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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

NICOLE RUSS, Petitioner/Appellant,

v.

JEREMY TOGNETTI, Respondent/Appellee.

No. 1 CA-CV 21-0563 FC

Appeal from the Superior Court in Maricopa County

No. FC2021-070140

The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Nicole Russ, Peoria

Petitioner/Appellant

Jeremy Tognetti, Surprise

Respondent/Appellee

FILED 7-26-2022
RUSS v. TOGNETTI

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which 

Chief Judge Kent E. Cattani and Judge Angela K. Paton joined.

M c M U R D I E, Judge:

¶1 Nicole Russ (“Mother”) appeals from the superior court’s 

order declaring Jeremy Tognetti (“Father”) the legal father of the child, 

Riley,1 and ordering joint legal decision-making, equal parenting time, and 

child support. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On June 9, 2014, Mother and Father signed a voluntary 

acknowledgment of paternity at Riley’s birth. The parties were never 

married, but they resided with Riley until their separation in August 2020.

The parties struggled to amicably co-parent Riley. In February 2021, Mother 

petitioned the superior court to decide paternity, legal decision-making, 

parenting time, and child support. 

¶3 The court held a resolution management conference, during 

which Mother asked the court to order Father and Riley to take a genetic 

paternity test. The court granted the request, and the examination revealed 

that Father is not Riley’s biological father.2 As a result, Mother proposed

that the court award her sole legal decision-making and name her the 

primary residential parent. Father argued that because he has served in a 

parental role for seven years, it is in Riley’s best interest that he remain in 

Riley’s life. For that reason, he asked the court to order joint legal 

decision-making and equal parenting time. Father also conceded that child 

support should be awarded and stated his income was around $4580 per 

month.

1 To protect the child’s identity, we refer to him by a pseudonym.

2 We note that no third party has moved to intervene or appeared 

claiming to be the biological father.
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¶4 After an evidentiary hearing, the court issued a judgment for 

paternity, legal decision-making, parenting time, and child support. The 

court explained that a voluntary paternity acknowledgment is given the

same force and effect as a judgment. Either party may rescind that

judgment for any reason up to 60 days after the last signature is affixed to

a filed acknowledgment. After 60 days, a party may only rescind the 

judgment within six months based on fraud, duress, or mistake of material 

fact. Thus, the court determined that Mother was time-barred from 

challenging the acknowledgment of Father’s paternity and declared that 

Father is Riley’s legal parent. See A.R.S. § 25-401(4).

¶5 The court then analyzed the best-interests factors under 

A.R.S. §§ 25-403 and -403.01, noting that Riley “has a good relationship with 

both Mother and Father.” The court cited Mother’s testimony that Riley 

“loves” Father, and Father has been “very involved” in Riley’s life. 

Ultimately, the court found that it was in Riley’s best interest for Mother 

and Father to share joint legal decision-making authority and equal 

parenting time. Based on Father’s stated monthly income of $4580, the court

ordered him to pay $95 per month for child support per the child support 

guidelines.

¶6 Mother appealed, and we have jurisdiction under A.R.S. 

§§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶7 Mother argues that the court erred by (1) concluding that 

Mother was time-barred from challenging paternity, (2) ordering joint legal 

decision-making and equal parenting time, (3) failing to order child support 

retroactively, and (4) incorrectly determining Father’s income when 

calculating child support.

¶8 We will accept the court’s factual findings as true unless they 

are clearly erroneous, but we review its conclusions of law de novo. Birnstihl 

v. Birnstihl, 243 Ariz. 588, 590–91, ¶ 8 (App. 2018). We review child support, 

legal decision-making, and parenting time orders for an abuse of discretion. 

Id. (child support); Oleson v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App. 2021) (legal 

decision-making); DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019)

(parenting time). “We hold unrepresented litigants in Arizona to the same 

standards as attorneys.” Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017).

¶9 The superior court correctly concluded that Mother is

time-barred from challenging paternity because she commenced this action 

long after the six-month time limit imposed by Rule 85(c)(1). When a child 
RUSS v. TOGNETTI

Decision of the Court

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is born out of wedlock, the parents may establish paternity by a signed 

acknowledgment. A.R.S. § 25-812(A)(1). An acknowledgment of paternity 

has the same force and effect as a court judgment. A.R.S § 25-812(D). Either 

parent may rescind that judgment for any reason within 60 days of filing 

the acknowledgment. A.R.S. § 25-812(H)(1). After 60 days, however, the 

parents may only challenge the acknowledgment of paternity based on

fraud, duress, or mistake of material fact. A.R.S. § 25-812(E); see also Roger S. 

v. James S., 251 Ariz. 555, 568, ¶¶ 16–17 (App. 2021). But challenges to 

judgments based on fraud, misrepresentation, or other party misconduct 

can only be made up to six months after the judgment. Ariz. R. Fam. P.

85(b)(3), (c)(1); see Andrew R. v. ADES, 223 Ariz. 453, 457–58, ¶¶ 17–19 (App.

2010) (time limits imposed by court rules are incorporated into A.R.S. 

§ 25-812(E)). Mother seeks to challenge the judgment of Father’s paternity 

more than six years too late.

¶10 Mother also argues that the court abused its discretion when 

determining legal decision-making and parenting time because “there was 

overwhelming evidence” that Mother and Father cannot co-parent, Father 

did not maintain frequent contact with Riley, and Mother was always the 

primary caretaker. But the court considered Mother’s testimony that Riley 

“loves” Father and that Father has been “very involved” in Riley’s life and 

concluded it is in Riley’s best interest that Father remain in Riley’s life. The 

court did not abuse its discretion by ordering joint legal decision-making 

and equal parenting time.

¶11 Finally, Mother challenges the court’s child support order. 

She first argues the court “should have ordered arrears” for August 2020 to 

August 2021 when Mother and Father were separated while Mother took 

primary care of Riley. But there was no prior child support order from

which Father could owe arrearages. Moreover, even if we interpret

Mother’s argument as one for retroactive child support under A.R.S. 

§ 25-809(A) and (B), she does not assert that she made such a request to the 

superior court and presents no argument that the court erred by not sua 

sponte ordering retroactive support. See Gelin v. Murray, 251 Ariz. 544, 547, 

¶¶ 15–16 (App. 2021) (court has the discretion to impose past support).

¶12 Mother also argues that the court erred by determining 

Father’s monthly income based only on his pretrial statement, which

included no earnings from his business. But Mother did not raise the issue 

below, and we will not consider it for the first time on appeal. See Odom v. 

Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007) (“Generally, 

arguments raised for the first time on appeal are untimely and deemed 
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waived.”); see also ARCAP 13(a)(7)(A) (argument must contain citations of 

legal authorities on which appellant relies).

CONCLUSION

¶13 We affirm.