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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARC S., Appellant,

v.

ROBYN P., WILLIAM P., Appellees.

No. 1 CA-JV 15-0357

Appeal from the Superior Court in Maricopa County

No. JA509783

The Honorable Julia L. Vigil, Judge Pro Tempore

JURISDICTION ACCEPTED, RELIEF DENIED

COUNSEL

Robert D. Rosanelli, Attorney at Law, Phoenix

By Robert D. Rosanelli

Counsel for Appellant

John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellee Robyn P.

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Kent E. Cattani joined.
MARC S. v. ROBYN P. et al.

Decision of the Court

2

K E S S L E R, Judge:

¶1 Appellant Marc S. (“Marc”), the biological father of Autumn,

appeals the juvenile court’s denial of his motion to restore parental rights. 

Marc argues that the superior court erred in denying: (1) his motion as 

barred by Arizona Revised Statutes (“A.R.S.”) section 8-123 (2016),

1 a 

statute controlling procedural irregularities in adoption cases; (2) his 

motion as barred by Marc having actual notice as of March 2014 of the 

severance of his parental rights to Autumn in a related case; and (3) him 

an evidentiary hearing to prove alleged fraud on the court as to service of 

process on him in the severance proceeding. For the reasons stated below, 

we treat this appeal as a special action, accept jurisdiction, but deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 In September 2006, Robyn P. (“Robyn”) gave birth to 

Autumn. In May 2007, the superior court determined that Marc was 

Autumn’s biological father. In September 2007, Robyn married William P.

(“William”). In January 2008, in a related paternity and custody matter, 

the family court awarded custody of Autumn to Robyn, but gave Marc 

supervised access two times per week, with the intent to gradually 

increase that parenting time if the supervised parenting time was 

successful. 

¶3 In November 2008, Robyn and William filed an action to 

sever Marc’s parental rights due to abandonment, indicating that Robyn 

and William intended to have William adopt Autumn. In a social study

supporting the petition, an adoption specialist reported Marc’s residence 

was in Scottsdale, Arizona. That study also stated the specialist had 

interviewed Marc and that he knew of the proposed severance and 

adoption, had at one time consented to the adoption, but that was no 

longer on the table, and he intended to fight the severance action. Mother 

and William attempted to have the severance petition served on Marc at 

the Scottsdale address, but the process server reported that, after eight 

attempts, service was unsuccessful. The process server stated he had

talked to a woman at the house who said Marc did not live there, but she 

could forward him papers. At the direction of Robyn and William’s 

 

1 We cite to the current version of applicable statutes when no 

revision material to this case has occurred.
MARC S. v. ROBYN P. et al.

Decision of the Court

3

counsel, the papers were returned to the attorney. The attorney sent the 

petition and notice of a hearing by certified mail to Marc at the Scottsdale 

address, but the documents were returned with the envelope marked 

undeliverable as addressed/unable to forward. In March 2009, Mother

filed an affidavit to confirm service by publication, in which she swore, 

through her attorney, that Marc was avoiding service at the Scottsdale 

address. The motion also indicated that service by publication was 

accomplished through the Record Reporter in Arizona. 

¶4 At a March 2009 publication hearing in the severance 

proceeding, the superior court concluded that service by publication was 

warranted because the adoption case manager had made Marc aware of 

an earlier hearing in the severance matter, that Marc had told the manager 

he resided in Scottsdale, and that there was a basis to believe Marc was 

avoiding service of process. Based on his failure to appear, the court 

concluded Marc had waived his legal rights, admitted the allegations of 

the petition and, based on evidence presented, the court severed his 

parental rights due to abandonment. That order was sent to Marc at the 

Scottsdale address. 

¶5 Several weeks after the severance order, in April 2009, 

William, through the Maricopa County Attorney, filed this action, 

petitioning the juvenile court to allow William to adopt Autumn. That 

petition explained Marc’s consent to adopt was not obtained because his 

parental rights had been terminated in the separate severance proceeding. 

In June 2009, the court issued an order of adoption. 

¶6 Four years later, Robyn divorced William. In March 2014, 

almost five years after the adoption order, William informed Marc about 

his 2009 adoption of Autumn and the 2009 severance of Marc’s parental 

rights. William invited Marc to live with him and Autumn in Arizona, 

while William’s health was deteriorating. Marc stayed for several months.

¶7 In September 2015, Marc filed a motion in the adoption case 

seeking to restore his parental rights. In support of his request, Marc 

presented affidavits from himself and William attacking the juvenile

court’s personal jurisdiction in the severance proceeding, contending that:

(1) prior to the severance hearing, Robyn knew that Marc had resided in 

New York since 2008, and both Robyn and the adoption case manager

knew of his New York address prior to serving him with process by 

publication; (2) Robyn knew Marc had been living in New York, as shown 

by a January 2009 email exchange between Robyn and Marc, but Robyn 
MARC S. v. ROBYN P. et al.

Decision of the Court

4

lied to the adoption attorney about that fact and sought to have the 

severance petition served in Scottsdale; and (3) information provided to 

the court by the adoption case manager in 2009 that he lived in Scottsdale 

was not accurate because during those January 2009 conversations Marc 

had told the adoption case manager he was living in New York but that 

documents left at the Scottsdale address would be forwarded to him by 

the woman living there. In an affidavit filed with the court, Marc also 

stated that the first time he learned about the severance and adoption was 

in March 2014 when William told him about the severance and adoption. 

¶8 In October 2015, the juvenile court denied Marc’s motion to 

restore parental rights without holding an evidentiary hearing.

2 It held 

the motion was barred by A.R.S. § 8-123 because it was filed more than 

one year after the adoption order. It also found Marc had knowledge of 

the termination through the severance minute entry in 2009, and if he had 

not received it, he knew there was a termination proceeding or knew of 

the termination at least as of March 2014, but failed to act until September 

2015 when he filed his motion to restore parental rights. The court 

indicated that it would later decide Robyn’s request for attorneys’ fees. It 

did not certify its order as final for purposes of appeal. 

¶9 Five days later, Marc appealed the juvenile court’s order 

denying his motion. In late December 2015, the court denied Robyn’s 

request for attorneys’ fees. Marc did not file an amended notice of appeal. 

DISCUSSION

I. Appellate Jurisdiction 

¶10 We have an independent duty to determine our appellate 

jurisdiction. See Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 

(App. 1997) (noting appellate court has an independent duty to examine 

whether it has appellate jurisdiction over putative appeals). We construe 

Marc’s motion to be one for relief from the severance and adoption orders 

pursuant to Arizona Rules of Procedure for the Juvenile Court (“Juvenile 

Rules”) 85(A), incorporating standards for relief from judgment from 

Arizona Rule of Civil Procedure 60(c) (“Rule 60”). As such, the October 

2015 order denying his motion would be appealable if it was a final order 

 

2 The court interpreted the motion as requesting restoration of 

parental rights and vacation of the default severance order. 
MARC S. v. ROBYN P. et al.

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5

and the notice of appeal was filed within fifteen days of entry of the order. 

Juvenile Rules 103(A) and 104(A); Tripati v. Forwith, 223 Ariz. 81, 84, ¶ 14 

(App. 2009) (holding that a final order denying a Rule 60(c) motion is 

appealable pursuant to A.R.S. § 12-2101(A)(3) (2016)).

3

¶11 Marc’s notice of appeal was filed within fifteen days of the 

entry of the October order. However, that order was not final because the 

court had expressly indicated that it was still going to consider Robyn’s 

request for attorneys’ fees and had not certified that no reason existed to 

delay entry of the final order pending the fees issue. See Bollerman v. 

Nowlis, 234 Ariz. 340, 341, ¶ 1 (2014) (holding that an otherwise appealable 

judgment was not final for purposes of appeal if an issue of attorneys’ fees 

was left undecided and the court had not included language from Arizona 

Rule of Family Law Procedure 78(B) certifying the order was final for 

purposes of appeal).4 Marc’s notice of appeal was thus premature. That 

appeal was not made effective by Arizona Rule of Civil Appellate 

Procedure (“ARCAP”) 9(c), providing that a notice of appeal filed after the 

court announces an order or other form of decision but before entry of the 

resulting judgment is deemed filed as of the date of entry of the judgment. 

See Camasura v. Camasura, 238 Ariz. 179, 182-83, ¶¶ 12-16 (App. 2015)

(holding that ARCAP 9(c) does not apply to an order entered but leaving a 

request for attorneys’ fees for later decision). Thus, Marc’s premature 

appeal was a nullity. Id. at 181, ¶ 6.

¶12 We have discretion to consider Marc’s appeal as a petition 

for special action. See Grand v. Nacchio, 214 Ariz. 9, 17-18, ¶¶ 20-25 (App. 

2006) (holding that court of appeals may consider an appeal as a special 

action petition and accept jurisdiction when jurisdiction over an appeal is 

 

3 “An appeal may be taken to the court of appeals from the superior 

court . . . [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.” A.R.S. § 12-2101(A)(3) (2016).

4 While no Juvenile Rule references a certification of a judgment as 

final despite the existence of remaining issues to be decided, we will apply 

Arizona Rule of Civil Procedure 54(b), since it does not expressly conflict 

with any Juvenile Rule. See Juvenile Rule 67 (providing that the Juvenile 

Rules shall be interpreted in a manner designed to protect the best 

interests of the child). 
MARC S. v. ROBYN P. et al.

Decision of the Court

6

lacking). Given the issues in this case dealing with the severance of a 

father’s parental rights, the later adoption of the child, and the allegations 

of fraud on the court, we treat the appeal as a petition for special action, 

accept jurisdiction of the special action, but deny relief. 

II. Section § 8-123 as Applied to Challenging the Adoption Order

¶13 Marc argues that the juvenile court incorrectly interpreted 

and applied A.R.S. § 8-123 because the statute limits the time to correct an 

“irregularity in the proceeding,” id., and a lack of personal jurisdiction is 

not a mere irregularity. 

¶14 We review issues of statutory interpretation and application 

of statutes and rules de novo. Pima Cty. v. Pima Cty. Law Enf't Merit Sys. 

Council, 211 Ariz. 224, 227, ¶ 13 (2005). We will affirm the superior court 

on any basis supported by the record. City of Phoenix. v. Geyler, 144 Ariz. 

323, 330 (1985).

¶15 Section § 8–123 provides that: “After one year from the date 

the adoption decree is entered, any irregularity in the proceeding shall be 

deemed cured and the validity of the decree shall not thereafter be subject 

to attack on any such ground in any collateral or direct proceeding.” 

Despite the language of the statute, in Goclanney v. Desrochers, 135 Ariz. 

240, 242 (App. 1982), we held that lack of jurisdiction was not an 

irregularity within the meaning of the statute. Accordingly, if the alleged 

fraud on the court as to service of process had occurred in the adoption 

proceeding, the juvenile court would have erred in barring Marc’s motion 

under § 8-123. Without proper service of process, a court lacks 

jurisdiction over a party and any judgment against the party would be 

void. “Proper service of process is essential for the court to have 

jurisdiction over the defendant. Consequently, a judgment would be void 

and subject to attack if the court that rendered it was without jurisdiction 

because of lack of proper service.” Duckstein v. Wolf, 230 Ariz. 227, 233, ¶ 

18 (App. 2012).

5

 

5 As the juvenile court recognized in its order, Marc was seeking to 

vacate both the adoption order and the order severing his parental rights. 

By its own terms, § 8-123 does not apply to a motion challenging a 

severance order. Despite that fact, we affirm the court’s decision as to the 

severance order for the reasons stated below.
MARC S. v. ROBYN P. et al.

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¶16 The alleged fraud on the court did not occur in the adoption 

proceedings, but in the separate parental severance proceedings. We have 

not found an Arizona decision addressing whether a jurisdictional defect 

in a severance proceeding, which leads to an adoption without notice to or 

consent of the parent who has lost their parental rights, amounts to a mere 

irregularity in the adoption proceeding. Cf. Roberto F. v. Ariz. Dept. of Child 

Safety, 1 CA-JV 13-0209, 2015 WL 5827093 at * 1, ¶4 (Ariz. App., Oct. 6, 

2015) (mem. decision) (holding that once mandate issued in appellate 

court decision vacating order severing father’s parental rights, father was 

entitled to vacation of order of adoption entered while appeal from 

severance order was pending).

¶17 However, we need not decide whether § 8-123 can apply to 

an alleged jurisdictional defect that occurred outside of the adoption 

proceedings. Rather, we construe § 8-123 to bar a challenge to an 

adoption proceeding if the absent parent failed to bring the motion within 

one year of learning of the adoption or the fraud. In Husband (G.T.B.) v. 

Wife (G.R.), 424 A.2d 12, 14-15 (Del. 1980), the Delaware Supreme Court 

affirmed an order denying an adoptive father’s request to vacate an 

adoption based on an alleged fraud by the biological mother. The court 

reasoned in the alternative that a statute similar to § 8-123 but providing 

for a two year time limitation tolled the statute of limitations to challenge 

the adoption only until such time as the adoptive father discovered or 

should have discovered the fraud. The court concluded that since the 

adoptive father had filed the action for relief more than two years after 

learning of the fraud, the statute barred his motion. See also Walk v. Ring, 

202 Ariz. 310, 319, ¶ 34 (2002) (holding that a statute of limitations for 

malpractice was tolled by the defendant’s fraudulent concealment of the 

facts until the plaintiff knew or should have known of the concealed 

facts).6

¶18 That is the case here. Marc claimed in an affidavit that the 

first time he learned of the severance and adoption was in March 2014. As 

 

6 Nothing in our decision should be read to imply that a parent can 

commit a fraud on the court relating to service of process in a severance 

proceeding and then successfully petition for adoption without notice to 

the parent whose rights were severed without adequate notice. A parent 

committing such a fraud takes his or her chances that A.R.S. § 8-123 will 

not bar a later, timely challenge to the adoption. 
MARC S. v. ROBYN P. et al.

Decision of the Court

8

the juvenile court noted, Marc failed to file the motion to vacate the 

adoption order for more than one year, until September 2015. As such, § 

8-123 barred the motion because Marc knew of the severance and 

adoption more than one year before filing his motion for relief from the 

adoption proceeding. 

¶19 In so holding, we recognize there is no common-law time 

limit for filing a motion for relief from judgment based on fraud on the 

court. Alvardo v. Thomson, 1 CA-SA 16-0051, 2016 WL 3063781, at *3, ¶¶ 

15-16 (Ariz. App. May 31, 2016) (mem. decision). Nor does the doctrine of 

laches apply when there is lack of personal jurisdiction through an alleged 

fraud on the court. McNeil v. Hoskyns, 236 Ariz. 173, 178, ¶ 20 (App. 2014)

(citing Gordon v. Gordon, 35 Ariz. 357, 365-66 (1929) for the principle that:

“[P]laintiff committed fraud on the court by affidavit falsely representing 

she did not know where defendant lived”). See also In re Milliman’s Estate, 

101 Ariz. 54, 58 (1966) (“The theory underlying the concept of a void 

judgment is that it is legally ineffective—a legal nullity; and may be 

vacated by the court which rendered it at any time. Laches of a party 

cannot cure a judgment that is so defective as to be void; laches cannot 

infuse the judgment with life.”) (quoting 7 Moore’s Federal Practice §

60.25(4) (2d ed. 1955)) (emphasis added); Master Fin., Inc. v. Woodburn, 208 

Ariz. 70, 74, ¶ 19 (App. 2004) (motion to vacate void judgment is never 

untimely, “even in the case of unreasonable delay by the party seeking 

relief”); Martin v. Martin, 182 Ariz. 11, 14 (App. 1994) (holding that time 

does not limit court’s duty to vacate a void judgment even when the party 

seeking relief delayed unreasonably). Accord Cypress on Sunland 

Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 299-300, ¶¶ 42-43 (App. 2011) 

(“When a party obtains a judgment by concealing material facts and 

suppressing the truth with the intent to mislead the court, this constitutes 

a fraud upon the court, and the court has the power to set aside the 

judgment at any time.”). 

¶20 Our ruling today as to Marc’s attack on the adoption order is 

not based on laches or a common-law time limit for filing a motion for 

relief from an adoption order. Rather, it is based on the statutory bar of § 

8-123, which we construe as limiting a challenge to an adoption order filed 
MARC S. v. ROBYN P. et al.

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9

more than one year after Marc learned of that order or the underlying 

severance order.

7

¶21 We also reject Marc’s argument that at a minimum, the 

juvenile court should have held an evidentiary hearing on his allegations 

of a fraud on the court affecting the jurisdiction of the court to sever his 

parental rights in his absence. Normally, if there is a genuine dispute over 

material facts as to a fraud on the court relating to service of process and 

personal jurisdiction, the court should hold an evidentiary hearing. 

Duckstein, 230 Ariz. at 229, ¶ 1 (“[W]hen a motion to set aside a default 

judgment presents contested issues of material fact and a party requests 

an evidentiary hearing, the trial court should conduct an evidentiary 

hearing before ruling on the motion.”). Here, however, there was no 

genuine dispute of material fact that Marc knew of the severance and 

adoption in March 2014 but delayed filing his motion for relief from the 

adoption order for more than one year. As such, no evidentiary hearing 

was needed. 

¶22 Accordingly, we affirm the juvenile court’s order denying 

Marc’s motion to restore his parental rights by vacating the adoption 

order. 

III. Motion to Vacate the Severance Order

¶23 Finally, we deal with Marc’s motion as it relates to the 

severance order. To challenge a severance order issued after a party fails 

to appear to contest the severance, the movant must show that he had 

good cause to excuse his failure to appear and a meritorious defense. 

Christy A. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 299, 304, ¶ 16 (App. 2007).

We need not address the former requirement because Marc’s motion did 

not present a meritorious defense. 

 

7 Robyn argues that Marc’s motion is untimely under Juvenile Rule 

46(E), which requires a motion for relief from judgment for fraud to be 

filed within six months of the order. This argument was not raised in the 

juvenile court, so we will not address it on appeal. See Barkhurst v. 

Kingsmen of Route 66, Inc., 234 Ariz. 470, 476, ¶ 22 (App. 2014). 
MARC S. v. ROBYN P. et al.

Decision of the Court

10

¶24 In his motion, Marc argued that Robyn had prevented him 

from seeing Autumn. We have held that when a parent seeking 

termination of the other parent’s parental rights substantially interferes 

with that other parent’s access to the child, termination cannot be granted 

based on abandonment. Calvin B. v. Brittany B., 232 Ariz. 292, 297, ¶ 21 

(App. 2013). However, Marc conceded that despite the juvenile court in 

the custody matter having granted him parental rights, once Robyn 

attempted to interfere with those rights, he left for New York and had no 

contact with Autumn for approximately five years. When a parent is 

faced with burdens interfering with his or her access to their child, we 

expect the parent to take all reasonable actions to have access and 

continue their relationship with the child. Michael J. v. Ariz. Dep’t of Econ. 

Sec., 196 Ariz. 246, 250, ¶ 22 (2000) (citations omitted).

¶25 Prior to the severance proceeding, Marc could have filed a 

motion to enforce the order granting him parental rights, especially 

because in that order the court noted its concern that Robyn might 

interfere with his access to Autumn. Instead of trying to enforce those 

rights, Marc left and stayed away for over five years. While we 

understand that Marc contended he was undergoing great stress at the 

time and that Robyn was simply going to replace him with William, we 

have to judge Marc’s conduct by his actions, not his intent. Id. at 249, ¶ 18. 

Marc’s affidavits do not amount to a prima facie showing of a meritorious 

defense on the grounds of abandonment because he left Arizona rather 

than fight for his rights to his child. The court did not err in denying the 

motion to vacate the severance order.

CONCLUSION

¶26 For the foregoing reasons, we consider the appeal as a 

petition for special action, accept jurisdiction, but deny relief.