Arvizu v. Fernandez, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtWEISBERG; LANKFORD, J., and LEVI RAY HAIRE
Citation902 P.2d 830,183 Ariz. 224
PartiesIn re the Marriage of Armando ARVIZU, Petitioner-Appellee, v. Elvira (Arvizu) FERNANDEZ, Respondent-Appellant. 93-0379.
Decision Date29 August 1995
Docket NumberCA-CV,No. 1

Page 830

902 P.2d 830
183 Ariz. 224
In re the Marriage of Armando ARVIZU, Petitioner-Appellee,
v.
Elvira (Arvizu) FERNANDEZ, Respondent-Appellant.
No. 1 CA-CV 93-0379.
Court of Appeals of Arizona,
Division 1, Department B.
Aug. 29, 1995.

Page 831

[183 Ariz. 225] Armando C. Arvizu, Phoenix, petitioner-appellee in propria persona.

Elvira (Arvizu) Fernandez, Avondale, respondent-appellant in propria persona.

OPINION

WEISBERG, Judge.

In 1993, appellant Elvira Fernandez ("mother") brought contempt proceedings against appellee Armando C. Arvizu ("father") for failure to pay child support arrearages ordered pursuant to a 1971 divorce decree. At the hearing, father alleged that he was not the father of one of the children born during the marriage. The court ordered the parties and the child to submit to blood DNA tests to establish paternity. The mother filed this appeal from that order. We hold that father is barred by laches from now challenging the paternity of the child and, therefore, vacate the trial court's order.

Facts and Procedural History

On December 11, 1970, father filed a complaint for divorce from mother. He alleged there were two children born of the marriage, including Armando Arvizu, Jr. ("Armando, Jr."). On March 26, 1971, the court

Page 832

[183 Ariz. 226] entered a decree of divorce. Mother was awarded custody of the children and father was ordered to pay child support in the amount of $50 per month per child. Father did not appeal the decree. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 25-325. In 1981, pursuant to the parties' stipulation, the court increased the child support to $200 per month per child beginning in 1983.

In late 1985, mother filed a petition for contempt, alleging that father was in arrears in support payments. The court subsequently found father to be delinquent in his payment of child support, awarded mother judgment for arrearages in the amount of $13,175, and increased prospective child support to $310 per month for Armando, Jr.

In 1993, mother filed another petition for contempt, alleging father's failure to pay support arrearages. It is this petition that eventually led to the present appeal. At the resulting hearing, father alleged that he was not the father of Armando, Jr., who was then twenty-three years old. Mother denied this allegation. The court then issued a minute entry order, dated June 1, 1993, ordering "that the parties submit themselves to DNA paternity/maternity testing through United Blood Services and that United Blood Services issue a report to the parties and the Court." The court continued the hearing until September 14, 1993, to await the paternity report.

On June 14, 1993, mother filed a notice of appeal from the trial court's order requiring the paternity testing.

Discussion

A. Jurisdiction

1. Appealability of the Trial Court Order

Mother asserts that this court has jurisdiction over the paternity testing order under A.R.S. section 12-2101(C), which allows an appeal "[f]rom any special order made after final judgment." Although father has not challenged our jurisdiction, this court has the duty to inspect its jurisdiction sua sponte. See Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981). The jurisdictional question, which is one of first impression, is whether a paternity testing order, made after the final decree of divorce, is a "special order made after final judgment" that is appealable under A.R.S. section 12-2101(C).

Without discussing the underlying rationale, the Arizona cases applying A.R.S. section 12-2101(C) have simply held that the order in question either was or was not appealable. See, e.g., John Carollo Engineers v. Sharpe, 117 Ariz. 413, 416, 573 P.2d 487, 490 (1977) (grant of motion for reconsideration from entry of summary judgment is appealable); Young Mines Co. v. Blackburn, 22 Ariz. 199, 202-03, 196 P. 167, 169 (1921) (order reinstating case after being dismissed for lack of prosecution is the same as an order vacating an order of dismissal, and has the same effect as the reversal of a judgment and is appealable); M & M Auto Storage Pool, Inc. v. Chemical Waste Management, Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990) (order denying or granting motion to set aside judgment is appealable); Gibbons v. Badger Mut. Ins. Co., 11 Ariz.App. 485, 489, 466 P.2d 36, 40 (1970) (denial of motion to set aside judgment under Rule 60(c), Arizona Rules of Civil Procedure, is appealable).

Arizona adopted A.R.S. section 12-2101 in part from a California statute, which is now section 904.1 of the California Code of Civil Procedure. See A.R.S. § 12-2101 (1994) (Historical and Statutory Notes). The California courts have discussed the rationale behind their statute.

In Lakin v. Watkins Associated Indus., 6 Cal.4th 644, 25 Cal.Rptr.2d 109, 863 P.2d 179 (1993), the California Supreme Court considered whether a post-judgment order denying attorney's fees was...

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73 practice notes
  • Duckworth v. Kamp, No. 2871, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • May 30, 2008
    ...and Ms. Duckworth. Our conclusion is consistent with cases in other jurisdictions addressing similar situations. In Arvizu v. Fernandez, 183 Ariz. 224, 902 P.2d 830 (App.1995), the Court of Appeals of Arizona considered whether Armando Arvizu could challenge the paternity of his son twenty ......
  • Brumett v. MGA Home Healthcare, L.L.C., No. 1 CA–CV 15–0047 (Consolidated)
    • United States
    • Court of Appeals of Arizona
    • July 28, 2016
    ..., 94 Ariz. 327, 329, 385 P.2d 208 (1963), and other post-judgment rulings relating to a final judgment, see Arvizu v. Fernandez , 183 Ariz. 224, 226–27, 902 P.2d 830 (App. 1995) ("To be appealable, a post-judgment order must fulfill two requirements. First, the issues raised by the appeal f......
  • Cox v. Goretti, No. 2 CA-CV 2015-0029
    • United States
    • Court of Appeals of Arizona
    • May 31, 2016
    ...¶¶ 15, 19, 264 P.3d at 874-75 (post-decree order regarding spousal maintenance appealable under § 12-2101(A)(2)); Arvizu v. Fernandez, 183 Ariz. 224, 226, 902 P.2d 830, 832 (App. 1995). The 2014 order resulted from Goretti's motion for enforcement of the decree, and it obligated Cox to pay ......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • August 31, 2000
    ...and it must not be "merely `preparatory' to a later proceeding that might affect the judgment or its enforcement." Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (1995), quoting Lakin v. Watkins Associated Indus., 6 Cal.4th 644, 25 Cal.Rptr.2d 109, 863 P.2d 179, 184 ¶ 4 Th......
  • Request a trial to view additional results
72 cases
  • Duckworth v. Kamp, No. 2871, Sept. Term, 2006.
    • United States
    • Court of Special Appeals of Maryland
    • May 30, 2008
    ...and Ms. Duckworth. Our conclusion is consistent with cases in other jurisdictions addressing similar situations. In Arvizu v. Fernandez, 183 Ariz. 224, 902 P.2d 830 (App.1995), the Court of Appeals of Arizona considered whether Armando Arvizu could challenge the paternity of his son twenty ......
  • Brumett v. MGA Home Healthcare, L.L.C., No. 1 CA–CV 15–0047 (Consolidated)
    • United States
    • Court of Appeals of Arizona
    • July 28, 2016
    ..., 94 Ariz. 327, 329, 385 P.2d 208 (1963), and other post-judgment rulings relating to a final judgment, see Arvizu v. Fernandez , 183 Ariz. 224, 226–27, 902 P.2d 830 (App. 1995) ("To be appealable, a post-judgment order must fulfill two requirements. First, the issues raised by the appeal f......
  • Cox v. Goretti, No. 2 CA-CV 2015-0029
    • United States
    • Court of Appeals of Arizona
    • May 31, 2016
    ...¶¶ 15, 19, 264 P.3d at 874-75 (post-decree order regarding spousal maintenance appealable under § 12-2101(A)(2)); Arvizu v. Fernandez, 183 Ariz. 224, 226, 902 P.2d 830, 832 (App. 1995). The 2014 order resulted from Goretti's motion for enforcement of the decree, and it obligated Cox to pay ......
  • In re Marriage of Dorman, No. 2 CA-CV 99-0113.
    • United States
    • Court of Appeals of Arizona
    • August 31, 2000
    ...and it must not be "merely `preparatory' to a later proceeding that might affect the judgment or its enforcement." Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (1995), quoting Lakin v. Watkins Associated Indus., 6 Cal.4th 644, 25 Cal.Rptr.2d 109, 863 P.2d 179, 184 ¶ 4 Th......
  • Request a trial to view additional results

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