Marc S. v. Robyn P./william P.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARC S., Appellant,

v.

ROBYN P., WILLIAM P., Appellees.

No. 1 CA-JV 15-0357
FILED 7-26-16

Appeal from the Superior Court in Maricopa County
No. JA509783
The Honorable Julia L. Vigil, Judge Pro Tempore

JURISDICTION ACCEPTED, RELIEF DENIED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellee Robyn P.

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kent E. Cattani joined.
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K E S S L E R, Judge:

¶1 Appellant Marc S. (“Marc”), the biological father of Autumn,
appeals the juvenile court’s denial of his motion to restore parental rights.
Marc argues that the superior court erred in denying: (1) his motion as
barred by Arizona Revised Statutes (“A.R.S.”) section 8-123 (2016),1 a
statute controlling procedural irregularities in adoption cases; (2) his
motion as barred by Marc having actual notice as of March 2014 of the
severance of his parental rights to Autumn in a related case; and (3) him
an evidentiary hearing to prove alleged fraud on the court as to service of
process on him in the severance proceeding. For the reasons stated below,
we treat this appeal as a special action, accept jurisdiction, but deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 In September 2006, Robyn P. (“Robyn”) gave birth to
Autumn. In May 2007, the superior court determined that Marc was
Autumn’s biological father. In September 2007, Robyn married William P.
(“William”). In January 2008, in a related paternity and custody matter,
the family court awarded custody of Autumn to Robyn, but gave Marc
supervised access two times per week, with the intent to gradually
increase that parenting time if the supervised parenting time was
successful.

¶3 In November 2008, Robyn and William filed an action to
sever Marc’s parental rights due to abandonment, indicating that Robyn
and William intended to have William adopt Autumn. In a social study
supporting the petition, an adoption specialist reported Marc’s residence
was in Scottsdale, Arizona. That study also stated the specialist had
interviewed Marc and that he knew of the proposed severance and
adoption, had at one time consented to the adoption, but that was no
longer on the table, and he intended to fight the severance action. Mother
and William attempted to have the severance petition served on Marc at
the Scottsdale address, but the process server reported that, after eight
attempts, service was unsuccessful. The process server stated he had
talked to a woman at the house who said Marc did not live there, but she
could forward him papers. At the direction of Robyn and William’s

1 We cite to the current version of applicable statutes when no
revision material to this case has occurred.

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counsel, the papers were returned to the attorney. The attorney sent the
petition and notice of a hearing by certified mail to Marc at the Scottsdale
address, but the documents were returned with the envelope marked
undeliverable as addressed/unable to forward. In March 2009, Mother
filed an affidavit to confirm service by publication, in which she swore,
through her attorney, that Marc was avoiding service at the Scottsdale
address. The motion also indicated that service by publication was
accomplished through the Record Reporter in Arizona.

¶4 At a March 2009 publication hearing in the severance
proceeding, the superior court concluded that service by publication was
warranted because the adoption case manager had made Marc aware of
an earlier hearing in the severance matter, that Marc had told the manager
he resided in Scottsdale, and that there was a basis to believe Marc was
avoiding service of process. Based on his failure to appear, the court
concluded Marc had waived his legal rights, admitted the allegations of
the petition and, based on evidence presented, the court severed his
parental rights due to abandonment. That order was sent to Marc at the
Scottsdale address.

¶5 Several weeks after the severance order, in April 2009,
William, through the Maricopa County Attorney, filed this action,
petitioning the juvenile court to allow William to adopt Autumn. That
petition explained Marc’s consent to adopt was not obtained because his
parental rights had been terminated in the separate severance proceeding.
In June 2009, the court issued an order of adoption.

¶6 Four years later, Robyn divorced William. In March 2014,
almost five years after the adoption order, William informed Marc about
his 2009 adoption of Autumn and the 2009 severance of Marc’s parental
rights. William invited Marc to live with him and Autumn in Arizona,
while William’s health was deteriorating. Marc stayed for several months.

¶7 In September 2015, Marc filed a motion in the adoption case
seeking to restore his parental rights. In support of his request, Marc
presented affidavits from himself and William attacking the juvenile
court’s personal jurisdiction in the severance proceeding, contending that:
(1) prior to the severance hearing, Robyn knew that Marc had resided in
New York since 2008, and both Robyn and the adoption case manager
knew of his New York address prior to serving him with process by
publication; (2) Robyn knew Marc had been living in New York, as shown
by a January 2009 email exchange between Robyn and Marc, but Robyn
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lied to the adoption attorney about that fact and sought to have the
severance petition served in Scottsdale; and (3) information provided to
the court by the adoption case manager in 2009 that he lived in Scottsdale
was not accurate because during those January 2009 conversations Marc
had told the adoption case manager he was living in New York but that
documents left at the Scottsdale address would be forwarded to him by
the woman living there. In an affidavit filed with the court, Marc also
stated that the first time he learned about the severance and adoption was
in March 2014 when William told him about the severance and adoption.

¶8 In October 2015, the juvenile court denied Marc’s motion to
restore parental rights without holding an evidentiary hearing.2 It held
the motion was barred by A.R.S. § 8-123 because it was filed more than
one year after the adoption order. It also found Marc had knowledge of
the termination through the severance minute entry in 2009, and if he had
not received it, he knew there was a termination proceeding or knew of
the termination at least as of March 2014, but failed to act until September
2015 when he filed his motion to restore parental rights. The court
indicated that it would later decide Robyn’s request for attorneys’ fees. It
did not certify its order as final for purposes of appeal.

¶9 Five days later, Marc appealed the juvenile court’s order
denying his motion. In late December 2015, the court denied Robyn’s
request for attorneys’ fees. Marc did not file an amended notice of appeal.

DISCUSSION

I. Appellate Jurisdiction

¶10 We have an independent duty to determine our appellate
jurisdiction. See Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465
(App. 1997) (noting appellate court has an independent duty to examine
whether it has appellate jurisdiction over putative appeals). We construe
Marc’s motion to be one for relief from the severance and adoption orders
pursuant to Arizona Rules of Procedure for the Juvenile Court (“Juvenile
Rules”) 85(A), incorporating standards for relief from judgment from
Arizona Rule of Civil Procedure 60(c) (“Rule 60”). As such, the October
2015 order denying his motion would be appealable if it was a final order

2 The court interpreted the motion as requesting restoration of
parental rights and vacation of the default severance order.

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and the notice of appeal was filed within fifteen days of entry of the order.
Juvenile Rules 103(A) and 104(A); Tripati v. Forwith, 223 Ariz. 81, 84, ¶ 14
(App. 2009) (holding that a final order denying a Rule 60(c) motion is
appealable pursuant to A.R.S. § 12-2101(A)(3) (2016)).3

¶11 Marc’s notice of appeal was filed within fifteen days of the
entry of the October order. However, that order was not final because the
court had expressly indicated that it was still going to consider Robyn’s
request for attorneys’ fees and had not certified that no reason existed to
delay entry of the final order pending the fees issue. See Bollerman v.
Nowlis, 234 Ariz. 340, 341, ¶ 1 (2014) (holding that an otherwise appealable
judgment was not final for purposes of appeal if an issue of attorneys’ fees
was left undecided and the court had not included language from Arizona
Rule of Family Law Procedure 78(B) certifying the order was final for
purposes of appeal).4 Marc’s notice of appeal was thus premature. That
appeal was not made effective by Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 9(c), providing that a notice of appeal filed after the
court announces an order or other form of decision but before entry of the
resulting judgment is deemed filed as of the date of entry of the judgment.
See Camasura v. Camasura, 238 Ariz. 179, 182-83, ¶¶ 12-16 (App. 2015)
(holding that ARCAP 9(c) does not apply to an order entered but leaving a
request for attorneys’ fees for later decision). Thus, Marc’s premature
appeal was a nullity. Id. at 181, ¶ 6.

¶12 We have discretion to consider Marc’s appeal as a petition
for special action. See Grand v. Nacchio, 214 Ariz. 9, 17-18, ¶¶ 20-25 (App.
2006) (holding that court of appeals may consider an appeal as a special
action petition and accept jurisdiction when jurisdiction over an appeal is

3 “An appeal may be taken to the court of appeals from the superior
court . . . [f]rom any order affecting a substantial right made in any action
when the order in effect determines the action and prevents judgment
from which an appeal might be taken.” A.R.S. § 12-2101(A)(3) (2016).
4 While no Juvenile Rule references a certification of a judgment as
final despite the existence of remaining issues to be decided, we will apply
Arizona Rule of Civil Procedure 54(b), since it does not expressly conflict
with any Juvenile Rule. See Juvenile Rule 67 (providing that the Juvenile
Rules shall be interpreted in a manner designed to protect the best
interests of the child).

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lacking). Given the issues in this case dealing with the severance of a
father’s parental rights, the later adoption of the child, and the allegations
of fraud on the court, we treat the appeal as a petition for special action,
accept jurisdiction of the special action, but deny relief.

II. Section § 8-123 as Applied to Challenging the Adoption Order

¶13 Marc argues that the juvenile court incorrectly interpreted
and applied A.R.S. § 8-123 because the statute limits the time to correct an
“irregularity in the proceeding,” id., and a lack of personal jurisdiction is
not a mere irregularity.

¶14 We review issues of statutory interpretation and application
of statutes and rules de novo. Pima Cty. v. Pima Cty. Law Enf't Merit Sys.
Council, 211 Ariz. 224, 227, ¶ 13 (2005). We will affirm the superior court
on any basis supported by the record. City of Phoenix. v. Geyler, 144 Ariz.
323, 330 (1985).

¶15 Section § 8–123 provides that: “After one year from the date
the adoption decree is entered, any irregularity in the proceeding shall be
deemed cured and the validity of the decree shall not thereafter be subject
to attack on any such ground in any collateral or direct proceeding.”
Despite the language of the statute, in Goclanney v. Desrochers, 135 Ariz.
240, 242 (App. 1982), we held that lack of jurisdiction was not an
irregularity within the meaning of the statute. Accordingly, if the alleged
fraud on the court as to service of process had occurred in the adoption
proceeding, the juvenile court would have erred in barring Marc’s motion
under § 8-123. Without proper service of process, a court lacks
jurisdiction over a party and any judgment against the party would be
void. “Proper service of process is essential for the court to have
jurisdiction over the defendant. Consequently, a judgment would be void
and subject to attack if the court that rendered it was without jurisdiction
because of lack of proper service.” Duckstein v. Wolf, 230 Ariz. 227, 233, ¶
18 (App. 2012).5

5 As the juvenile court recognized in its order, Marc was seeking to
vacate both the adoption order and the order severing his parental rights.
By its own terms, § 8-123 does not apply to a motion challenging a
severance order. Despite that fact, we affirm the court’s decision as to the
severance order for the reasons stated below.

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¶16 The alleged fraud on the court did not occur in the adoption
proceedings, but in the separate parental severance proceedings. We have
not found an Arizona decision addressing whether a jurisdictional defect
in a severance proceeding, which leads to an adoption without notice to or
consent of the parent who has lost their parental rights, amounts to a mere
irregularity in the adoption proceeding. Cf. Roberto F. v. Ariz. Dept. of Child
Safety, 1 CA-JV 13-0209, 2015 WL 5827093 at * 1, ¶4 (Ariz. App., Oct. 6,
2015) (mem. decision) (holding that once mandate issued in appellate
court decision vacating order severing father’s parental rights, father was
entitled to vacation of order of adoption entered while appeal from
severance order was pending).

¶17 However, we need not decide whether § 8-123 can apply to
an alleged jurisdictional defect that occurred outside of the adoption
proceedings. Rather, we construe § 8-123 to bar a challenge to an
adoption proceeding if the absent parent failed to bring the motion within
one year of learning of the adoption or the fraud. In Husband (G.T.B.) v.
Wife (G.R.), 424 A.2d 12, 14-15 (Del. 1980), the Delaware Supreme Court
affirmed an order denying an adoptive father’s request to vacate an
adoption based on an alleged fraud by the biological mother. The court
reasoned in the alternative that a statute similar to § 8-123 but providing
for a two year time limitation tolled the statute of limitations to challenge
the adoption only until such time as the adoptive father discovered or
should have discovered the fraud. The court concluded that since the
adoptive father had filed the action for relief more than two years after
learning of the fraud, the statute barred his motion. See also Walk v. Ring, 202 Ariz. 310, 319, ¶ 34 (2002) (holding that a statute of limitations for
malpractice was tolled by the defendant’s fraudulent concealment of the
facts until the plaintiff knew or should have known of the concealed
facts).6

¶18 That is the case here. Marc claimed in an affidavit that the
first time he learned of the severance and adoption was in March 2014. As

6 Nothing in our decision should be read to imply that a parent can
commit a fraud on the court relating to service of process in a severance
proceeding and then successfully petition for adoption without notice to
the parent whose rights were severed without adequate notice. A parent
committing such a fraud takes his or her chances that A.R.S. § 8-123 will
not bar a later, timely challenge to the adoption.

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the juvenile court noted, Marc failed to file the motion to vacate the
adoption order for more than one year, until September 2015. As such, §
8-123 barred the motion because Marc knew of the severance and
adoption more than one year before filing his motion for relief from the
adoption proceeding.

¶19 In so holding, we recognize there is no common-law time
limit for filing a motion for relief from judgment based on fraud on the
court. Alvardo v. Thomson, 1 CA-SA 16-0051, 2016 WL 3063781, at *3, ¶¶
15-16 (Ariz. App. May 31, 2016) (mem. decision). Nor does the doctrine of
laches apply when there is lack of personal jurisdiction through an alleged
fraud on the court. McNeil v. Hoskyns, 236 Ariz. 173, 178, ¶ 20 (App. 2014)
(citing Gordon v. Gordon, 35 Ariz. 357, 365-66 (1929) for the principle that:
“[P]laintiff committed fraud on the court by affidavit falsely representing
she did not know where defendant lived”). See also In re Milliman’s Estate,
101 Ariz. 54, 58 (1966) (“The theory underlying the concept of a void
judgment is that it is legally ineffective—a legal nullity; and may be
vacated by the court which rendered it at any time. Laches of a party
cannot cure a judgment that is so defective as to be void; laches cannot
infuse the judgment with life.”) (quoting 7 Moore’s Federal Practice §
60.25(4) (2d ed. 1955)) (emphasis added); Master Fin., Inc. v. Woodburn, 208
Ariz. 70, 74, ¶ 19 (App. 2004) (motion to vacate void judgment is never
untimely, “even in the case of unreasonable delay by the party seeking
relief”); Martin v. Martin, 182 Ariz. 11, 14 (App. 1994) (holding that time
does not limit court’s duty to vacate a void judgment even when the party
seeking relief delayed unreasonably). Accord Cypress on Sunland
Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 299-300, ¶¶ 42-43 (App. 2011)
(“When a party obtains a judgment by concealing material facts and
suppressing the truth with the intent to mislead the court, this constitutes
a fraud upon the court, and the court has the power to set aside the
judgment at any time.”).

¶20 Our ruling today as to Marc’s attack on the adoption order is
not based on laches or a common-law time limit for filing a motion for
relief from an adoption order. Rather, it is based on the statutory bar of §
8-123, which we construe as limiting a challenge to an adoption order filed

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more than one year after Marc learned of that order or the underlying
severance order.7

¶21 We also reject Marc’s argument that at a minimum, the
juvenile court should have held an evidentiary hearing on his allegations
of a fraud on the court affecting the jurisdiction of the court to sever his
parental rights in his absence. Normally, if there is a genuine dispute over
material facts as to a fraud on the court relating to service of process and
personal jurisdiction, the court should hold an evidentiary hearing.
Duckstein, 230 Ariz. at 229, ¶ 1 (“[W]hen a motion to set aside a default
judgment presents contested issues of material fact and a party requests
an evidentiary hearing, the trial court should conduct an evidentiary
hearing before ruling on the motion.”). Here, however, there was no
genuine dispute of material fact that Marc knew of the severance and
adoption in March 2014 but delayed filing his motion for relief from the
adoption order for more than one year. As such, no evidentiary hearing
was needed.

¶22 Accordingly, we affirm the juvenile court’s order denying
Marc’s motion to restore his parental rights by vacating the adoption
order.

III. Motion to Vacate the Severance Order

¶23 Finally, we deal with Marc’s motion as it relates to the
severance order. To challenge a severance order issued after a party fails
to appear to contest the severance, the movant must show that he had
good cause to excuse his failure to appear and a meritorious defense.
Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007).
We need not address the former requirement because Marc’s motion did
not present a meritorious defense.

7 Robyn argues that Marc’s motion is untimely under Juvenile Rule
46(E), which requires a motion for relief from judgment for fraud to be
filed within six months of the order. This argument was not raised in the
juvenile court, so we will not address it on appeal. See Barkhurst v.
Kingsmen of Route 66, Inc., 234 Ariz. 470, 476, ¶ 22 (App. 2014).

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¶24 In his motion, Marc argued that Robyn had prevented him
from seeing Autumn. We have held that when a parent seeking
termination of the other parent’s parental rights substantially interferes
with that other parent’s access to the child, termination cannot be granted
based on abandonment. Calvin B. v. Brittany B., 232 Ariz. 292, 297, ¶ 21
(App. 2013). However, Marc conceded that despite the juvenile court in
the custody matter having granted him parental rights, once Robyn
attempted to interfere with those rights, he left for New York and had no
contact with Autumn for approximately five years. When a parent is
faced with burdens interfering with his or her access to their child, we
expect the parent to take all reasonable actions to have access and
continue their relationship with the child. Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 250, ¶ 22 (2000) (citations omitted).

¶25 Prior to the severance proceeding, Marc could have filed a
motion to enforce the order granting him parental rights, especially
because in that order the court noted its concern that Robyn might
interfere with his access to Autumn. Instead of trying to enforce those
rights, Marc left and stayed away for over five years. While we
understand that Marc contended he was undergoing great stress at the
time and that Robyn was simply going to replace him with William, we
have to judge Marc’s conduct by his actions, not his intent. Id. at 249, ¶ 18.
Marc’s affidavits do not amount to a prima facie showing of a meritorious
defense on the grounds of abandonment because he left Arizona rather
than fight for his rights to his child. The court did not err in denying the
motion to vacate the severance order.

CONCLUSION

¶26 For the foregoing reasons, we consider the appeal as a
petition for special action, accept jurisdiction, but deny relief.

:jt

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