¶ 1 The core issue in this special action is whether the superior court properly found that intentionally creating and using a fraudulent acknowledgment of paternity, listing the wrong biological father to avoid the adoption process, constitutes a fraud upon the court. Because the fraudulent acknowledgment circumvented a best-interests assessmеnt, the court properly found it was a fraud upon the court. The court also did not err in denying a motion to set aside its finding based on alleged misconduct that purportedly kept the birth mother from testifying at an evidentiary hearing. Accordingly, although accepting special action jurisdiction, this court denies relief.
FACTS
¶ 2 In 2011, Vanessa Trujillo told Nicholas Murrietta she was рregnant with his child and she intended to give the child up for adoption. When Murrietta asked about paternity testing, Trujillo got angry and cut off contact with him.
¶ 3 Sometime after the child’s birth in November 2011, Trujillo told Murrietta the child had been adopted but refused to disclose the child’s location or adoptive family. In fact, however, Trujillo never placed the child for adoption. Instead, Petitioner Ernest Alvarado, and his wife Yvette Alvarado, paid Trujillo to list Ernest as the child’s father on an acknowledgement of paternity. Signed by Trujillo and Ernest the day after the birth, the acknowledgement declared “under penalty of perjury” that Ernest was the child’s father. They then filed the acknowledgement with the Arizona Department of Economic Security (DES) and used it to obtain a birth certificate listing Ernest as the child’s father. Ernest told Yvette that he was not the biological father but that he paid Trujillo to give them the child and placed his name on the acknowledgment so that he would be on the child’s birth certificate. The Alvara-dos then raised the child as their own without apparent incident for three years.
¶ 4 In Decеmber 2014, Ernest filed for divorce, stating the couple had no minor children. Yvette responded that the couple had raised a minor child “as their own” and Ernest was “the legal father,” because he was listed on the birth certificate, but was not the biological father. In eaiiy 2015, at Yvette’s request, Trujillo asked Murrietta to take a paternity test. Only then did Murrietta learn that the child had never been adopted.
¶ 6 At a November 2015 evidentiary hearing, the superior court heard testimony from Ernest, Yvette, Murrietta and others, although not from Trujillo. In a detailed minute entry filed later in November 2015, the court granted Murrietta’s motion. The court found Trujillo and Ernest “sign[ed] an ‘acknowledgment of paternity’ when they both knew full well that [Ernest] was not the father” and Ernest “sought to avoid the adoption process, which would have required due process and notification to [Murrietta,] the biological father.” The court found Mur-rietta was “fully capable” of caring for the child and “[t]he best interest of the child will be best met by setting aside the fraudulent Acknowledgement of Paternity and allowing for paternity to be established by genetic testing.”
¶ 7 Quoting A.R.S. § 25-812(D), the court noted that an acknowledgement of paternity “has the same force and effect as a superior court judgment.” The court found “[o]btain-ing a judgment of paternity by falsifying information under oath to the Court establishes fraud upon the Court,” which is not subject to the six-month time limit set forth in Rule 85(C)(2).
¶ 8 Alternatively, the court tolled the six-month limit governing a challenge to an acknowledgment of paternity “on the basis of fraud, duress or material mistake of fact.” A.R.S. § 25-812(E); see also Ariz. R. Fam. Law P. 85(C)(3) (requiring such a challenge to be made “not more than six (6) months after the judgment or order was entered”). The court found this six-month period “presupposes” the party “had service and due process and [is] aware of thе case and the orders entered in that case.” The court found tolling “is appropriate, as the six-month time period can only begin when [Murrietta had] service and notice of the case;” to conclude otherwise “would be a violation of his due process rights.” After granting Murrietta’s motion, the court ordered the parties to take action to list Mur-rietta (not Ernest) as the father on the child’s birth certificate.
¶ 9 In January 2016, Ernest moved to set aside the November 2015 ruling, asserting recently discovered misconduct by Yvette prevented Trujillo from testifying at the evi-dentiary hearing. After a hearing, the superior court denied the motion to set aside. The court also stayed the November 2015 ruling to allow the filing of this special action, which soon followed.
DISCUSSION
I. Special Action Jurisdiction.
¶ 10 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); Dep’t of Child Safety v. Beene,
II. The Merits.
A. Standard Of Review.
¶ 11 This court reviews a ruling on a motion filed under Rule 85(C) for an abuse of discretion. Duckstein v. Wolf,
¶ 12 Under Arizona law, paternity can be established in various ways. See A.R.S. §§ 25-801 to -818. As applicable here, “the parent of a child born out of wedlock may establish the paternity of a child” using a signed, witnessed acknowledgement of paternity. A.R.S. § 25-812(A)(1).
¶ 13 First, a person who signs an acknowl-edgement of paternity may rescind the acknowledgment by the earlier of: (1) 60 days after the last signature on the acknowledgement; or (2) “[t]he date of a proceeding relating to the child.” A.R.S. § 25-812(H). Because neither Ernest nor Trujillo sought rescission, this provision does not apply.
¶ 14 Second, “the mother, father or child, or a party to the proceeding on a [R]ule 85(C) motion, may challenge a voluntary acknowledgment of paternity .,. at any time after the sixty day period only on the basis of fraud, duress or material mistake of fact.” A.R.S. § 25-812(E). Absent fraud upon the court, the challenge “shall be filed ... not more than six (6) months аfter the judgment or order was entered.” Ariz. R. Fam. Law P. 85(C)(2); accord Andrew R.,
¶ 15 Third, neither the statute nor the rule set a time limit for a fraud upon the court challеnge. Accord Ariz. R. Fam. Law P. 85(C)(3) (noting rule “does not limit the power of a court to entertain an independent action ... to set aside a judgment for fraud upon the court”). Ernest argues Andrew R. directs that Murrietta’s fraud upon the court challenge is time-barred. Andrew R., however, did not involve fraud upon the court.
¶ 16 Section 25-812(E) refers to a Ariz. R. Fam. Law P. 85(c), which “does not limit the power of a court to entertain an independent action to ... set aside a judgment for frаud upon the court.” Ariz. R. Fam. Law P. 85(C)(3). As a result, the six-month time limit in Rule 85(C)(2) does not apply to fraud upon the court. See Cypress on Sunland Homeowners Ass’n v. Orlandini,
C. The Superior Court Properly Found The Acknowledgment Of Paternity Was A Fraud Upon The Court.
¶ 17 As aptly summarized in a recent family court appeal:
Fraud on the court is a variety of extrinsic fraud. The doctrine may allow relief when, by fraud, a party has prevented a real contest before the court of the subject matter of the suit, or, put differently, has committed some intentional act or conduct ... [that] has prevented the unsuccessful party from having a fair submission of the controversy. The court has the power to set aside a judgment [w]hen a party obtains a judgment by concealing material facts and suppressing the truth with the intent to mislead the court.
McNeil v. Hoskyns,
¶ 18 Ernest argues that creating and using the fraudulent acknowledgement of paternity did not constitute a fraud upon the court because it did “not prevеnt a real contest on the subject matter of the acknowledgment, nor d[id] it prevent a third-party alleged father from challenging the acknowl-edgement under AR.S. § 25-812(E).” Ernest argues that the acknowledgement “had zero impact on [Murrietta’s] ability to contest the acknowledgement and have a fair submission of the controversy of paternity of the minor child, whethеr it was 2011 after the child was born, or 2015,” adding “[i]t is impossible for the ... acknowledgement of paternity to give both rise to a claim and prevent a real contest on the claim.”
¶ 19 In essence, Ernest argues that, because the fraudulent acknowledgement can be challenged, creating and using the document cannot be a fraud upon the court. Fraud upon the court, however, “ ‘harms the integrity of the judicial process and is a wrong against the institutions set up to protect and safeguard the public.’ ” Rogone v. Correia,
¶ 20 Ernest suggests, with some force, that Murrietta could have been more diligent in his challenge. That argument, however, did not persuade the superior court, and Arizona law on fraud upon the court does not compel a different result, See McNeil,
¶ 21 Although Ernest did not use the fraudulent acknowledgment of paternity in a court proceeding, he did use it to obtain a birth certificate and to avoid court proceedings that would have required a best-interests assessment. Unlike Andrew R., where the biological mother had the right to parent her child independent of the acknowledgment of paternity, the Alvarados could not be the child’s parents without an adoption, which would have required a judicial best-interests determination. See A.R.S. § 8-116(A) (requiring,
¶ 22 Relying primarily on Andrew R., Ernest argues the superior court’s decision is contrary to public policy. But as discussed above, Andrew R. did not address fraud upon the court. And in this ease, the court found Ernest and Trujillo signed the acknowledgment “when they both knew full well that [Ernest] was not the father” and that Ernest did so “to avoid the adoption process.” Taking action that improperly avoids the adoption process, including the best-interests assessment, through what was in substance an under-the-table adoption, cannot be reconciled with furthering legitimate public policy.
¶ 23 Finally, Ernest argues that cоurts in other states have held that “signing an ac-knowledgement of paternity ... is not fraud upon the court.” The two out-of-state cases Ernest cites, however, are distinguishable and have not been applied in Arizona.
D. Ernest’s Motion To Set Aside.
¶ 24 Ernest argues the superior court abused its discretion by denying his motion to set aside the November 2015 ruling based on Yvette’s alleged misconduct. See Ark. R. Fam. Law P. 85(C)(1)(c) (allowing relief from an order for “misconduct of an adverse party”). Ernest’s motion to set aside asserted that Yvette threatened, and paid money to, Trujillo so she would “not participate in the ease and not testify” at the November 2015 hearing. The motion attached a Januаry 2016 affidavit from Trujillo, which stated she did not attend the hearing because Yvette “paid me money and threatened me to not participate in the case.” In her affidavit, Trujillo stated she was “no longer afraid of Yvette,” and was willing to testify to refute some testimony received at the November 2015 hearing. In her affidavit, Trujillo also stated she had intercourse with Ernest in 2011 аbout the time that she became pregnant and Ernest did not pay her to sign the acknowledgment.
¶ 25 Trujillo was not subpoenaed to attend the November 2015 hearing. During that hearing, there was no contention that Trujillo would testify, that she was avoiding process or that anyone had attempted to depose her. Nor was there any objection to going forward with the hearing in her absence. Accordingly, Ernest waived any issue regarding Trujillo participating as a witness at the November 2015 hearing. See Trantor v. Fredrikson,
¶ 26 Apart from waiver, Ernest had contact with Trujillo during the case, filing an affidavit from her in 2015 that included some of the same information in Trujillo’s 2016 affidavit. At the November 2015 hearing, Yvette admitted to having contact with Trujillo and paying her money, albeit in a different manner than Trujillo’s 2016 affidavit suggests. Although Trujillo’s 2016 affidavit contradicts some testimony, much of it is either consistent with or duplicative of evidence received at the November 2015 hearing. Finally, in opposing the motion to set aside, Yvette provided an affidavit addressing and disputing most of the statements contained in Trujillo’s 2016 affidavit. On this record, Ernest has not shown the superior court abused its discretion by denying his motion to set aside the November 2015 ruling.
E. Attorneys’ Fees.
¶27 Ernest and Murrietta request attorneys’ fees incurred in this special action pursuant to A.R.S. § 25-324. In exercising its discretion, this court denies both requests without prejudice to their reassertion in the superior court.
CONCLUSION
¶ 28 The superior court did not err by concluding that intentionally creating and using a fraudulent acknowledgment of paternity, listing the wrong biological father to avoid the adoption process, constitutes a fraud upon the court. Similarly, the superior court did not err in denying Ernest’s motion to set aside the order based on alleged misconduct. Accordingly, although accepting special action jurisdiction, this court denies relief.
Notes
. This court views the facts in the light most favorable to sustaining the superior court's order, giving "due regard ... to the opportunity of the trial court to judge the credibility of witnesses.” Ariz. R. Fam. Law P. 82(A) (2016); see also Gutierrez v. Gutierrez,
. Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless othеrwise indicated.
. DES promulgated form CS-127 for such purposes, which Trujillo (who was not married at the time of the child’s birth) and Ernest used.
. The superior court found that it was in the best interests of the child to set aside the acknowledgment and allow paternity to be established by genetic testing. Accordingly, this court does not address whe&er a fraud-upon-the-court challenge could prevail where the superior court found that allowing such a challenge to proceed was not in the best interests of the child.
. See In re William. K.,