In re the Marriage of Friedman

397 P.3d 1063, 242 Ariz. 463, 767 Ariz. Adv. Rep. 6, 2017 WL 2644629, 2017 Ariz. App. LEXIS 123

• Court: Court of Appeals of Arizona
• Decided: June 19, 2017
• Docket: No. 2 CA-CV 2016-0029
• Status: Published

Opinions

OPINION

ESPINOSA, Judge:

¶ 1 Lisa Friedman appeals the trial court’s decision to grant visitation rights to the paternal grandparents of her two children. She contends the court failed to accord sufficient weight to the presumption that her decision to deny visitation was in the children’s best interests, effectively shifting the burden of proof to require her to prove visitation was not in them best interests. For the reasons that follow, we affirm.

Factual and Procedural Background

¶ 2 We view the record in the light most favorable to upholding the trial court’s decision. Johnson v. Johnson, 131 Ariz. 38, 44, 638 P.2d 706, 711 (1981). Lisa Friedman and David Roels Jr. married in 2001 and have two minor children: M., born in 2003, and R., bom in 2006. The couple separated informally in March 2010, following an incident in which Roels “went into a rage” and was admitted to a psychiatric facility with suicidal ideation. Friedman petitioned for legal separation in September 2010, and for dissolution of the marriage in May 2011. She and Roels signed a consent decree of dissolution in July 2011.

¶3 Roels has had supervised parenting time since the separation. He had no legal decision making authority over the children until August 2016, when he and Friedman agreed that while Friedman would retain “final decision making authority,” she would consult with Roels on non-emergency matters. The children received counseling beginning in June 2010 and participated in several family therapy sessions with Roels in 2012, 2013, and 2016. He had been abusive at times during the marriage, including yelling and losing his temper, and “kicking [M.] once” and “holding him and grabbing him once.”

¶4 In April 2014, paternal grandparents David Roels Sr. and Claudia Roels (Grandparents) filed a petition pursuant to A.R.S. § 26-409 to obtain court-ordered visitation. The trial court entered a temporary order allowing them to participate in Roels’s supervised parenting time for a minimum of one hour per month. At that time, they had not spoken to the children in nearly four years, at Friedman’s insistence.

¶ 6 The trial court conducted a two-day hearing in August 2015. Grandparents testified that before the parents’ separation, they had enjoyed a close relationship with the children. They had attended M.’s birth and met R. a week after hers and frequently travelled to Tucson to attend school and sports activities and spend time with the family. On two occasions, they had provided child care during the day for multiple-day periods and were a regular presence in the children’s lives. After the separation, Friedman cut off Grandparents’ access to the children and insisted there be no contact between them. Grandparents, however, attempted to maintain contact by sending the children cards and gifts for their birthdays and holidays.¹

¶ 6 The children were initially averse to reuniting with their grandparents: Roels testified that when he first had spoken to them about the visits, M, had stated he “d[id]n’t want [Grandparents] to come.” After the first visit, however, “there just wasn’t any apprehension or ... tension.” Delana Cota, a family support specialist who supervised the first visit, described the children’s initial reaction to their grandparents as “quiet” and “awkward,” but recognized that “the mood of the visit elevated ... [and] [b]eeame more comfortable.” When Grandparents left, Cota overheard M. and R. discussing the visit and heard R. ask M., “Do you agree with me, it was good with grandparents,” to which M. said, “Pretty nervous about nothing.” R. then responded, “You would be fine if they came again, are you with me ... I like them coming.”

¶ 7 Bethany Aaronson, another independent visit supervisor, testified that Grandparents planned extensively for their court-ordered visits and the children appeared to enjoy them. She characterized the visits as “very successful” and noted that when Grandparents were around, the activities were more structured and there was “more laughing, more kidding around” and everyone was “a little more involved and engaged.” In contrast, Aaronson described visits with only Roels as “unstructured” with “[t]he children often spending] a lot of time looldng at their devices.” But when Grandparents were present, “the children engaged with the activities, and as a result ... then began engaging with the adults.” On one occasion, “the children spontaneously got up and hugged [Grandparents] a second time before they left.”

¶ 8 Friedman and two therapists testified the children had anxiety and PTSD² symptoms both during and outside the supervised visits. Beth Winters, the children’s former therapist who had never met or evaluated Grandparents, opined that the children “could have been” exhibiting behavior “indi-eat[iv]e ... [of] trauma” due to Grandparents’ visitation, but acknowledged that the children’s awareness of their mother’s feelings toward them grandparents could have influenced them. She also agreed that it is “important for children to have grandparents in them lives.” Karen Morse, the children’s other therapist, similarly testified they had been “trauma[tized]” in the past, but were improving as of October 2014. Morse, who also had never met or evaluated Grandparents, concluded that news of court-ordered grandparent visits had caused the children to become more anxious, and opined that they experienced trauma during Grandparents’ visits.

¶ 9 The trial court found the expert opinions to be of limited usefulness, and in a detailed under-advisement ruling, after considering all relevant evidence, “including the demeanor and credibility of the parties,” determined it was in the children’s best interests to have visitation with their grandparents. The court entered an order entitling Grandparents to video calls with the children every two weeks and allowing them to participate in portions of Roels’s supervised parenting time.³ Friedman filed a timely motion for new trial, which the court denied, and this appeal of the denial of the motion for new trial followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5).

Grandparents’ Visitation Request

¶ 10 Friedman contends the trial court erred in awarding Grandparents visitation despite Friedman, as the children’s “only fit parent,” having determined the visits were contrary to the children’s best interests. We review the decision to award grandparent visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, ¶ 6, 33 P.3d 506, 509 (App. 2001).

¶ 11 Section 25-409(C), A.R.S., provides “a person other than a legal parent may petition the superior court for visitation with a child” and the court “may grant visitation rights during the child’s minority on a finding that the visitation is in the child’s best interests and ... [f]or grandparent or great-grandparent visitation, the marriage of the parents has been dissolved for at least tlmee months.” Subsection (E) further states:

In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including:

1. The historical relationship, if any, between the child and the person seeking visitation.

2. The motivation of the requesting party seeking visitation.

3. The motivation of the person objecting to visitation.

4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.

§ 25—409(B). Subsection (F) adds, “If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.” § 25-409(F), Finally, subsection (G) directs grandparents and great-grandparents to petition for visitation in the same case in which the court determined the parents’ legal decision-making authority and parenting time. § 25-409(G).

¶ 12 As § 25-409(E) states, a trial court considering a request for non-parent visitation must give “special weight to the legal parents’ opinion of what serves their child’s best interests.” This aligns with the Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). As Friedman points out, the Court in that case held that parents have a fundamental liberty interest under the Fourteenth Amendment to the “care, custody, and control of their children,” with a “presumption that fit parents act in the best interests of their children.” Trowel, 530 U.S. at 65, 68, 120 S.Ct. 2054; see also McGovern, 201 Ariz. 172, ¶ 17, 33 P.3d at 511. “However, grandparent visitation granted within the parameters of § 25-409 ‘does not substantially infringe on parents’ fundamental rights.’” Lambertus v. Porter, 235 Ariz. 382, ¶ 29, 332 P.3d 608, 614 (App. 2014) (Brown, J., dissenting), quoting McGovern, 201 Ariz. 172, ¶ 9, 33 P.3d at 509.

¶ 13 In McGovern, this court set forth “constitutionally based principles that a trial court should ... follow in determining .,. grandparent visitation rights under § 25-409.” 201 Ariz. 172, ¶ 17, 33 P.3d at 511. First, the court should apply a rebuttable presumption that “a fit parent acts in his or her child’s best interest in decisions ... concerning grandparent visitation.” Id. And second, the court must give “‘some special weight’ to a fit parent’s determination of whether visitation is in the child’s best interests.” Id. ¶ 18, quoting Trowel, 530 U.S. at 70, 120 S.Ct. 2054. The McGovern court concluded that “[t]he amount of weight a trial court should place on these factors” is an issue left “for development on a case-by-case basis.” Id., quoting Harrington v. Daum, 172 Or. App. 188, 18 P.3d 456, 460 (2001). We stressed that these principles “affect but do not necessarily control a trial court’s determinations of ‘best interests of the child’ and ‘reasonable [grandparent] visitation rights’ under [§ 25-409].” Id. ¶ 19.

¶ 14 Here, the trial court followed McGovern and applied the presumption that Friedman was acting in the children’s best interests in denying visitation, but ultimately expressly determined Grandparents had rebutted that presumption, In reaching its conclusion, the court made extensive findings regarding the children’s best interests while acknowledging it was required to “give ‘some special weight’ to a fit parent’s determination of whether visitation is in the child’s best interest” and “consider all relevant factors, including those ... enumerated in A.R.S. § 25-409.” See § 25^09(E). In doing so, the court explicitly “g[ave] deference to [Friedman]’s position” and “applied the presumption that [Friedman] has and shall continue to make decisions that are in the children’s best interests.”

¶ 15 Specifically, the trial court found Grandparents had a “significant relationship [that] was very positive with the children” until the parents separated, see § 25-409(E)(1), and since the relationship resumed in 2015, it had been “progressing well.” The court noted “[Grandparents ha[d] planned for weeks for each visit and ha[d] provided activities and structure to keep the children involved,” which the children responded well to, offering “spontaneous hugs” at the end of some visits. It additionally considered the testimony of Bethany Aaronson that Roels experienced quality parenting time when Grandparents were present; Aaronson observed “a lot of laughter and joking,” but noted “the children’s affect changed upon seeing Mother following the visits” immediately from a happy demeanor to a subdued one.

¶ 16 As for the therapists’ opinions, the trial court found that Morse had only reviewed “very limited, selected supervised visitation reports provided by [Friedman]”; had never observed the children with Grandparents or Roels; her primary input had been from Friedman; and it was unclear how she had ascertained Friedman was not alienating the children from Grandparents. The court further noted that Winters had not had much time with the children in recent years. It is well established that “[t]he weight and credibility to be given expert testimony are matters to be decided by the factfinder.” Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 45, 945 P.2d 317, 356 (App. 1996), quoting State v. Moyer, 151 Ariz. 253, 255, 727 P.2d 31, 33 (App. 1986); see also State v. Pesqueira, 235 Ariz. 470, ¶ 14, 333 P.3d 797, 802 (App. 2014) (“the weight and credibility of [expert] testimony ... are questions of fact”), quoting Pipher v. Loo, 221 Ariz. 399, ¶ 17, 212 P.3d 91, 96 (App. 2009).

¶ 17 The trial court also found Grandparents were “motivated by love” of the children and a desire to influence them in a positive way, among other factors, and expressed its concern that Friedman was motivated in part by a continued desire to exclude Grandparents because of her relationship with them. See § 25-409(E)(2)-(3). The court was also concerned that some of the children’s reported behaviors and reactions to Roels and Grandparents were “due to [Friedman’s] own reactions” to them. The court further found that the visitation requested by Grandparents would not have “an adverse impact on the children’s customary activities.” See § 25-409(E)(4). Finally, the court noted that Roels “wants his parents to continue to have a relationship with the children.”

¶ 18 On the latter point, it is significant that there are two parents here who agreed to share decision-making, and they have conflicting views about whether it is in their children’s best interests to have visitation with their grandparents. Roels articulated his position at trial, stating he felt it was important for the children to have a relationship with his parents because “they need to know also where they come from” and should “connect[ ] to more than just [their] mom and dad.” Friedman, on the other hand, opposed the few hours of grandparent visits, claiming it caused “[the] kids” to “[go] down hill,” and alleging increased anxiety, panic attacks, and problems at school. Although Roels’s rights in relation to the children bear some significant restrictions and the parties agreed that Friedman has “final decision making authority” in the event of a disagreement, as Grandparents point out, Roels was not found to be an unfit parent and therefore his “determination” is also entitled to “special weight.” See Troxel, 630 U.S. at 68-70, 120 S.Ct. 2054.⁴

¶ 19 We conclude the trial court applied the proper standards in awarding visitation to Grandparents. The court correctly employed the fit-parent presumption and the factors set forth in § 25-409(E), it expressly accorded “special weight” to Friedman’s position, and there is sufficient evidence to support its conclusion that Grandparents had overcome the presumption.

¶20 Friedman and our dissenting colleague rely on Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 687 (App. 2016), issued after the trial court ruled in this case. There, Division One of this court addressed a situation in which the mother opposed her former cohabiting girlfriend’s request for visitation with the child. The court reversed the trial court’s visitation order in favor of the former girlfriend, holding that the “special weight” accorded a parent’s visitation decision means the party seeking visitation must prove the denial of visitation “would substantially impair the child’s best interest.” Friedman argues that Goodman should be applied retroactively to this case and that Grandparents failed to meet its standard. Grandparents respond that Goodman set new, heightened requirements not contained in either § 25-409 or McGovern, and should not be applied here. We conclude, however, we need not resolve those issues because we find Goodman significantly distinguishable.

¶21 In Goodman, only one parent was involved, as the father’s rights had been severed. 239 Ariz. 110, ¶ 3, 366 P.3d at 588. The father in this case, however, has always been, and continues to be, involved in the children’s lives. As noted above, absent a finding that he was an unfit parent, the trial court, pursuant to § 25-409(E), properly considered Roels’s position that maintaining a relationship with their grandparents was in the children’s best interest. Furthermore, the person seeking visitation in Goodman was a former cohabiting partner with no other ties to the child. 239 Ariz. 110, ¶¶ 4-6, 366 P.3d at 588. In contrast, the grandparents here have biological and familial ties that will be present now and in the future. See, e.g,, Graville v. Dodge, 195 Ariz. 119, ¶ 26, 985 P.2d 604, 610 (App. 1999) (noting state’s interest in promoting “continuation of caring relationships between family members, particularly among grandchildren and their grandparents”); Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512, 525 (2006) (all states have a system for awarding grandparent visitation because they recognize “the importance of the grandparent-grandchild relationship in the lives of children”), quoting Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203, 210 (2003).⁵ Finally, the Goodman court noted the mother’s concerns about the former girlfriend fighting with her current girlfriend in the child’s presence, and that she had spanked the child and “struck her face,” 239 Ariz. 110, ¶¶ 4-6, 366 P.3d at 588-89. Thus, to the extent Goodman may establish a more stringent standard for court-ordered visitation than § 25-409 and McGovern, we decline to extend its holding to the very different situation presented here.

¶ 22 The trial court made detailed findings clearly supported by the evidence,⁶ see In re Estate of Newman, 219 Ariz. 260, ¶ 13, 196 P.3d 863, 868 (App. 2008), and viewing that evidence in the light most favorable to upholding the court’s ruling, see Johnson, 131 Ariz. at 44, 638 P.2d at 711, we conclude Grandparents demonstrated that Friedman’s decision to bar them from visitation was not in the children’s best interests, see McGovern, 201 Ariz. 172, ¶¶ 17-18, 33 P.3d at 511. Accordingly, we cannot say the court’s limited visitation award was an abuse of its discretion. Although our dissenting colleague concludes “[t]he constitutional protection afforded to parents represents a high bar[,]” it should not be so high that few, if any, grandparents could ever clear its hurdle were there a requirement of establishing harm to the children from denial of visitation in every case.

Trial Court’s Denial of Attorney Fees

¶ 23 Friedman also appeals the trial court’s denial of her request for attorney fees pursuant to A.R.S. § 25-324(A), which allows a discretionary fee award in domestic relations proceedings, including requests for non-parent visitation pursuant to § 25-409. The court has discretion to grant such an award “after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.” § 25-324(A). We review the court’s denial of fees for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, ¶ 6, 333 P.3d 818, 821 (App. 2014).

¶ 24 In assessing the fee request, the trial court imputed an $80,000 annual income to Friedman based on her earnings the previous year, and compared Grandparents’ $122,000 annual income. It also considered that Friedman is “expected to be sharing expenses with her boyfriend in California” and that their combined income “will probably be greater than [G]randparents[’],” despite having heard no testimony about the boyfriend’s income. Though it appeal’s the court may have made an unsupported assumption about Friedman’s prospective income, in light of the reasonableness of each party’s positions and § 25-324(A)’s discretionary nature, we see no reason to disturb the court’s decision to decline the fee request.

Attorney Pees on Appeal

¶ 25 Both parties request an award of fees and costs on appeal pursuant to § 25-824. After considering the financial resources and the reasonableness of the positions of the parties, we find each side should bear its own fees and costs on appeal. See Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007).

Disposition

¶ 26 For all of the reasons discussed above, the trial court’s order granting visitation with Grandparents is affirmed.

1 . Grandfather testified he did not know whether the cards and gifts actually had reached the children, but said "most of the time” previously they would receive thank-you cards, written by Friedman or, later, drawn by the children, but that stopped in 2010 with the separation.

2 . Posttraumatic stress disorder.

3 . The bulk of Roels's parenting time and Grandparents’ visits were to occur by video because of Friedman’s pending relocation with the children to California, which Roels stipulated to the day before the hearing began.

4 . The dissent suggests Roels should not be considered a fit parent due to the agreement limiting his rights, and notes that Grandparents did not argue otherwise below. But the trial court had a statutory duty to consider the positions of both parents in relation to the best interests of the children, notwithstanding any agreements between the parties. A.R.S, § 25-409(E) (court "shall give special weight to the legal parents’ opinion") (emphasis added). Furthermore, even if this could properly be characterized a "waived” argument, it is well established we are not limited to the theories of the parties in upholding the trial court's correct decision. See State v. Huez, 240 Ariz. 406, ¶ 19, 380 P.3d 103, 109 (App. 2016) (appellate court required to affirm trial court's ruling if legally correct for any reason).

5 . The dissent argues "we should conclude the legislature did not intend any distinction [between grandparents and other third-parties] be drawn.” But this assertion discounts, if not ignores, the numerous distinctions drawn in the statute itself. For example, A.R.S. § 25-409(F) mandates that the trial court "shall,” if logistically possible and appropriate, "order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access,” a benefit not afforded to other third-parties seeking visitation. Moreover, the trial court not only could but was required to consider the nature of the relationship between Grandparents and the children. § 25—409(E)(1)—(2), (4).

6 . Our dissenting colleague would find the evidence insufficient to support the trial court’s ruling, but he focuses on the factors involving Grandparents' motivation, while ignoring or discounting other evidence the court expressly and implicitly considered, including Grandparents' positive effects on the children's visits with Roels, the potential loss to the children of the love and support of their extended family, indications that Friedman’s efforts to alienate the children from Grandparents were exacerbating the children's anxiety, and the negative effects of her "setting the kids up” to be unhappy about Grandparents.