                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


           STATE OF ARIZONA, ex. rel., Petitioners/Appellants,

                                        v.

         CHRISTOPHER ROBERT MYERS, Respondent/Appellee.

                           No. 1 CA-CV 17-0734 FC
                                FILED 10-25-2018


           Appeal from the Superior Court in Maricopa County
                          No. FC2016-095941
             The Honorable Brian Kaiser, Judge Pro Tempore

   REVERSED AND REMANDED IN PART; VACATED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Carol A. Salvati
Counsel for Petitioners/Appellants

Ronald L. Kossack, Attorney at Law, Tempe
By Ronald L. Kossack
Counsel for Respondent/Appellee
                         STATE, ex. rel. v. MYERS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge David D. Weinzweig joined.


S W A N N, Judge:

¶1             This is a paternity action brought by the state against
Christopher Robert Myers under 42 U.S.C. § 654. The state moved for
summary judgment based on compelling genetic test results. The superior
court denied the state’s motion and in effect entered summary judgment in
favor of Myers based on his theory that the court, in a previous action to
which Myers was not a party, had erroneously nullified the paternity of a
non-party to the paternity action. We hold that because Myers never
directly challenged the order in the separate action, never joined the parties
from that action in the paternity case, and never presented evidence to rebut
the test results, he failed to meet his burden of proof to show a genuine issue
of material fact. We therefore reverse and remand for entry of judgment
for the state, and we vacate the appealed order’s modifications of the non-
party’s paternity and the child’s birth certificate.

                 FACTS AND PROCEDURAL HISTORY

¶2             L. was born out of wedlock in 2006. At the time of L.’s birth,
Juventino Morales Cortez acknowledged paternity and was named on the
birth certificate. L.’s mother and Cortez later married and divorced. The
2009 decree of dissolution declared that Cortez was not L.’s father and
ordered him removed from L.’s birth certificate.

¶3           Years later, in 2016, the state filed a paternity and child-
support action against Myers. Court-ordered genetic testing established
with 99.99% probability that Myers is L.’s biological father.

¶4             The state moved for summary judgment based on the test
results. Myers responded that paternity was already established against
Cortez because the dissolution decree’s nullification of Cortez’s paternity
was void as time-barred under A.R.S. § 25-812. The state replied that the
nullification order was valid and final. Neither party sought to join Cortez
or to intervene in the dissolution case.




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                         STATE, ex. rel. v. MYERS
                           Decision of the Court

¶5             The court denied the state’s motion for summary judgment,
concluding that it had lacked “jurisdiction over the matter of paternity” in
the dissolution case. The court vacated the dissolution decree’s paternity
orders and ordered Cortez “reinstat[ed] . . . as the natural father of [L.]”
based on his “fail[ure] to challenge the voluntary acknowledgment of
paternity within the appropriate period of time.” The court also ordered
that L.’s birth certificate be amended to reflect Cortez’s paternity and L.’s
original surname.

¶6            The state appeals.

                              JURISDICTION

¶7             We have an independent duty to examine our jurisdiction.
Baker v. Bradley, 231 Ariz. 475, 478–79, ¶ 8 (App. 2013). An order denying
summary judgment ordinarily is not appealable. Orme School v. Reeves, 166
Ariz. 301, 302–03 (1990). But here, the superior court did more than merely
deny the state’s summary judgment motion—it effectively granted
summary judgment for Myers without Myers having sought such relief
under Ariz. R. Civ. P. (“Rule”) 56, and it created paternity in a non-party to
the action. We therefore have jurisdiction under A.R.S. § 12-2101(A)(3),
which provides that an appeal may be taken “[f]rom any order affecting a
substantial right made in any action when the order in effect determines the
action and prevents judgment from which an appeal might be taken.”

                               DISCUSSION

¶8              Summary judgment is warranted “if the moving party shows
that there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Rule 56(a).

¶9            The state presented genetic test results sufficient to create a
statutory presumption, rebuttable by clear and convincing evidence, of
Myers’s paternity under A.R.S. §§ 25-807(D) and -814(A)(2) and (C). The
burden of production then shifted to Myers to present sufficient competent
evidence of a genuine issue of material fact, see GM Dev. Corp. v. Cmty. Am.
Mortg. Corp., 165 Ariz. 1, 5 (App. 1990), by way of specific statements of fact
supported by citations to the record, see Rule 56(c)(3)(B).

¶10          Myers presented no evidence to contest or disprove his
paternity; he instead challenged the dissolution decree’s nullification of
Cortez’s paternity. But Myers never timely sought to join the dissolution
action. Nor, in the paternity action, did he seek to join any of those who
were parties to the dissolution action. He therefore could not obtain the


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                         STATE, ex. rel. v. MYERS
                           Decision of the Court

proof his defense theory required. See Cooper v. Commonwealth Title of Ariz.,
15 Ariz. App. 560, 562–63 (App. 1971) (“[F]or an independent action to
constitute a direct attack upon a former judgment all parties to the former
action must be before the court in the latter.”). Accordingly, the superior
court erred by denying the state’s motion for summary judgment, by
effectively entering judgment for Myers, and by modifying the dissolution
decree.

                               CONCLUSION

¶11          We reverse and remand for entry of summary judgment for
the state. We vacate the superior court’s orders re-establishing Cortez’s
paternity and modifying L.’s birth certificate.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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