Angelica R. v. Popko, 1 CA-SA 21-0248

CourtCourt of Appeals of Arizona
Citation67 Arizona Cases Digest 21,509 P.3d 392
Docket Number1 CA-SA 21-0248
Parties ANGELICA R., Petitioner, v. The Honorable Sigmund POPKO, Commissioner of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Commissioner, Jake V., Real Party in Interest.
Decision Date31 March 2022

67 Arizona Cases Digest 21
509 P.3d 392

ANGELICA R., Petitioner,
The Honorable Sigmund POPKO, Commissioner of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Commissioner,

Jake V., Real Party in Interest.

No. 1 CA-SA 21-0248

Court of Appeals of Arizona, Division 1.

FILED March 31, 2022

Berkshire Law Office PLLC, Tempe, By Keith Berkshire, Alexandra Sandlin, Counsel for Petitioner

Tiffany & Bosco PA, Phoenix, By Alexander Poulos, Amy D. Sells, Counsel for Real Party in Interest

Judge Randall M. Howe delivered the opinion of the court, in which Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

HOWE, Judge:

¶1 In this special action proceeding, Angelica R. challenges the Juvenile Court's order denying her motions contesting Jake V.’s motion to set aside an order terminating his rights to their child, Z.R., filed more than six months after the termination order. She argues that, unlike its Arizona Rule of Civil Procedure counterpart, the Arizona Rule of Juvenile Court Procedure ("Rule") 46(E)1 places a strict six-month time limit on any motion to set aside, including for claims of fraud upon the court and voidness.

¶2 We accept jurisdiction because Angelica has no adequate remedy by appeal, Ariz. R.P. Spec. Act. 1(a), this dispute involves the best interests of a child, Dep't of Child Safety v. Beene , 235 Ariz. 300, 303 ¶¶ 6–7, 332 P.3d 47, 50 (App. 2014), and presents a purely legal question of public importance that is likely to arise again, Green v. Nygaard , 213 Ariz. 460, 462 ¶ 6, 143 P.3d 393, 395 (App. 2006). We deny relief, however, because Rule 46(E) does not limit a court's inherent authority to set aside a judgment for fraud upon the court or to vacate a void judgment.


¶3 Angelica gave birth to Z.R., in May 2018. On October 6, 2020, Angelica petitioned the family court to establish that Jake was Z.R.’s father and determine legal decision making, parenting time, and child support. The next day, she submitted a stipulation that adjudged Jake the child's father, awarded her sole decision-making authority, and

509 P.3d 395

restricted Jake's parenting time. The stipulation contained what purported to be Jake's notarized signature. The family court entered the stipulation as an order.

¶4 On December 2, 2020, Angelica petitioned to terminate Jake's parental rights in juvenile court. She attached a consent to terminate parental rights and a waiver of notice and appearance, both apparently signed by Jake. The juvenile court appointed counsel to represent Jake. Jake's counsel, however, never contacted him to discuss the matter. Angelica's counsel had emailed Jake's counsel a copy of a letter containing what purported to be Jake's notarized signature that claimed that Jake knew about the pending termination and its hearing date, had consented and waived notice, and did not want his attorney to contact him.

¶5 The juvenile court held a termination hearing without Jake present on February 9, 2021. Only Angelica testified. She claimed that Jake had "completely consented" to the termination. When asked if Jake had signed a consent, she testified, "Yes, and they're all notarized[.]" When asked if Z.R. had met her paternal grandparents, she said "No." She also testified that Jake did not abuse the child in any way and that she wanted termination so that, if she later married, her husband could adopt the child. The juvenile court terminated Jake's parental rights to Z.R. on the evidence presented at the hearing.

¶6 Six and a half months later, on September 8, 2021, Jake moved the juvenile court to reconsider and, alternatively, for a new trial, to alter or amend the judgment, or set aside the judgment. Jake claimed that he did not know until August 30, 2021, that Angelica had petitioned to terminate his parental rights or that the court had done so. He stated that he had been involved in Z.R.’s life from birth, lived in Angelica's family home while Angelica was pregnant and for the first two months after Z.R.’s birth, and continued to visit Z.R. after he had moved out of the home. He alleged that he did not sign some of the documents submitted to the juvenile court, and those that he did sign had been under the pretenses of a material misrepresentation and mistake of fact. He claimed that he had never seen the substance of any court documents Angelica claimed he had signed, and that Angelica's father showed him only the signature page and said that he needed to sign this "if there's a medical emergency and we can't reach you." He also asserted that Angelica had committed perjury and fraud in the termination hearing by submitting forging documents and lying about his family's involvement with Z.R.

¶7 Angelica opposed Jake's motions and sought declaratory relief, arguing that his motions were untimely under the Rule 46(E) and lacked merit. Jake replied that the termination order was void for lack of consent and violated his due process rights. He also argued that Angelica had perpetrated a fraud on the court. In support, Jake attached photographs, documents, and affidavits from friends and family evidencing Jake's and his family's extensive relationship with Z.R.

¶8 After further briefing and argument, the juvenile court denied Jake's motions for reconsideration and a new trial or to alter or amend a judgment because no Rule of Juvenile Procedure authorized such motions in termination proceedings. It found, however, that Jake's motion to set aside was timely. It acknowledged that Rule 46(E) specified the time to file a motion to set aside a judgment at six months generally and three months for certain grounds. It also recognized, however, that the rule otherwise followed the requirements of Arizona Rule of Civil Procedure 60 ("Civil Rule 60"), and Arizona courts had interpreted Civil Rule 60 to not apply time limits to motions challenging judgments on the grounds of fraud on the court or voidness. Because Jake had moved to set aside the judgment on those grounds, the court found Rule 46(E)’s general time limits did not apply.

¶9 The juvenile court consequently denied as moot Angelica's motions for declaratory relief and to dismiss and expressed its intention to conduct further proceedings on Jake's motion to set aside. Angelica brought this special action challenging that ruling.


¶10 Angelica argues that the court erred in denying her motions because Jake's

509 P.3d 396

motion to set aside was untimely under Rule 46(E). The granting or denying a motion to set aside a judgment is reviewed for an abuse of discretion, Aloia v. Gore , No. 1 CA–CV 20-431, 252 Ariz. 548, 506 P.3d 34, 37 ¶ 11 (App. Feb. 15, 2022), but the interpretation of a procedural rule is a question of law reviewed de novo, id. ; In re Reymundo F. , 217 Ariz. 588, 590 ¶ 5, 177 P.3d 330, 332 (App. 2008). This court employs principles of statutory construction when interpreting procedural rules, State v. Harden , 228 Ariz. 131, 132 ¶ 6, 263 P.3d 680, 681 (App. 2011), and construes a rule consistently with the state and federal constitution, see, e.g. , Jones v. Sterling , 210 Ariz. 308, 315 ¶ 27, 110 P.3d 1271, 1278 (2005). The court should consider "the system of related [rules] of which it forms a part." Reymundo F. , 217 Ariz. at 590 ¶ 5, 177 P.3d at 332. The "judicial interpretation of a court rule becomes as much a part of the rule as if the words were originally included therein." State v. Baca , 187 Ariz. 61, 63, 926 P.2d 528, 530 (App. 1996). Accordingly, a rule should also not be interpreted to deny, preempt, or abrogate common-law principles unless the rule's text or history shows an explicit intent to reach such a severe result. Hayes v. Continental Ins. Co. , 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994). The intent of the drafters as indicated by the plain language of a rule is paramount, Fragoso v. Fell , 210 Ariz. 427, 430 ¶ 7, 111 P.3d 1027, 1030 (App. 2005), but text should not be read in isolation, Reymundo F. , 217 Ariz. at 590 ¶ 5, 177 P.3d at 332.

¶11 The juvenile court did not err in finding Jake's motion timely. Courts can relieve a party from a judgment when, by fraud on the court, the other party has prevented a real contest before the court or has committed some intentional act or conduct that has prevented the unsuccessful party from having a fair submission of the controversy. See Alvarado v. Thomson , 240 Ariz. 12, 16–17 ¶¶ 17–23, 375 P.3d 77, 81–82 (App. 2016). Fraud on the court "vitiates everything it touches[,]" Damiano v. Damiano , 83 Ariz. 366, 369, 321 P.2d 1027 (1958), and is "the most egregious conduct involving a corruption of the judicial process itself[,]" Lake v. Bonham , 148 Ariz. 599, 601, 716 P.2d 56, 58 (App. 1986). Courts therefore have inherent authority to take corrective measures at any time when a party commits or attempts to commit fraud upon them. See Green v. Lisa Frank, Inc. , 221 Ariz. 138, 151 ¶ 35, 211 P.3d 16, 29 (App. 2009) ; McNeil v. Hoskyns , 236 Ariz. 173, 177 ¶ 15, 337 P.3d 46, 50 (App. 2014) ("A judgment resulting from fraud on the court may be set aside by motion or by independent action."). Courts have this authority even in cases addressing parentage and adoption. See Alvarado , 240 Ariz. at 16–17 ¶¶...

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