WINTHROP, Presiding Judge.
¶ 1 In this opinion, we construe the effect of Rule 60(c), Ariz. R. Civ. P., on Arizona Revised Statutes ("A.R.S.") section 25-812(E) (Supp.2008), which provides for challenges to a voluntary acknowledgement of paternity "[p]ursuant to rule 60(c) of the Arizona rules of civil procedure." Andrew R. ("Appellant") appeals from the juvenile court's orders granting the Rule 60(c)(3) motion of Jessica H. ("Mother") for relief from a judgment of paternity and denying a motion for change in physical custody to Appellant. Because we conclude that the juvenile court should have applied the six-month time limit of Rule 60(c)(3) to Mother's motion in construing A.R.S. § 25-812(E), we vacate the court's orders and remand to the superior court for further proceedings consistent with this opinion, including reconsideration of the issue of custody.
FACTS AND PROCEDURAL HISTORY
¶ 2 Mother was seventeen years old when Jocelyn R. ("the child") was born in July 2007. When Mother left the hospital after the birth, she had not provided a father's name for the birth certificate. Mother initially lived with her mother but, due to disagreements involving her mother's boyfriend and Mother's desire to be "independent," Mother moved in with Appellant and his mother and mother's girlfriend. On December 14, 2007, Mother and Appellant signed an acknowledgement of paternity
¶ 3 Meanwhile, although living with Appellant and his family, Mother began dating Terry W., a purported drug abuser. In early February 2008, Mother, Appellant, and the child moved out of Appellant's mother's home and began living in an apartment with Mother's brother, who had allegedly molested Mother when she was a child. Appellant moved out of the apartment in mid-March 2008, and Terry W. moved in a few days later. Approximately two weeks after Appellant moved out, Child Protective Services began an investigation based on a report of unsanitary and unhealthy living conditions and drug use in the apartment. The apartment's occupants were eventually evicted.
¶ 5 At the April 14, 2008 preliminary protective hearing, the juvenile court found the child dependent as to Mother. The court issued a preliminary protective order making the child a temporary ward of the court in the legal care, custody, and control of ADES and placing her in the physical custody of the maternal grandmother.
¶ 6 On April 28, 2008, the juvenile court held an initial dependency hearing regarding Appellant, who contested the allegations of the petition. The parties also discussed the issue of Appellant's paternity and the possibility that another male, Randy B., was the child's biological father. Appellant conceded that he might not be the biological father based on the results of a home-administered paternity test obtained from an internet website,
¶ 7 Appellant sought extensive visitation and, pursuant to mediation, participated in parent aide services, substance abuse assessment/treatment, and substance abuse testing. At the June 11, 2008 pretrial conference, ADES agreed to an in-home dependency that would have put the child in Appellant's custody. However, Mother and the child's guardian ad litem objected and requested a paternity test. The court affirmed the current placement and set an evidentiary hearing for June 25, 2008.
¶ 8 At the June 25 evidentiary hearing, the parties, including ADES and the guardian ad litem, discussed changing physical custody of the child to Appellant or Mother, but various objections were voiced. The juvenile court scheduled a contested evidentiary hearing regarding any motions for a change in physical custody of the child.
¶ 9 At a July 14, 2008 report and review hearing, counsel for Appellant requested that Mother file a formal motion pursuant to Rule 60(c) of the Arizona Rules of Civil Procedure if she wished to challenge the acknowledgement of paternity and for the parties to more fully address the factual issues at the scheduled evidentiary hearing. On August 1, 2008, Mother filed a "Notice of Request for Relief from Judgment of Paternity" pursuant to Rule 60(c), requesting relief on the basis that "paternity was established fraudulently and under duress."
¶ 10 On August 13 and 20, 2008, the juvenile court held contested evidentiary hearings regarding the Rule 60(c) motion and the motion for change in custody.
¶ 12 On October 6, 2008, the juvenile court entered its order granting Mother's Rule 60(c) request for relief from the presumption of paternity and denying ADES's motion for change of custody to Appellant. The court found that, although Mother's Rule 60(c) motion was not filed until August 1, 2008, the motion would nonetheless be deemed timely because the contention that someone other than Appellant could be the child's father was raised at the April 14, 2008 initial dependency hearing, the June 11 pretrial conference, and the June 25 evidentiary hearing. The court concluded that relief from the judgment of paternity was appropriate because the parties' signatures on the acknowledgement of paternity, despite evidence indicating they did not believe Appellant was the father, amounted to an act of fraud. The court also concluded that Mother's request was not barred by the doctrine of unclean hands because, although complicit in the fraudulent act, her complicity was slightly more excusable, and the child had not been "a party to the acts which lead [sic] to [Appellant's] name being placed on the birth certificate." The court also denied without prejudice the motion for change of physical custody to Appellant pending additional confidential paternity testing on Randy B. and the child.
¶ 13 On October 10, 2008, Appellant filed a timely notice of appeal.
¶ 14 Appellant argues that the juvenile court erred in granting Mother's motion for relief from the court's judgment of paternity and denying the motion for change in physical custody to Appellant.
¶ 15 Because the juvenile court is "in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings," Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), this court will not disturb the court's disposition in a dependency action unless its findings of fact were clearly erroneous and there is no reasonable evidence to support them. Pima County Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App.1994); Maricopa County Juv. Action No. JD-500325, 163 Ariz. 455, 456, 788 P.2d 1206, 1207 (App.1989).
¶ 16 We nevertheless review de novo the interpretation of statutes and rules. Pima County v. Pima County Law Enforcement
¶ 17 Pursuant to A.R.S. § 25-812(A)(1), "[t]his state or the parent of a child born out of wedlock may establish the paternity of a child by filing ... with the clerk of the superior court, the department of economic security or the department of health services ... [a] notarized or witnessed statement ... signed by both parents acknowledging paternity."
¶ 18 Under A.R.S. § 25-812(D), a voluntary acknowledgement of paternity properly executed may be filed with ADES, which shall provide a copy to the Department of Health Services, and those actions and that affidavit shall be deemed to be a determination of paternity given the same force and effect as a superior court judgment. With the exception of a further limiting factor not applicable here, see A.R.S. § 25-812(H)(2), either the mother or the father may seek to unilaterally rescind that judgment for any reason for up to "[s]ixty days after the last signature is affixed to the notarized acknowledgement of paternity that is filed with the department of economic security, the department of health services or the clerk of the court." A.R.S. § 25-812(H)(1). Consequently, Mother could have rescinded the acknowledgement of paternity for any reason within sixty days of signing it on December 14, 2007.
¶ 19 After expiration of the sixty-day rescission period, a mother, father, child, or other party to the proceeding may challenge an acknowledgement of paternity only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the challenger. See A.R.S. § 25-812(E)
¶ 20 Further, we are unpersuaded by the juvenile court's rationale for tolling the prescribed six-month time limit. We recognize that, since inception of the dependency action, the court was made aware that Appellant might not be the biological father of the child, and the issue, including whether "fraud" had been committed by adding Appellant to the birth certificate, was discussed extensively by counsel and the court throughout the dependency proceedings. Nevertheless, the fact that the parties were aware of the possibility that Appellant might not be the biological father is insufficient to satisfy the mandate of Rule 60(c)(3), which plainly requires that a motion "shall be filed" within the six-month period "after the judgment or order was entered or proceeding was taken." Further, Rule 6(b), Ariz. R. Civ. P., prohibits extending the time for taking any action under various specified rules, including Rule 60(c), "except to the extent and under the conditions stated in them," unless the court makes specific findings, which are inapplicable to this case.
¶ 21 The juvenile court also could not have relied on Rule 60(c)(6), which provides that the court may relieve a party from a final judgment, order, or proceeding for "any
¶ 22 Mother also cites Dockery v. Central Arizona Light & Power Co., 45 Ariz. 434, 450, 45 P.2d 656, 662 (1935),
¶ 23 Further, to the extent that we consider legislative history and intent and public policy in our opinion, we conclude that these factors support our conclusion. Section 25-812 was originally added to Arizona's statutory scheme as A.R.S. § 12-852 in 1989. See 1989 Ariz. Sess. Laws, ch. 295, § 1 (1st Reg. Sess.). The statute provided for a child's paternity to be established alternately through a birth certificate, a signed affidavit, or genetic testing. Id. In 1994, the legislature added subsection (D) to the statute, which provided a statutory mechanism for challenging a voluntary acknowledgement of paternity.
¶ 24 We further note that there exists a strong public intent to advance a child's best interest by providing that child with permanency. See generally James S. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 351, 356, ¶ 19, 972 P.2d 684, 689 (App.1998). Construing the term "at any time" in A.R.S. § 25-812(E) to mean "at any time including after the six-month limitation period applicable to Rule 60(c)(3)" would effectively allow Mother to hold a paternity challenge over Appellant's head for an interminable time, perhaps many years after the parties had acknowledged paternity. Certainly, the legislature could not have intended such a result. See In re MH 2006-000749, 214 Ariz. 318, 321-22, ¶ 17, 152 P.3d 1201, 1204-05 (App.2007) (stating that we apply the plain meaning of a statute unless such an interpretation would lead to an absurd result or one at odds with the intent of the legislature (citing Resolution Trust Corp. v. W. Techs., Inc., 179 Ariz. 195, 201, 877 P.2d 294, 300 (App.1994))). As we have noted, had Mother and Appellant wished to establish paternity through proper genetic testing before acknowledging paternity, they could have done so. See A.R.S. § 25-812(A)(2). However, they declined to exercise that option. At some point in time, a child's need for permanency must outweigh the ability of a party who has acknowledged paternity to challenge that acknowledgement.
¶ 25 Because Mother failed to timely file her Rule 60(c)(3) motion for relief from the judgment of paternity, the juvenile court
CONCURRING: PATRICK IRVINE, Judge.
WEISBERG, Judge, Dissenting.
¶ 26 I respectfully dissent from the majority's conclusion that the time limit of Rule 60(c)(3) has been incorporated into A.R.S. § 25-812(E) ("the Statute") and thereby time-bars Mother's motion to challenge the voluntary acknowledgment of paternity. I do so for four reasons.
¶ 27 First, our primary task in interpreting a statute "is to determine and give effect to the legislature's intent, and the first place to look is the wording of the statute." In re Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App.2001) (quoting Tobel v. State, Arizona Dept. of Pub. Safety, 189 Ariz. 168, 174, 939 P.2d 801, 807 (App.1997)). "If the language of the statute is plain and unambiguous, we are counseled to simply follow the plain meaning." Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 157, ¶ 15, 7 P.3d 960, 963 (App.2000). Also, "[t]he court must, if possible, give meaning to each clause and word in the statute or rule to avoid rendering anything superfluous, void, contradictory or insignificant." Devenir Assoc. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991). "This principle applies with particular force to a word or phrase purposely inserted into an existing statute by amendment." Sherman v. City of Tempe, 202 Ariz. 339, 343, ¶ 16, 45 P.3d 336, 340 (2002); See also Carrow Co. v. Lusby, 167 Ariz. 18, 20, 804 P.2d 747, 749 (1990) ("Legislative intent often can be discovered by examining the development of a particular statute.").
¶ 28 The Statute provides that a challenge to the paternity acknowledgement may be made at any time after the sixty-day period for rescinding the acknowledgement of paternity. This plain language is at odds with the majority's construction of the Statute that the "sixty-day rescission period exists within the six-month period for seeking relief on the basis of Rule 60(c)(3)". See ¶ 20, note 12, supra. Under the majority's interpretation, "at any time" must be read as "at any time within the six months allowed by Rule 60(c)." Obviously, that reading is inconsistent with the language chosen by the legislature and would render the phrase "at any time" meaningless and inconsistent with its ordinary meaning.
¶ 29 But construing the phrase "at any time" according to its plain meaning yields a different result. According to its ordinary understanding, "the right to do a thing at any time is taken to be a grant of time without limit." Haworth v. Hubbard, 220 Ind. 611, 44 N.E.2d 967, 969 (1942). See also Carter v. State, 786 So.2d 1173, 1176 (Fla. 2001) (procedural rule that provides for correction of illegal sentence at any time, "vests trial courts with the broad authority to correct an illegal sentence without imposing a time limitation on the ability of defendants to seek relief"); Marshak v. Treadwell, 240 F.3d 184, 192 (3rd Cir.2001) (meaning of phrase in federal statute that allowed filing of petition to cancel a registered trademark "`at any time,' ... means what it says," and thus "is not subject to any time limit"); Webster's Ninth New Collegiate Dictionary 93 (1988)("at any time" means "at any time whatever"). I therefore interpret "at any time" as not being subject to Rule 60(c)'s six-month time limitation.
¶ 30 Second, the legislative history of the Statute supports this interpretation. In 1994, the legislature added subsection (D) to former A.R.S. § 12-852, which provided in part that "[t]he mother, father or child, a party to the proceeding on a motion or the court on its own motion may bring an action to challenge a voluntary acknowledgement of paternity" and authorized the court to order appropriate genetic testing. See 1994 Ariz. Sess. Laws, ch. 374, § 4 (2
¶ 31 In 1998, the legislature amended former section 25-812(D), now section 25-812(E), limiting the grounds to challenge the voluntary acknowledgment of paternity under Rule 60(C) to "fraud, duress or material mistake of fact." The legislature further provided that such Rule 60(c) motion may be brought "at any time after the sixty-day period [for rescinding the acknowledgment under new subsection H] ..." See 1997 Ariz. Sess. Laws, ch. 219, § 39 (1
¶ 32 Third, I recognize that the sixth-month limit applicable to certain grounds in Rule 60(c) "was designed to ensure the finality of judgments." Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982); see also City of Phoenix v. Geyler, 144 Ariz. 323, 329, 697 P.2d 1073, 1079 (1985) (disapproving Rule 60(c) relief when party really seeks delayed appeal; while courts favor an "equitable disposition on the merits, ... there is a `compelling interest in the finality of judgments' which should not lightly be disregarded"). However, that sort of finality is out of place when dealing with an acknowledgement of paternity.
¶ 33 In many civil cases, lawyers follow strict and complicated rules and statutes in order to obtain a formal judgment. Often there are multiple parties with numerous claims involving complex and disputed factual matters and legal issues. Therefore, in most civil lawsuits, the difficulty, expense, and intricacy involved in obtaining a judgment, in addition to the fundamental need to resolve the dispute itself, weigh heavily in favor of finality.
¶ 34 In contrast, a voluntary acknowledgment of paternity under § 25-812 is fairly straightforward, rarely the subject of a dispute, involves few parties and is easily accomplished without legal representation. Also, in the absence of explicit language, it is unrealistic to assume a lay person would understand that the sixth-month time limit of Rule 60(c) applies when challenging a voluntary acknowledgment of paternity under A.R.S. § 25-312(E). Moreover, and most importantly, because of the nature of a paternity action and its importance not only to the mother and putative father, but also to the child, a disposition on the merits outweighs the need for finality. In this case, where actual paternity is uncertain, the natural father's right to a determination ought not be precluded. Also, as the majority recognizes in ¶ 19, n. 10, even under its interpretation of the Statute, the issue of paternity cannot yet be regarded as final as to the child.
¶ 35 Fourth, as the trial court implicitly recognized here, genetic testing provides a simple means to establish paternity with near certainty. It is no longer necessary to rely on assumptions about the identity of the biological father that may not be factually correct because of fraud, duress, or mistake. When a proper party in these circumstances requests a definitive answer to this question, any doubts can, and in my view should, be resolved once and for all by scientific evidence.
¶ 36 For all of the foregoing reasons, I would affirm the juvenile court's orders.
We do not address to whom the term "party to the proceeding" applies or whether someone not a party to the proceeding, such as an alleged father who subsequently comes forward, would be constrained in any way by A.R.S. § 25-812(E) when independently challenging a voluntary acknowledgement of paternity. Cf. R.A.J. v. L.B.V., 169 Ariz. 92, 95, 817 P.2d 37, 40 (App.1991) (concluding that the term "out of wedlock" in a paternity statute limits when a guardian or best friend may bring a paternity action, but does not affect when a mother or father may initiate such a proceeding) (citing Ban v. Quigley, 168 Ariz. 196, 198-99, 812 P.2d 1014, 1016-17 (App.1990) (interpreting former A.R.S. §§ 12-843(A) and 12-846(B))). Likewise, we do not address any effect of the statute on the child's right to independently challenge paternity.