                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                         BILL W. CASTILLO,
                        Petitioner/Appellant,

                                 v.

                         THANIA N. LAZO,
                        Respondent/Appellee.

                    No. 2 CA-CV 2016-0122-FC
                     Filed December 9, 2016


          Appeal from the Superior Court in Pinal County
                     No. S1100DO201501954
               The Honorable Delia R. Neal, Judge

                 REVERSED AND REMANDED


                            COUNSEL

Law Offices of Matthew S. Schultz, P.C., Tempe
By Matthew S. Schultz
Counsel for Petitioner/Appellant

Ritter Law Group, L.L.C., Florence
By Matthew A. Ritter
Counsel for Respondent/Appellee


                            OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.
                          CASTILLO v. LAZO
                          Opinion of the Court

E C K E R S T R O M, Chief Judge:

¶1           Bill Castillo (Father) appeals from the judgment
granting Thania Lazo’s (Mother’s) motion to dismiss his paternity
action for failure to state a claim upon which relief can be granted.
For the following reasons, we reverse the ruling of the trial court
and remand for further proceedings consistent with this opinion.

                 Factual and Procedural Background

¶2            Although the parties styled the issue in the trial court as
dismissing the action for failure to state a claim for which relief
could be granted, Father and Mother both submitted materials
outside of the pleadings and the trial court appears to have
considered these materials in its ruling. We therefore review the
issue as one of summary judgment rather than judgment on the
pleadings. See Ariz. R. Fam. Law P. 32(B) (“If . . . matters outside the
pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment . . . .”); cf. Canyon del
Rio Inv’rs, L.L.C. v. City of Flagstaff, 227 Ariz. 336, ¶ 15, 258 P.3d 154,
158 (App. 2011) (documents attached to motion to dismiss converted
motion to summary judgment).

¶3           “When reviewing the trial court’s grant of summary
judgment, we view the facts and the reasonable inferences arising
from them in the light most favorable to . . . the nonmoving party.”
La Canada Hills Ltd. P’ship v. Kite, 217 Ariz. 126, ¶ 2, 171 P.3d 195, 196
(App. 2007). Between September 2012 and April 2013, Father and
Mother had a sexual relationship, and in July 2013, Mother gave
birth to a son, B.L. During this time, Mother was married to another
man, Delio Lazo (Husband). Husband is listed as the father on
B.L.’s birth certificate. Husband, however, was working overseas
during the time of conception and could not be the biological father
of B.L. Father and Father’s family established a relationship with
B.L., including frequent visitations, and Father provided Mother
with money for B.L.’s support.

¶4          In December 2015, Father filed a paternity action
seeking parenting time and joint legal decision-making. Mother
filed a motion to dismiss, claiming inter alia that A.R.S. § 25-812(E)


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                         CASTILLO v. LAZO
                         Opinion of the Court

barred the action. The trial court agreed and granted Mother’s
motion, which, as noted above, we treat as a grant of summary
judgment. This appeal followed.

                   Timeliness of Paternity Action

¶5           Father asserts the trial court erred when it concluded
that Father’s paternity action was untimely pursuant to § 25-812(E).
We review issues of statutory interpretation de novo. Beatie v. Beatie,
235 Ariz. 427, ¶ 14, 333 P.3d 754, 757 (App. 2014).

¶6           At the outset, we note that, although Father has not
raised this argument either here or in the trial court, § 25-812 applies
only to “a child born out of wedlock.”1 Mother has never alleged
that B.L. was born out of wedlock, and in fact has affirmatively
argued that he was not. For this reason, in addition to the argument
raised by Father and discussed below, § 25-812(E) does not apply.

¶7           In general, a paternity action “may be instituted during
the pregnancy of the mother or after the birth of the child.” A.R.S.
§ 25-804. The only time limit for bringing the action applies to an
action seeking child support, which must be brought before the
child’s eighteenth birthday. Id.

¶8            But in some circumstances, the time period to bring a
paternity action is more limited. Under § 25-812, “[t]his state or the
parent of a child born out of wedlock may establish the paternity of
a child by filing” a “voluntary acknowledgment of paternity.” Such
an acknowledgment is a formal statement that acknowledges
paternity of a child. It must include the social security numbers of
the parents, it must be signed by both parents, and it must be either
witnessed or notarized. § 25-812(A)(1). The statute restricts who
may serve as a witness, and if the acknowledgment is witnessed,
certain information must be recorded about the person serving as
witness. Id. When the clerk of the superior court enters the
acknowledgment and issues an order of paternity, it “has the same

      1We address this point nonetheless to ensure that we do not
suggest § 25-812 may apply to a child who is not born out of
wedlock.


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                         CASTILLO v. LAZO
                         Opinion of the Court

force and effect as a judgment of the superior court.” § 25-812(C).
The statute also establishes that, after a sixty-day period of time, a
person may only challenge the acknowledgment of paternity
pursuant to Rule 85(c), Ariz. R. Fam. Law P., “on the basis of fraud,
duress or material mistake of fact.” § 25-812(E).2

¶9           The record here establishes that the birth certificate
names Husband as B.L.’s father. Mother has not alleged, and we see
no evidence in the record, that Mother and Husband ever filed a
voluntary acknowledgment of paternity as it is defined in
§ 25-812(A). However, Mother’s argument below and on appeal is
based on the premise that the birth certificate bearing Husband’s
name is the equivalent of a voluntary acknowledgement. Father
contends, as he did below, that a birth certificate is not the legal
equivalent of a voluntary acknowledgment of paternity, and that §
25-812(E) is therefore inapplicable. Mother has not meaningfully
responded to this argument,3 which we could consider a concession
of the issue. See Chalpin v. Snyder, 220 Ariz. 413, n.7, 207 P.3d 666,
676 n.7 (App. 2008) (“Failure to respond in an answering brief to a
debatable issue constitutes confession of error.”).

¶10          Even if we decline to accept Mother’s concession, we
would still conclude that a birth certificate is not equivalent to a
voluntary acknowledgment of paternity pursuant to § 25-812.
Neither the “proof of birth” form provided by the hospital nor the
birth certificate itself contains Mother’s and Husband’s social


      2The former version of the statute, which Mother cites in her
answering brief and the trial court appears to have relied on,
referenced Rule 60(c), Ariz. R. Civ. P., rather than Rule 85(c), Ariz. R.
Fam. Law P. 2007 Ariz. Sess. Laws, ch. 14, § 6.
      3  Mother merely states that “[c]hallenging paternity
established through a properly executed Acknowledgment of
Paternity or Birth Certificate . . . must comply with . . . statutory
requirements.”    She does not provide any authority for the
proposition that birth certificates, which are not mentioned in
§ 25-812, should be considered the equivalent of an
acknowledgment of paternity made pursuant to that statute.


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                         CASTILLO v. LAZO
                         Opinion of the Court

security numbers or signatures.           See § 25-812(A)(1).     These
documents are neither notarized nor witnessed as prescribed by the
statute. Id.; see A.R.S. § 36-334(A), (C) (establishing requirements for
determining maternity and paternity on birth certificate).

¶11          Mother relies on Stephenson v. Nastro, 192 Ariz. 475, 967
P.2d 616 (App. 1998), to contend that Father’s action is untimely.
But there, the mother and the putative father had executed a signed
and notarized acknowledgment of paternity, although that
document was not filed in the superior court. Id. ¶¶ 4, 21. 4
Furthermore, under the version of the statute applied by the court in
Stephenson, a birth certificate signed by the mother and father was
statutorily defined as a voluntary acknowledgment of paternity and
therefore could be filed in the superior court and be given the effect
of a judgment. Id. ¶ 20 & n.8; see 1995 Ariz. Sess. Laws, ch. 270, § 2.5

¶12           Our legislature has since expressly rejected a birth
certificate as a means of establishing paternity under § 25-812. In
2003, it deleted the provision allowing filing a birth certificate as a
voluntary acknowledgment of paternity. 2003 Ariz. Sess. Laws,
ch. 230, § 3. And the pertinent legislative history demonstrates that
the legislature intended to “[e]liminate[] a birth certificate signed by
the parents of a child born out of wedlock as a means of filing when
establishing paternity.” H. Summary for H.B. 2139, 46th Leg., 1st
Reg. Sess. (Ariz. Jan. 27, 2003).

¶13         For these reasons, we conclude that a birth certificate is
not a voluntary acknowledgment of paternity pursuant to § 25-812


      4InAndrew R. v. Arizona Department of Economic Security, which
Mother also cites, the parents had properly executed an
acknowledgment of paternity. 223 Ariz. 453, ¶ 2, 224 P.3d 950, 951
(App. 2010).
      5Although    the court in Stephenson cited the 1994 version of the
statute, it actually quoted the language of the statute applicable in
1995, which was the statute in effect at the time the mother and
father in that case made the acknowledgment of paternity. 192 Ariz.
475, ¶¶ 4, 20, 967 P.2d at 618, 623.


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                         CASTILLO v. LAZO
                         Opinion of the Court

and that § 25-812(E) therefore does not bar Father’s paternity action.
Because § 25-812(E) does not apply, the relevant statute is § 25-804,
and Father’s paternity action is timely.

          Statutory Entitlement to Bring Paternity Action

¶14           Mother also argued below that Father was not entitled
to bring a paternity action pursuant to A.R.S. § 25-803(A) because
B.L. was not born out of wedlock. Although the trial court did not
reach this claim, Mother has re-urged this contention on appeal as
an alternative ground for upholding the trial court’s ruling. Because
“[w]e may uphold a judgment on grounds different from those cited
by the trial court,” we address this issue. Ness v. W. Sec. Life Ins. Co.,
174 Ariz. 497, 502, 851 P.2d 122, 127 (App. 1992).

¶15            Section 25-803(A)(2) provides that a proceeding to
establish paternity may be brought by the father. In Ban v. Quigley,
168 Ariz. 196, 198-99, 812 P.2d 1014, 1016-17 (App. 1990), and R.A.J.
v. L.B.V., 169 Ariz. 92, 95, 817 P.2d 37, 40 (App. 1991), this court
concluded that the term “father” in § 25-803(A)(2)6 includes a man
who believes he is the biological father of a child. We also
determined that “the marital status of the mother is irrelevant when
. . . the father brings the action.” R.A.J., 169 Ariz. at 95, 817 P.2d at
40; see Ban, 168 Ariz. at 198-99, 812 P.2d at 1016-17.

¶16          We acknowledge that A.R.S. § 25-806(A) states in part
that “[p]aternity proceedings are commenced by the filing of a
verified petition that alleges that a woman is delivered of a child or
children born out of lawful wedlock.” This language would suggest
that paternity proceedings may not be brought for a child who is
born in wedlock. And, both R.A.J. and Ban relied, in part, on a prior
version of this statute with materially different language in finding
that a paternity proceeding could be brought when the child was not
born out of wedlock. See R.A.J., 169 Ariz. at 94-95, 817 P.2d at 38-40;
Ban, 168 Ariz. at 198-99, 812 P.2d at 1016-17.



      6The legislature renumbered this statute, formerly A.R.S.
§ 12-843, in 1996. 1996 Ariz. Sess. Laws, ch. 192, § 14.


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                        CASTILLO v. LAZO
                        Opinion of the Court

¶17          However, in interpreting statutes, “[w]e must consider
all pertinent statutory provisions . . . and related statutes must be
interpreted consistently and harmoniously with one another.” In re
Stephanie N., 210 Ariz. 317, ¶ 17, 110 P.3d 1280, 1283 (App. 2005)
(citation omitted). Section 25-803 allows maternity or paternity
proceedings to be commenced by a mother or a father, and only
limits the commencement of such a proceeding to a child born out of
wedlock when the proceeding is brought by a “guardian,
conservator, or best friend.”

¶18           Moreover, A.R.S. § 25-814(A)(1) establishes a
presumption that a man who is married to the mother of a child
when she gives birth is the father of that child, but § 25-814(C)
allows that presumption to be rebutted. If a paternity proceeding
could only be initiated when a child was born out of wedlock, it
would be impossible in such a situation to rebut the marital
presumption. And, as the court noted in Ban, if we construed
§ 25-806 to only allow paternity proceedings when a child is born
out of wedlock, “a putative father would be unable to bring an
action to establish paternity of a child born during the mother’s
marriage to her husband, even if the mother and the husband later
separated or divorced or in the event the mother died.” 168 Ariz. at
198-99, 812 P.2d at 1016-17. Accordingly, we conclude that Father is
entitled to bring this paternity action pursuant to § 25-803(A)(2).7

                            Disposition

¶19         For the foregoing reasons, we reverse the judgment of
the trial court and remand this case for further proceedings
consistent with this opinion.




      7 Father  has also raised the issue of whether the trial court
must determine that a paternity test is in B.L.’s best interest before
ordering the test to be done. Because the trial court did not decide
this issue, we likewise decline to resolve it.


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