Russ v. Tognetti ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
NICOLE RUSS, Petitioner/Appellant,
v.
JEREMY TOGNETTI, Respondent/Appellee.
No. 1 CA-CV 21-0563 FC
FILED 7-26-2022
Appeal from the Superior Court in Maricopa County
No. FC2021-070140
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Nicole Russ, Peoria
Petitioner/Appellant
Jeremy Tognetti, Surprise
Respondent/Appellee
RUSS v. TOGNETTI
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Chief Judge Kent E. Cattani and Judge Angela K. Paton joined.
M c M U R D I E, Judge:
¶1 Nicole Russ (“Mother”) appeals from the superior court’s
order declaring Jeremy Tognetti (“Father”) the legal father of the child,
Riley,1 and ordering joint legal decision-making, equal parenting time, and
child support. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On June 9, 2014, Mother and Father signed a voluntary
acknowledgment of paternity at Riley’s birth. The parties were never
married, but they resided with Riley until their separation in August 2020.
The parties struggled to amicably co-parent Riley. In February 2021, Mother
petitioned the superior court to decide paternity, legal decision-making,
parenting time, and child support.
¶3 The court held a resolution management conference, during
which Mother asked the court to order Father and Riley to take a genetic
paternity test. The court granted the request, and the examination revealed
that Father is not Riley’s biological father.2 As a result, Mother proposed
that the court award her sole legal decision-making and name her the
primary residential parent. Father argued that because he has served in a
parental role for seven years, it is in Riley’s best interest that he remain in
Riley’s life. For that reason, he asked the court to order joint legal
decision-making and equal parenting time. Father also conceded that child
support should be awarded and stated his income was around $4580 per
month.
1 To protect the child’s identity, we refer to him by a pseudonym.
2 We note that no third party has moved to intervene or appeared
claiming to be the biological father.
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Decision of the Court
¶4 After an evidentiary hearing, the court issued a judgment for
paternity, legal decision-making, parenting time, and child support. The
court explained that a voluntary paternity acknowledgment is given the
same force and effect as a judgment. Either party may rescind that
judgment for any reason up to 60 days after the last signature is affixed to
a filed acknowledgment. After 60 days, a party may only rescind the
judgment within six months based on fraud, duress, or mistake of material
fact. Thus, the court determined that Mother was time-barred from
challenging the acknowledgment of Father’s paternity and declared that
Father is Riley’s legal parent. See A.R.S. § 25-401(4).
¶5 The court then analyzed the best-interests factors under
A.R.S. §§ 25-403 and -403.01, noting that Riley “has a good relationship with
both Mother and Father.” The court cited Mother’s testimony that Riley
“loves” Father, and Father has been “very involved” in Riley’s life.
Ultimately, the court found that it was in Riley’s best interest for Mother
and Father to share joint legal decision-making authority and equal
parenting time. Based on Father’s stated monthly income of $4580, the court
ordered him to pay $95 per month for child support per the child support
guidelines.
¶6 Mother appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶7 Mother argues that the court erred by (1) concluding that
Mother was time-barred from challenging paternity, (2) ordering joint legal
decision-making and equal parenting time, (3) failing to order child support
retroactively, and (4) incorrectly determining Father’s income when
calculating child support.
¶8 We will accept the court’s factual findings as true unless they
are clearly erroneous, but we review its conclusions of law de novo. Birnstihl
v. Birnstihl, 243 Ariz. 588, 590–91, ¶ 8 (App. 2018). We review child support,
legal decision-making, and parenting time orders for an abuse of discretion.
Id. (child support); Oleson v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App. 2021) (legal
decision-making); DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019)
(parenting time). “We hold unrepresented litigants in Arizona to the same
standards as attorneys.” Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017).
¶9 The superior court correctly concluded that Mother is
time-barred from challenging paternity because she commenced this action
long after the six-month time limit imposed by Rule 85(c)(1). When a child
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Decision of the Court
is born out of wedlock, the parents may establish paternity by a signed
acknowledgment. A.R.S. § 25-812(A)(1). An acknowledgment of paternity
has the same force and effect as a court judgment. A.R.S § 25-812(D). Either
parent may rescind that judgment for any reason within 60 days of filing
the acknowledgment. A.R.S. § 25-812(H)(1). After 60 days, however, the
parents may only challenge the acknowledgment of paternity based on
fraud, duress, or mistake of material fact. A.R.S. § 25-812(E); see also Roger S.
v. James S., 251 Ariz. 555, 568, ¶¶ 16–17 (App. 2021). But challenges to
judgments based on fraud, misrepresentation, or other party misconduct
can only be made up to six months after the judgment. Ariz. R. Fam. P.
85(b)(3), (c)(1); see Andrew R. v. ADES, 223 Ariz. 453, 457–58, ¶¶ 17–19 (App.
2010) (time limits imposed by court rules are incorporated into A.R.S.
§ 25-812(E)). Mother seeks to challenge the judgment of Father’s paternity
more than six years too late.
¶10 Mother also argues that the court abused its discretion when
determining legal decision-making and parenting time because “there was
overwhelming evidence” that Mother and Father cannot co-parent, Father
did not maintain frequent contact with Riley, and Mother was always the
primary caretaker. But the court considered Mother’s testimony that Riley
“loves” Father and that Father has been “very involved” in Riley’s life and
concluded it is in Riley’s best interest that Father remain in Riley’s life. The
court did not abuse its discretion by ordering joint legal decision-making
and equal parenting time.
¶11 Finally, Mother challenges the court’s child support order.
She first argues the court “should have ordered arrears” for August 2020 to
August 2021 when Mother and Father were separated while Mother took
primary care of Riley. But there was no prior child support order from
which Father could owe arrearages. Moreover, even if we interpret
Mother’s argument as one for retroactive child support under A.R.S.
§ 25-809(A) and (B), she does not assert that she made such a request to the
superior court and presents no argument that the court erred by not sua
sponte ordering retroactive support. See Gelin v. Murray, 251 Ariz. 544, 547,
¶¶ 15–16 (App. 2021) (court has the discretion to impose past support).
¶12 Mother also argues that the court erred by determining
Father’s monthly income based only on his pretrial statement, which
included no earnings from his business. But Mother did not raise the issue
below, and we will not consider it for the first time on appeal. See Odom v.
Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007) (“Generally,
arguments raised for the first time on appeal are untimely and deemed
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Decision of the Court
waived.”); see also ARCAP 13(a)(7)(A) (argument must contain citations of
legal authorities on which appellant relies).
CONCLUSION
¶13 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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