Opinion
1 CA-CV 22-0316 FC
12-20-2022
In re the Matter of: ANDREW HAND, Petitioner/Appellee, v. SARAH MILLS, Respondent/Appellee. STEPHEN MILLS and IRMA MILLS, Intervenors/Appellants.
Stephen & Irma Mills, Pearce Intervenors/Appellants Andrew Hand, Tempe Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2018-095120 The Honorable Lisa Stelly Wahlin, Judge
Stephen & Irma Mills, Pearce Intervenors/Appellants
Andrew Hand, Tempe Petitioner/Appellee
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
MEMORANDUM DECISION
THUMMA, JUDGE
¶1 Stephen and Irma Mills appeal from an order modifying their third-party visitation rights with their granddaughter T.H. Because they have shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Andrew Hand (Father) and Sarah Mills (Mother), who never married, have one minor child together, T.H., who was born in 2012. In 2018, Father petitioned to establish legal decision-making, parenting time and child support. In mid-2019, the court issued a final order that Father had sole legal decision-making and was T.H.'s primary residential parent, with Mother having parenting time every other weekend. At that time, Mother was living with her parents, Stephen and Irma Mills (Grandparents), who cared for T.H. when Mother had parenting time.
¶3 In April 2020, Grandparents petitioned for third-party visitation, essentially seeking Mother's parenting time that they alleged she had not been using. See Ariz. Rev. Stat. (A.R.S.) § 25-409 (2022). Father expressed concern that Grandparents having regular visitation would expose T.H. to a "negative, emotionally unhealthy environment." Father then petitioned to essentially suspend Mother's parenting time. In December 2020, after an evidentiary hearing, the court issued an order providing Mother parenting time at Father's discretion and Grandparents in-person visits once a month and a week in the summer, and weekly calls every Sunday.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
¶4 In February 2022, Father petitioned to eliminate third-party visitation, claiming Grandparents were undermining his ability to parent and alienating his relationship with T.H. Father, Mother and Grandparents testified at the evidentiary hearing on the petition.
¶5 Father testified Grandparents made negative comments about him to T.H. and that the child would come back from visiting Grandparents "oppositional and defiant." A letter from T.H.'s therapist stated her relationship with Grandparents causes T.H. to feel "conflicted in her loyalty" because "her Grandmother does not like her Father and criticisms about him -- are often expressed." Father added that, after limiting Grandparents' visits, he and T.H. had begun "making progress," with T.H. being more respectful and responsible. The evidence also showed that, in response to Father limiting visits, Grandparents called him about 500 times during a three-week period.
¶6 Mother testified Grandparents should continue to have visits. Grandparents testified about their relationship with, and history of caring for, T.H. and that it was in the child's best interests to continue to spend time with them. Grandparents denied making negative comments about Father, claiming instead that T.H. was lying to her therapist. Although calling Father's attempts to limit visits "disturbing," Grandparents admitted to calling him hundreds of times in response.
¶7 After taking the matter under advisement, the court issued a detailed 6-page minute entry granting Father's petition in part. The court limited Grandparents' visits to weekly phone calls, subject to monitoring by Father, and that in-person visitation be at Father's discretion. After the court denied Grandparents' motion to reconsider, they filed this timely appeal. This court has jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(2). See also Yee v. Yee, 251 Ariz. 71 (App. 2021).
DISCUSSION
¶8 This court reviews the superior court's ruling on Father's petition for an abuse of discretion. In re Marriage of Friedman and Roels, 244 Ariz. 111, 120 ¶ 36 (2018). "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." A.R.S. § 25-409(E). Where, as here, the parents have competing views on visitation, "the respective presumptions effectively and necessarily cancel each other out." In re Marriage of Friedman, 244 Ariz. at 117 ¶ 22. Thus, the court must assess "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.
5. If one or both of the child's parents are deceased, the benefit in maintaining an extended family relationship.A.R.S. § 25-409(E).
¶9 Here, the court's ruling analyzed the relevant factors in conducting its best interests analysis as required. Among its findings, the court cited the therapist's letter summarized above, the progress T.H. and Father have made after limiting Grandparents' visits and Grandparents' tendency to overreact when they did not get what they want, including calling Father hundreds of times.
¶10 Grandparents do not claim the court's findings were inadequate or constitute legal error. Instead, they argue Father "failed to provide any credible evidence or testimony" that modifying their visits was in T.H.'s best interests. In essence, Grandparents seek to reweigh credibility and conflicting evidence on appeal, something this court will not do. See Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009) (explaining this court's "duty on review does not include re-weighing conflicting evidence or redetermining the preponderance of the evidence."). Instead, this court defers to the superior court's weighing of credibility and conflicting evidence. Gutierrez v. Fox, 242 Ariz. 259, 272 ¶ 49 (App. 2017). Given this deference owed to the superior court's findings, Grandparents have shown no abuse of discretion. Nor have they shown the superior court's decision was not supported by substantial evidence. Hurd, 223 Ariz. at 52 ¶ 16 ("Even though conflicting evidence may exist, we affirm the trial court's ruling if substantial evidence supports it.").
¶11 Finally, Grandparents cite Little v. Little for the proposition that the superior court abuses its discretion "when the record, viewed in the light most favorable to upholding the trial court's decision, is 'devoid of competent evidence to support' the decision." 193 Ariz. 518, 520 ¶ 5 (1999) (citation omitted). Although an accurate statement of the law, Grandparents have shown no such abuse of discretion here. Viewed in the light most favorable to upholding the superior court's decision, the evidence received at the hearing properly supports the court's findings. Recognizing the court received conflicting evidence, Grandparents have shown no abuse of discretion in the resulting decision.
CONCLUSION
¶12 The order modifying Grandparents' third-party visitation is affirmed.