Antonsen v. Superior Court In and For County of Maricopa

• Decision Date: 12 March 1996
• Docket Number: No. 1,CA-SA,1
• Citation: 186 Ariz. 1,918 P.2d 203
• Parties: Lisa M. ANTONSEN, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable J.D. Howe, a judge thereof, Respondent Judge, Warren A. ANTONSEN, Timothy Witt, Real Parties in Interest. 95-0352.
• Court: Arizona Court of Appeals

Page 203

918 P.2d 203

186 Ariz. 1

Lisa M. ANTONSEN, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable J.D. Howe, a judge thereof, Respondent Judge Warren A. ANTONSEN, Timothy Witt, Real Parties in Interest.

No. 1 CA-SA 95-0352.

Court of Appeals of Arizona Division 1, Department C.

March 12, 1996.

Review Denied June 19, 1996.

Community Legal Services by George H. McKay, Lisa A. Moore, Jennifer R. Hunter, Peoria, for Petitioner.

David L. Erlichman, Phoenix, for Real Party in Interest Antonsen.

OPINION

CONTRERAS, Presiding Judge.

In this special action, the mother of a child involved in consolidated paternity and dissolution actions challenges the trial court's refusal to order blood testing in the paternity action pursuant to Ariz.Rev.Stat.Ann. (A.R.S.) section 12-847(C), ¹ after the trial court applied the discretionary "good cause" requirement of RULE 35(A), ARIZONA RULES OF CIVIL PROCEDURE², to mother's request for blood testing. Also at issue is the trial court's subsequent expressed intention to decide custody issues in the pending dissolution action only between the husband/presumed father and mother without regard to the putative father's paternity claim.

Facts and Procedural Background

Petitioner Lisa M. Antonsen (mother) and Real Party In Interest Warren A. Antonsen (husband/presumed father) were married on January 9, 1990. The child whose paternity and custody are at issue, B, was born on March 2, 1990. On July 11, 1994, husband filed a petition for dissolution, naming B as a child of the marriage and requesting custody of B and another child common to the parties.

On February 27, 1995, Real Party in Interest Timothy M. Witt (putative father) filed a complaint for paternity, alleging that he was B's natural father, and seeking custody. ³ In the domestic relations action, Commissioner Patricia Shaler-Reed initially ruled on March 17, 1995, on motion of the state child support division, that paternity testing should proceed, but sought a post-hearing memorandum on this issue from husband, and allowed for a response from wife. Husband's post-hearing memorandum, filed April 4, 1995, stated:

Pursuant to Commissioner Shaler-Reed's minute entry of March 17, 1995, please be advised that Petitioner has found no legal basis upon which to request that paternity testing not occur. Petitioner will not be filing further court pleadings requesting that such paternity testing not proceed.

Commissioner Shaler-Reed then entered the following order on April 25, 1995:

The Court having reviewed Respondent's Post-Hearing Memorandum, Rule 35 of the Arizona Rules of Civil Procedure, and the court file,

On the Court's own Motion, the Court having reconsidered its ruling of March 17, 1995 regarding the paternity testing,

THE COURT FINDS AS FOLLOWS:

(1) The minor child, [B], was conceived prior to the marriage and born during the term of the marriage.

(2) The child, [B], is presumptively the child of the marriage.

(3) The Respondent's Motion for Paternity Testing fails to set forth the good cause required by Rule 35 of the Arizona Rules of Civil Procedure.

IT IS THEREFORE ORDERED denying Respondent's Request for Paternity Testing.

(Emphasis added.) Three days later, Commissioner Shaler-Reed signed an "Order for Blood Test" prepared by an assistant attorney general in the child support division, ordering paternity testing at the state's expense and directing that the results be admitted as evidence pursuant toA.R.S. section 12-847(D). On May 4, 1995, Judge Pro Tem Toby Maureen Gerst held a hearing in the domestic relations action on an order to show cause. At that hearing, Judge Gerst consolidated the paternity and dissolution actions, and further ordered:

LET THE RECORD REFLECT that Commissioner Shaler-Reed signed an order requiring blood tests of Warren Antonsen, [the child] and Lisa Antonsen.

IT IS FURTHER ORDERED that blood samples shall be drawn pursuant to that order and the results thereof shall be submitted to this Court on or before May 16, 1995.

Judge Gerst also quashed a temporary order of protection issued by Judge Yarnell at husband's request, and awarded temporary custody of the child to mother, ruling that the court would "enter permanent custody orders pending receipt of the blood test results," and that, if "Mr. Antonsen is not the natural father of the minor child, Mrs. Antonsen shall be awarded permanent custody." Judge Gerst also ruled that, because allegations of child abuse had been made, the case would be referred to DES "for a determination whether dependency proceedings should be initiated," with a report to the court filed by June 6, 1995. Supervised visitation between B and husband was later ordered.

Mother's and B's blood samples were collected on May 9, 1995, and husband's was collected on June 5, 1995, and the results were submitted to the trial court.

On September 21, 1995, in the domestic relations action, Judge Howe held a hearing on husband's motion in limine to exclude the paternity results as evidence in the dissolution action. Judge Joseph D. Howe, not fully informed how the blood testing occurred after Commissioner Shaler-Reed denied the motion, ruled as follows:

The Court will continue its investigation of these matters by conference with all of the judges who have touched them and will determine whether the order for paternity testing was a mistake. If the Court determines the order was a mistake, the paternity results will be sealed and the Court will set a hearing for custody, visitation and support of the child between Warren A. Antonsen and Lisa M. Antonsen. If the Court determines the paternity order was valid, the Court will consider the paternity results and may conclude that Mr. Antonsen has no further rights relating to the child; the Court will set a hearing in the Witt paternity matter to fix custody, visitation and support as between Timothy Witt and Lisa M. Antonsen.

(Emphasis added.)

In the meantime, on August 22, 1995, mother filed a motion for paternity testing pursuant to A.R.S. section 12-847(C). In that motion, mother alleged (1) that husband was not the biological father of the child; (2) that the putative father was the only person with whom she engaged in sexual intercourse at the time of the child's conception; (3) that mother was not acquainted with husband nor married to him at the time of the child's conception; (4) that mother informed husband at the time she learned she was pregnant that the child was not his; and (5) that husband has acknowledged putative father's mother as the child's paternal grandmother. Mother argued that, under these circumstances, blood testing was required under A.R.S. section 12-847(C), and that "good cause" existed to order such testing. Mother's motion sought testing of herself, husband, the child, and the putative father, with the state to advance the costs and the nonparent to bear the costs after the results were received.

Husband filed several additional motions to vacate the prior orders that the blood tests be taken, and Judge Howe entered an extensive ruling on all pending motions on October 31, 1995. Judge Howe ruled the paternity test results "are ordered sealed and the same are ordered excluded from further consideration in these consolidated cases." He also denied both mother's and the state's pending motions for paternity testing in the paternity suit, after notating the following discussion:

Commissioner Shaler-Reed has now vacated her order of April 28, 1995, as improvidently signed. It is evident from applicable bureaucratic procedures du jour with which counsel are familiar, that Commissioner Shaler-Reed's present decision was inevitable, and this judge joins Commissioner Shaler-Reed in wondering why the attorney general and counsel for the respondent continued to argue to this judge that the 4/28/95 order was valid.

This judge has conferred with Commissioner Gerst, who on May 4, 1995, ordered the paternity test relying on the now-vacated order of Commissioner Shaler-Reed. Commissioner Gerst has recused herself from further participation in this case, and indicated no desire to influence further proceedings in it.

This court now concludes that the Gerst order that the paternity test be taken was invalid, based on an order now vacated. Therefore, the Gerst order is ordered vacated. The results of the paternity test are ordered sealed and the same are ordered excluded from further consideration in these consolidated cases.

It is further ordered that the balance of Commissioner Gerst's order, relating to custody and visitation, is displaced by this court's order of August 4, 1995, on the same topic. Finally, to the extent the Gerst order projects that custody will be dependent upon the results of the now-suppressed paternity test, the order is vacated.

The court set a trial date of April 29, 1996, and dismissed any additional pending motions without prejudice to their substance being raised again at trial. Mother filed this special action on December 11, 1995. No stay of trial court proceedings has been sought or is necessary at this time.

Discussion

1. Special Action Jurisdiction

An order regarding paternity testing is an interlocutory, non-appealable order, from which special action may be sought. See, e.g., Ban v. Quigley, 168 Ariz. 196, 197, 812 P.2d 1014, 1015 (App.1990) (mother sought relief from order that blood test be taken; court reasoned that "this case raises a matter of statewide importance and because we conclude that petitioners have no equally plain, speedy, or adequate remedy by direct appeal, we accept jurisdiction and grant relief"). Additionally, cases involving potential custody of young children are also often appropriate for special action relief to achieve a speedy resolution. See, e.g., Olvera v. Superior Court, 168 Ariz. 556, 815 P.2d 925 (App.1991); Marshall v. Superior Court, 145 Ariz. 309, 701...