjudication of All Rts. to Use Water In Gila River Sys. & Source, 212
Ariz. 64, 69 ¶ 14 (2006). Relevant here, the claims of a third-party petitioning
for visitation under A.R.S. § 25-409.C.2 are different from those of a putative
parent seeking a judgment of paternity under A.R.S. § 25-812.

¶24 The superior court’s ruling on the first petition is dispositive.
The superior court ruled Norwood did not file the paternity petition he
should have filed but instead filed a petition the superior court treated as a
different type—one for third-party visitation. The superior court’s ruling
on the first petition prevented the claims in the second petition from sharing
the necessary identity required for claim preclusion. As a result, the two
petitions are figurative apples and oranges.

¶25 Our conclusion tracks Arizona law based on the superior
court’s sua sponte use of claim preclusion. Claim preclusion is a judicially
created doctrine, which this court does not rigidly apply if its application
would contravene public policy or would result in manifest injustice. In re
Marriage of Gibbs, 227 Ariz. 403, 407 ¶ 8 (App. 2011). Though both factors
appear to be present here, we need not resolve whether they would be
dispositive based on our ruling.

CONCLUSION

¶26 We reverse the superior court’s denial of Norwood’s motion
for summary judgment. We remand for the superior court to enter
judgment in Norwood’s favor on his paternity claim and to address the
remaining issues: legal decision-making, parenting time, and child support.

JACOBS, J., specially concurring.

¶27 I concur with the result the majority reaches and the entirety
of its decision except for the final sentence of paragraph 25. I write
separately to emphasize that there are two independent and equally
important reasons not to apply res judicata here: (1) there is not an identity
of issues between Norwood’s first and second matters; and (2) res judicata
is a judicially-created doctrine that courts should not rigidly apply where it
would contravene public policy or result in manifest injustice. See Smith v.
CIGNA HealthPlan of Ariz., 203 Ariz. 173, 179 ¶ 21 (App. 2002); In re Marriage
of Gibbs, 227 Ariz. 403, 407 ¶ 8 (App. 2011).

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¶28 Both components of reason (2) are present here. Section 25-
812 embodies a public policy of encouraging and supporting voluntary
acknowledgments of paternity. Finding res judicata to bar an otherwise
effective acknowledgment of paternity defeats that policy. See Smith, 203
Ariz. at 179 ¶ 21. And as to manifest injustice, the court already recognized
Norwood’s strong and loving tie to the child. In the first matter before it,
the court awarded Norwood extensive visitation, finding he “testified to
the many activities he and [the child] have enjoyed over the years, including
nerf guns, wrestling, and coloring books.” The court also found in granting
Norwood’s prior request for visitation that “[the child] seems ‘joyful’ when
[Norwood] calls.” In short, we have a loving relationship between
Norwood and the child, Norwood’s unopposed motion for summary
judgment as to paternity, no competing claim of paternity, and Norwood’s
unopposed appeal. On these facts, it would create injustice to apply res
judicata to bar Norwood’s claim. While the parties unfortunately created
unnecessary difficulties for the trial court in its resolution of these issues,
applying res judicata to bar Norwood’s claim of paternity would contravene
the policy of A.R.S. § 25-812, which is as important and dispositive as
whether res judicata applies here as a mechanical matter. I would thus
reverse for both reasons (1) and (2) set forth in paragraph 27.

AMY M. WOOD • Clerk of the Court
FILED: JT

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