                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


    KYMBERLY BROOKE RAMIREZ CLARK and DANIEL JOSEPH
                  RAMIREZ, Petitioners,

                                   v.

THE HONORABLE JOSEPH KREAMER, Judge of the SUPERIOR COURT
 OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                      Respondent Judge,

                CLARENCE CHAO, Real Party in Interest.

                          No. 1 CA-SA 17-0141
                            FILED 11-14-2017


          Appeal from the Superior Court in Maricopa County
                          No. FC2015051018
              The Honorable Joseph C. Kreamer, Judge

            JURISDICTION ACCEPTED; RELIEF DENIED


                               COUNSEL

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Erica L. Gadberry
Counsel for Petitioner Ramirez Clark
Udall Shumway PLC, Mesa
By Jonathan D. Brooks
Counsel for Petitioner Ramirez

Artemis Law Firm, PLLC, Scottsdale
By Michelle J. Roddy
Counsel for Real Party in Interest



                                 OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.


C R U Z, Judge:

¶1             Petitioners Kymberly Brooke Ramirez Clark (“Mother”) and
Daniel Joseph Ramirez (“Ramirez”) are respondents in a paternity action
filed by Real Party in Interest Clarence Chao (“Chao”). They seek special
action relief from the superior court’s order setting aside a portion of their
consent decree of dissolution (“Decree”), in which Petitioners untruthfully
asserted M.R. was Ramirez’ child.

¶2             Special action jurisdiction is appropriate because this dispute
involves a legal question of statewide importance relating to the best
interests of a child. See Ariz. R. P. Spec. Act. 1(a); Alvarado v. Thomson, 240
Ariz. 12, 14, ¶ 10 (App. 2016). We accordingly accept special action
jurisdiction but deny relief.

               FACTUAL AND PROCEDURAL HISTORY

¶3            In 2004, before Mother’s marriage to Ramirez, Mother was
involved in sexual relationships with both Ramirez and Chao and became
pregnant with M.R. Upon learning of the pregnancy, Chao asked Mother
whether he was the father. Mother said Ramirez was the child’s biological
father, but Chao still asked Mother to contact him after the child was born
to tell him whether she looked like Chao. Chao identifies as Asian
American with distinct “Asian characteristics” and Mother identifies as
Caucasian.

¶4          M.R. was born in February 2005. Mother and Ramirez were
unmarried at the time, and no father was identified on M.R.’s birth


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                    CLARK v. HON. KREAMER/CHAO
                         Opinion of the Court

certificate. After M.R.’s birth, Chao attempted to communicate with
Mother, and after some months he was able to ask her whether M.R. looked
like him. Saying M.R. was “100 percent” Ramirez’ and “doesn’t look
anything like you at all,” Mother insisted Chao was not M.R.’s biological
father.

¶5                Mother and Ramirez married in 2007, two years after M.R.’s
birth, but they divorced in 2012. Ramirez never adopted M.R., nor did
Petitioners ever attempt to modify M.R.’s birth certificate to identify
Ramirez as M.R.’s father. Therefore, under Arizona law, during the entirety
of Petitioners’ marriage M.R. had only one legal parent. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 8-117(A) (“On entry of the decree of adoption, the relationship of
parent and child and all the legal rights, privileges, duties, obligations and
other legal consequences of the natural relationship of child and parent
thereafter exist between the adopted child and the adoptive parent as
though the child were born to the adoptive parent in lawful wedlock.”)
(emphasis added), 25-814(A)(3) (“A man is presumed to be the father of the
child if . . . [a] birth certificate is signed by the mother and father of a child
born out of wedlock.”), partially invalidated on other grounds by McLaughlin v.
Jones, 243 Ariz. 29 (2017). In her petition for dissolution of marriage, Mother
falsely acknowledged Ramirez’ paternity of M.R. Likewise, Ramirez
acknowledged paternity of M.R. in his response. Three months after
Mother filed her petition for dissolution of marriage, the superior court
issued the Decree, which recognized Ramirez as M.R.’s father, provided
him with joint custody, and did not require him to pay child support.

¶6            Mother and Chao did not communicate after Mother told
Chao Ramirez was M.R.’s father. However, in 2014, two years after Mother
and Ramirez divorced, Chao looked at Mother’s social media account and
found pictures of M.R. Chao noted that M.R. resembled him and had
“Asian characteristics” which he described as a flatter face, lower nose
bridge, thick straight jet-black hair, and dark, almond-shaped eyes with
epicanthic folds in the corners. Within a week or two of seeing M.R.’s
pictures on Mother’s social media, Chao emailed Mother to ask again
whether M.R. was his daughter. Mother responded, “Yes, I do think you
are the biological father. When it first happened I didn’t think so, but as
she has gotten older she looks a lot like you.” Chao stated he would like to
be part of M.R.’s life and offered to pay for child support and counseling to
properly introduce him to M.R. Initially, Mother agreed and said she
would like M.R. to know her biological father.

¶7           Over the next three months, Mother sent Chao pictures of
M.R. and stated she was willing to allow Chao to meet M.R., but she said it


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                   CLARK v. HON. KREAMER/CHAO
                        Opinion of the Court

was too soon at that time. She also admitted, “I do not think a DNA test is
necessary since she looks just like you.” Although Mother initially agreed
to allow M.R. to complete DNA testing, she did not have M.R.’s DNA
tested. Then, three months after first admitting Chao was M.R.’s biological
father, Mother told Chao it was a bad time to reunite him with M.R. Chao
then petitioned to establish paternity, legal decision-making, and child
support.

¶8             After an evidentiary hearing, the superior court found by
clear and convincing evidence that Mother had committed a fraud upon the
court in her petition for dissolution alleging Ramirez’ paternity. It
separately found that if not a fraud upon the court, the voluntary
acknowledgment of paternity set forth in the Decree was a material mistake
of fact pursuant to A.R.S. § 25-812. The court expressly found Ramirez did
not engage in misconduct or fraud. It granted Chao’s motion to set aside a
portion of the judgment pursuant to A.R.S. § 25-812 and Arizona Rule of
Family Law Procedure (“Rule”) 85(C)(1), resulting in Ramirez’ loss of those
parental rights he had enjoyed for the two years following the divorce and
which he first obtained when Mother untruthfully named him as biological
father in the Decree. Petitioners Mother and Ramirez filed a joint petition
for special action.

                              DISCUSSION

¶9            Petitioners argue the superior court erred in vacating the
acknowledgment of paternity in the Decree because the court: (1) used the
incorrect legal standard and improperly severed Ramirez’ rights after
finding him an innocent party; (2) set aside a judgment of paternity in a
consent decree based on a material mistake of fact pursuant to A.R.S. § 25-
812(E); and (3) vacated Ramirez’ judgment of paternity pursuant to Rule
85(C)(1)(f) even though Chao failed to timely request the same or establish
an extraordinary circumstance of hardship or injustice.1

¶10          We review a superior court’s ruling on a Rule 85(C) motion
for an abuse of discretion. Alvarado, 240 Ariz. at 14, ¶ 11. We review
conclusions of law and the interpretations of statutes and rules de novo,
and we will affirm the court’s findings of fact unless they are clearly
erroneous. Id.; Rule 82(A). We view the facts in the light most favorable to


1      The superior court made its finding regarding A.R.S. § 25-812(E),
material mistake of fact, as an alternate ruling. Because we affirm the
court’s fraud upon the court finding, we do not address Petitioners’
remaining arguments regarding A.R.S. § 25-812(E) or Rule 85(C)(1)(f).


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                    CLARK v. HON. KREAMER/CHAO
                         Opinion of the Court

sustaining the superior court’s order, giving “due regard . . . to the
opportunity of the trial court to judge the credibility of witnesses.” Rule
82(A); Alvarado, 240 Ariz. at 13 n.1.

¶11            Both parties cite Alvarado for the proposition that fraud upon
the court is fraud which includes “the most egregious conduct involving a
corruption of the judicial process itself.” See 240 Ariz. at 16, ¶ 17 (citing Lake
v. Bonham, 148 Ariz. 599, 601 (App. 1986)). The petitioners in Alvarado, a
husband and wife, paid the biological mother of the child in question to list
the husband as the child’s father in an acknowledgment of paternity,
bypassing Arizona’s adoption procedures. Id. at 13, ¶ 3. This Court
affirmed the superior court’s determination that intentionally creating and
using the fraudulent acknowledgment of paternity constituted a fraud
upon the court. Id. at 17, ¶ 32.

¶12            Petitioners argue that because Alvarado characterizes fraud
upon the court as fraud which includes “the most egregious conduct
involving a corruption of the judicial process itself,” it is different and more
difficult to prove than common law fraud. See Alvarado, 240 Ariz. at 16,
¶ 17 (citing Lake, 148 Ariz. at 601). They assert the court incorrectly applied
“an ignorance of the truth standard” to Mother’s conduct, allowing it to
find Mother guilty of fraud despite Chao’s failure to prove her deliberate
intent to defraud the court. Petitioners additionally argue that even if the
court applied the proper standard, the standard the court used should not
apply to Ramirez because it was inequitable to vacate the Decree
recognizing Ramirez’ paternal rights when he was innocent of wrongdoing.
We disagree.

¶13            The superior court may set aside a judgment at any time when
the moving party proves the judgment was the product of fraud upon the
court. Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 299,
¶ 42 (App. 2011); see also McNeil v. Hoskyns, 236 Ariz. 173, 177, ¶ 15 (App.
2014) (“[A] party may be entitled to equitable relief from a provision of a
dissolution decree that is procured by extrinsic fraud.”) (internal quotations
and citation omitted). To obtain this relief, the moving party must prove
the fraud by clear and convincing evidence. Lake, 148 Ariz. at 601. Fraud
upon the court occurs “[w]hen a party obtains a judgment by concealing
material facts and suppressing the truth with the intent to mislead the
court.” Cypress, 227 Ariz. at 299, ¶ 42. Such fraud damages “the integrity
of the judicial process” and is a “wrong against the institutions set up to
protect and safeguard the public.” Id. at 300, ¶ 43 (quoting Hazel-Atlas Glass
Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944), abrogated on other grounds
by Standard Oil Co. v. United States, 429 U.S. 17 (1976)). A fraudulent


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                   CLARK v. HON. KREAMER/CHAO
                        Opinion of the Court

acknowledgment of paternity pursuant to A.R.S. § 25-812(D) may constitute
a fraud upon the court. Alvarado, 240 Ariz. at 16, ¶ 19.

¶14            We disagree that the superior court applied the wrong
standard in determining fraud upon the court. Contrary to Petitioners’
assertion that the court incorrectly applied “an ignorance of the truth
standard” to Mother’s conduct, the court correctly applied the clear and
convincing standard to find Mother knew before submitting the Decree that
Ramirez was not M.R.’s father. Mother therefore “obtain[ed] a judgment
by concealing material facts and suppressing the truth with the intent to
mislead the court.” Cypress, 227 Ariz. at 299, ¶ 42. As in Alvarado, Mother’s
fraudulent acknowledgment of Ramirez’ paternity allowed Petitioners to
avoid court proceedings that would have required a best-interests
assessment. Alvarado, 240 Ariz. at 16, ¶ 21; see also A.R.S. §§ 8-116(A)
(requiring a best-interests finding for an adoption), -872(E) (requiring a
best-interests finding for a permanent guardianship). Although Petitioners
attempt to distinguish Alvarado, arguing that unlike the petitioners in that
case, Mother sincerely believed her position, the superior court did not find
Mother’s testimony to this effect credible. “We do not reweigh evidence or
determine the credibility of witnesses.” Brown v. U.S. Fid. & Guar. Co., 194
Ariz. 85, 92, ¶ 36 (App. 1998).

¶15            We also decline Petitioners’ request to apply a different
standard than in Alvarado. Petitioners argue terminating Ramirez’ rights
when he was innocent of wrongdoing is inequitable, but they do not
identify which parental legal rights Ramirez enjoyed that existed absent
Mother’s fraud. In Arizona, paternity may be established in several ways,
see A.R.S. §§ 25-801 to -818, but Petitioners pursued none of these before
their divorce and the ensuing Decree, compare Alvarado, 240 Ariz. at 15, ¶ 12
(recognizing an acknowledgment of paternity pursuant to A.R.S. § 25-
812(A)(1) “is a determination of paternity and has the same force and effect
as a superior court judgment” and “is presumed valid and binding until
proven otherwise”). Before Mother filed her petition for dissolution and
accompanying affidavit, in which the superior court later concluded she
falsely asserted M.R. was “born to or adopted by” Ramirez and declared
Ramirez the father, Ramirez was, at best, standing in loco parentis to M.R.2
Ramirez is now in that position once more, and, as Chao correctly notes,

2       “A person standing in loco parentis to a child is one who has put
himself in the situation of a lawful parent by assuming the obligations
incident to the parental relation.” Garay Uppen v. Superior Court, 116 Ariz.
81, 83 (App. 1977).



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                   CLARK v. HON. KREAMER/CHAO
                        Opinion of the Court

Ramirez may still seek legal decision-making, placement, and visitation
pursuant to A.R.S. § 25-409.3

¶16          Petitioners request attorneys’ fees and costs pursuant to
ARCAP 21 and A.R.S. § 25-324 due to the unreasonable position Chao
adopted in the matter. Chao requests attorneys’ fees and costs pursuant to
ARCAP 21 and A.R.S. § 25-415(A)(1) because Mother presented a false
claim under A.R.S. § 25-403 with knowledge the claim was false. Because
the superior court found Mother knew before submitting the Decree that
Ramirez was not M.R.’s father, we conclude she presented a false claim
under A.R.S. § 25-403 with knowledge the claim was false. We accordingly
award attorneys’ fees and costs to Chao against Mother upon Chao’s timely
compliance with ARCAP 21.

                              CONCLUSION

¶17          Accordingly, we accept review but deny relief.




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




3      A “person other than a legal parent may petition the superior court
for legal decision-making authority or placement of the child” if, among
other requirements, the person filing the petition stands in loco parentis to
the child. A.R.S. § 25-409(A). A person other than a legal parent may also
petition the court for visitation with the child. A.R.S. § 25-409(C).



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