Opinion
2 CA-CV 2023-0124-FC
02-02-2024
Andrew Michael Willars, Appellant, v. Reva Beard, Mel Beard, Dawn Hatch, and Aaron Hatch, Intervenors/Appellees.
Andrew Michael Willars, Scottsdale In Propria Persona Reva Beard, Mel Beard, Dawn Hatch, and Aaron Hatch, Forest Lakes In Propria Personae
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2015052198 The Honorable Andrew J. Russell, Judge
Andrew Michael Willars, Scottsdale In Propria Persona
Reva Beard, Mel Beard, Dawn Hatch, and Aaron Hatch, Forest Lakes In Propria Personae
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Andrew Willars appeals from the superior court's order granting third-party visitation with his minor children, E.W. and A.W., to members of the children's extended maternal family. Willars contends the court misapplied the law and its conclusions are unsupported by the evidence. He also challenges the court's denial of his request for attorney fees. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the record in the light most favorable to upholding the superior court's visitation order. In re Marriage of Friedman & Roels, 244 Ariz. 111, ¶ 2 (2018). Willars is the father of E.W. and A.W., who were born in 2011 and 2012 respectively. Willars and the children's mother, Alyssa, divorced in 2016. The parents had joint legal decision-making authority and shared parenting time until Alyssa's death in November 2021.
¶3 In July 2022, members of Alyssa's family-as intervenors in the dissolution matter-petitioned the superior court for third-party visitation with the children. The intervenors consist of the children's maternal grandparents, Dawn and Aaron Hatch, and maternal great-grandparents, Reva and Mel Beard. In the petition, the intervenors claimed they had not seen the children since Alyssa's funeral in November 2021 because Willars had denied them any meaningful contact. The intervenors argued that they have meaningful relationships with the children and had provided them with care and stability since their births. They further argued that isolating the children from family members after losing their mother is "significantly detrimental" and "not in the children's best interests." In addition to their request for visitation, the intervenors sought attorney fees and costs as a result of Willars "maintaining an unreasonable position" requiring them to file a petition. Willars maintained that no visitation should be awarded to the intervenors and also requested attorney fees and costs.
Dawn Hatch is Alyssa's mother, but her husband Aaron is not biologically related. Mel and Reva Beard are Dawn's parents.
¶4 After a visitation hearing the superior court concluded that "some limited visitation with Intervenors is in the Children's best interests." The court awarded the intervenors visitation for nine hours every third Saturday, five consecutive days in the month of June, and fifteen minutes of telephonic or virtual contact per week. The court found no significant difference in the parties' financial resources and concluded that both sides "acted unreasonably and pursued unreasonable positions in this case." As such, the court denied both parties' requests for attorney fees and costs. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(2).
Discussion
I. Third-Party Visitation
¶5 Willars presents several arguments as to why the superior court's award of visitation to the intervenors constituted error. He claims that the court not only made errors of law but also that the evidence does not support the court's best-interests finding and award of visitation. We review questions of law de novo, see Egan v. Fridlund-Horne, 221 Ariz. 229, ¶ 8 (App. 2009), but review a court's best-interests finding for abuse of discretion, Marriage of Friedman, 244 Ariz. 111, ¶ 36.
A. Burden of proof
¶6 Willars claims the superior court improperly placed the burden of proof on him rather than the intervenors. In support, he points to the court's language in its order that "Father presented no compelling evidence to support his denial of visitation to the Intervenors other than Mr. Beard" and "no evidence supports Father's desire to keep the other Intervenors away." Willars also highlights the court's statements that "no evidence suggests that the Children could be in danger if allowed to spend some time with the Intervenors" and "[n]o evidence supported the complete elimination of the Intervenors from the Children's lives." He claims these findings "show that the burden of proof was placed on [him] to not only prove that he was acting in his children's best interest, but also to meet a higher evidentiary burden by providing 'compelling' evidence . . . contrary to Arizona law." The intervenors counter that these statements do not show improper burden shifting.
¶7 To grant visitation with a minor child to a person other than a legal parent, the superior court must find "the visitation is in the child's best interests" and that one of four enumerated requirements is met under A.R.S. § 25-409(C). In making its best-interests determination, the court must consider "all relevant factors including:"
The court determined that two of the enumerated requirements had been met: the parents' marriage had been dissolved for over three months and one of the children's legal parents is deceased. See § 25-409(C)(1), (3). Willars does not challenge these findings on appeal.
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.§ 25-409(E). The nonparent seeking visitation "has the burden of rebutting the presumption that a decision made by a fit parent to deny or limit visitation was made in the child[ren]'s best interest[s]." McGovern v. McGovern, 201 Ariz. 172, ¶ 17 (App. 2001) (quoting Crafton v. Gibson, 752 N.E.2d 78, 97 (Ind.Ct.App. 2001)).
¶8 Here, the best-interests burden rested with the intervenors, and nothing in the superior court's analysis suggests that it improperly shifted this burden to Willars. Although the court commented on the lack of evidence supporting Willars's position to deny visitation, these comments were generally made in the context of analyzing the above-listed factors. Specifically, the court made these comments when it analyzed Willars's motivation in denying visitation, an enumerated statutory factor. See § 25-409(E)(3). Furthermore, whether the evidence suggests visitation could endanger the children is relevant to whether the visitation is in the children's best interests. Reading the court's order in context, we disagree that it improperly shifted the burden of proof. To the extent Willars contends the intervenors failed to meet their burden, as we explain below, we disagree.
The court's statement that "[n]o evidence supported the complete elimination of the Intervenors from the Children's lives" was made in evaluating the reasonableness of the parties' positions for purposes of attorney fees.
B. Presumption that Willars acted in the children's best interests
¶9 Willars next argues the superior court failed to apply the presumption that he was acting in his children's best interests when he denied the intervenors access to the children. He claims that the "absence of the court's calculus as to how it applied the presumption" and how the intervenors rebutted it, in addition to the "inversion of the burden of proof," shows the court did not apply the presumption.
¶10 As noted above, "the court should recognize and apply a presumption that a fit parent acts in his or her child's best interest in decisions concerning . . . grandparent visitation." McGovern, 201 Ariz. 172, ¶ 17; see also Marriage of Friedman, 244 Ariz. 111, ¶ 16. However, this presumption is not evidence to be weighed by the superior court, as Willars seems to suggest. See McGovern, 201 Ariz. 172, ¶ 17 (citing In re $315,900 U.S. Currency, 183 Ariz. 208, 212-13 n.7 (App. 1995)). Instead, the presumption that a fit parent acts in his children's best interests merely establishes the evidentiary starting point. See id. (presumption never weighed as evidence and only relates to which party first produces evidence and burden of proof).
¶11 We are unpersuaded by Willars's argument that the superior court's analysis was so deficient in detail that it must have applied an improper presumption. Beyond the purported lack of detail in the court's ruling, Willars points to no other specific part of the record that would lead us to conclude that the court misapplied the law. See Hart v. Hart, 220 Ariz. 183, ¶ 18 (App. 2009) (we presume superior court knows and applies correct standard unless rebutted by the record). The court acknowledged that it "must keep certain constitutionally safeguarded principles in mind," including the presumption that a fit parent acts in his children's best interests. And to the extent Willars argues the court could not have concluded that visitation with the intervenors was in the children's best interests had it applied the presumption, we again note that a presumption is not evidence to be weighed. See McGovern, 201 Ariz. 172, ¶ 17 (citing $315,900 U.S. Currency, 183 Ariz. at 212-13 n.7).
C. Special weight to Willars's opinion
¶12 Willars next claims that the superior court failed to give "unqualified special weight" to his opinion on whether visitation is appropriate pursuant to § 25-409(E). In its ruling, the court states:
[N]o evidence suggests that Father is not a fit parent for the Children. The Court therefore must give "some special weight" to Father's position regarding visitation. While the Court does not agree with Father's blanket denial of visitation, the Court believes that giving "some special weight" to Father's position supports reducing the amount of visitation requested, limiting regular visitation to daytime hours only, and restricting overnight visitation to summer break.
Willars argues that the court's application of only "some special weight" to his opinion constitutes an error of law because under § 25-409(E) courts have no discretion as to how much special weight to give a legal parent's opinion.
¶13 When making a decision regarding third-party visitation, § 25-409(E) requires a court to give "special weight to the legal parents' opinion of what serves their child's best interests." The term "special weight" is not defined, see A.R.S. § 25-401, but our supreme court has rejected the view that it is such weight that the legal parents' decision controls unless the nonparent demonstrates harm to the child. Marriage of Friedman, 244 Ariz. 111, ¶ 19 (rejecting substantial impairment test from Goodman v. Forsen, 239 Ariz. 110, ¶ 13 (App. 2016)). Rather, "special weight" is to be read in the context of the cases from which our legislature presumably adopted the language. Id. ¶ 20; see also Troxel v. Granville, 530 U.S. 57, 70 (2000); McGovern, 201 Ariz. 172, ¶ 18. Those cases, however, provide little guidance beyond noting the issue would be developed on a case-by-case basis and instructing that the weight requirement helps avoid third-party visitation orders "'based solely on the judge's determination of the child's best interests' or on the judge's 'mere disagreement' with a fit parent's choice." McGovern, 201 Ariz. 172, ¶¶ 18, 19 (quoting Troxel, 530 U.S. at 67-68).
¶14 We are not persuaded that the superior court here failed to comply with the requirements of § 25-409(E) by stating it gave "some special weight" to Willars's opinion on visitation rather than unqualified "special weight." As Willars notes, our supreme court has stated § 25-409(E) "does not contain any varying gradations of 'special weight,' nor is it qualified by any requirement other than 'legal parent' status." Marriage of Friedman, 244 Ariz. 111, ¶ 21. However, that language must be read in the context of the ultimate issue in Friedman. There, the court held that "when two legal parents disagree about whether visitation is in their child's best interests, both parents' opinions are entitled to special weight," and "under those circumstances, neither parent is entitled to a presumption in his or her favor." Id. ¶ 1. By noting that the statutory language does not contain any qualification of "special weight," the court was merely reinforcing that the same "special weight" is to be given to the opinion of each legal parent such that conflicting opinions "necessarily cancel each other out." Id. ¶¶ 1, 22; see also Borja v. Borja, 254 Ariz. 309, ¶ 12 (App. 2022). Friedman does not establish an objective threshold amount of "special weight" that a court must give to a legal parent's opinion to be in compliance with § 25-409(E).
¶15 Furthermore, in giving "some special weight" to Willars's opinion on visitation, the superior court was borrowing the language of McGovern, 201 Ariz. 172, ¶ 18. McGovern instructed that superior courts "must consider and give 'some special weight' to a fit parent's determination of whether visitation is in the child's best interest." Id. (quoting Troxel, 530 U.S. at 70). Although McGovern was decided before the adoption of the current statutory language, 2012 Ariz. Sess. Laws, ch. 309, § 20, our supreme court has stated that it has "no reason to believe that the legislature intended 'special weight' for § 25-409 purposes to be any different than in Troxel or McGovern." Marriage of Friedman, 244 Ariz. 111, ¶ 20. The superior court's use of the phrase "some special weight" was, at most, an imprecise choice of language, and we cannot conclude that this shows a misapplication of § 25-409(E).
D. Special weight to Alyssa's opinion
¶16 Willars also argues the superior court erred by not giving special weight to Alyssa's opposition to visitation, which she had expressed in text messages to Willars before her death. He claims that nothing in § 25-409 limits the application of special weight to only the opinions of living legal parents. The intervenors counter that the court was only required to give special weight to Willars's opinion since he was the one denying them visitation.
¶17 At the visitation hearing, text messages from between 2019 and 2021 were presented in which Willars and Alyssa had discussed the intervenors' relationship with the children. In the conversations, Alyssa had stated that the intervenors "don't respect any of the boundaries" she sets and that they "do whatever they want" regarding the children. Alyssa also expressed concern that the children have "all sorts of problems" with the intervenors. In a message from Alyssa to Willars in October 2021, while discussing some conflict that had purportedly occurred, she stated:
It's low even for my mother. I can't stand my family and I don't want them in me or the girl's lives. They've been treating me so horribly it's worse than it was growing up. That's all there is to say about it. It's nothing new.
¶18 In the superior court's ruling, it considered Alyssa's messages to Willars, finding that they support the intervenors' assertion that there had been an "estrangement" between them and the children in the two years before Alyssa's death. It reasoned that although Alyssa "express[ed] her desire that the children never spend time with the Intervenors," she "did not completely bar the Intervenors from seeing the Children even during that period of estrangement." Additionally, at the conclusion of the visitation hearing, the court stated:
[O]f course, there is the text before [Alyssa] passed, you know, about struggling with her family again. I don't see that as her expressing position of, I don't want the children to ever see the-my side of the family again. I suspect if she were here now, she might have gone back the other way. I don't know. We'll obviously never know that.
The court therefore viewed Alyssa's statements in the messages "as more of a 'spur of the moment' frustration with her extended family rather than an expression of her position on visitation." The court did not state that it gave Alyssa's text messages special weight.
¶19 As stated above, § 25-409(E) requires the superior court to give "special weight to the legal parents' opinion of what serves their child's best interests." A "legal parent" is "a biological or adoptive parent whose parental rights have not been terminated." A.R.S. § 25-401(4); see also Marriage of Friedman, 244 Ariz. 111, ¶ 32 (only factor relevant to whether special weight must be given is whether parental rights have been terminated).
¶20 Even assuming without deciding that a deceased parent continues to be a "legal parent" for the purposes of § 25-409(E), we cannot conclude the superior court erred by not giving special weight to Alyssa's text messages. We agree with the court that a distinction may properly be drawn between Alyssa's text messages and "an opinion on what serves [the children's] best interests." § 25-409(E). Alyssa sent the text approximately nine months before the intervenors petitioned for visitation with the children. The context also suggests that the text was in response to-or was at the very least related to-some ongoing conflict between Alyssa and the intervenors. In his opening brief, Willars argues that "[t]he court is bound by the evidence, and cannot speculate as to what Mother may or may not have done." However, he fails to recognize that Alyssa's opinion regarding this proceeding is necessarily speculative, and because there is reasonable evidence that her opinion may have differed in the context of a petition for visitation, the court did not err by declining to apply special weight here. See Vincent v. Nelson, 238 Ariz. 150, ¶ 18 (App. 2015) (superior court in best position to resolve conflicting evidence, and appellate courts generally defer to those findings).
E. Consideration of the historical relationship between Willars and Alyssa
¶21 Willars argues that the superior court erred by considering evidence of his "historical relationship" with Alyssa. He contends that such evidence does not fall under any of the enumerated factors pursuant to § 25-409(E), and therefore is not relevant to a determination on third-party visitation. The intervenors counter that evidence of the parents' relationship over the years provided necessary context for other evidence and was proper.
¶22 In interpreting a statute, we first look to its language, and if that language is clear, we apply the text as written without resorting to other rules of construction. Gutierrez v. Fox, 242 Ariz. 259, ¶ 28 (App. 2017). As noted above, a superior court making a decision on third-party visitation must determine whether that visitation is in the children's best interests, and shall "consider all relevant factors including" the listed enumerated factors. § 25-409(C), (E). Relevant evidence is that evidence which "has any tendency to make a fact more or less probable than it would be without the evidence" and that fact "is of consequence in determining the action." Ariz. R. Evid. 401.
¶23 We are unpersuaded that the superior court erred by considering Willars's prior relationship with Alyssa. Contrary to Willars's argument that the plain language of § 25-409(E) barred the court from considering anything outside of the listed factors, the use of the word "including" clearly contemplates consideration of other, unenumerated factors, so long as they are "relevant." We are therefore unpersuaded that the court misapplied § 25-409(E). To the extent Willars argues evidence of his relationship with Alyssa was irrelevant, he does not challenge any specific evidence in the record or point to where he raised the argument below. Nor does he develop his argument on appeal in any meaningful way. The argument is therefore waived. See Ariz. R. Civ. App. P. 13(a)(7); Cook v. Losnegard, 228 Ariz. 202, n.3 (App. 2011) (argument not raised below waived on appeal); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (failure to comply with Rule 13(a) can constitute waiver of argument).
F. Competent evidence supporting visitation
¶24 Willars argues that the intervenors failed to meet their burden of showing that visitation is in the children's best interests. "Because the decision to award visitation rests within the family court's discretion upon finding that visitation is in the child's best interests, we will not disturb the court's decision absent an abuse of discretion in making the best-interests finding." Marriage of Friedman, 244 Ariz. 111, ¶ 36. An abuse of discretion exists if "the record is devoid of competent evidence to support the court's decision." Borja, 254 Ariz. 309, ¶ 10 (quoting Woyton v. Ward, 247 Ariz. 529, ¶ 5 (App. 2019)).
¶25 There was testimony at the visitation hearing that the intervenors had been a part of the children's lives since their births. The children's grandmother, Dawn, testified that the children were "integrated" into her family and grew up alongside her own children who were similar in age. The children's great-grandmother, Reva, stated that after Alyssa and Willars's divorce, she and her husband Mel interacted with the children for "40 to 75 percent" of Alyssa's parenting time. Also, between March 2016 and the time Alyssa remarried in 2017, the children and Alyssa lived with Reva and Mel in their home. Dawn and Reva both expressed their love for the children and stated that their priority is to be a part of their lives.
¶26 The evidence also showed significant conflict between Alyssa and Willars after their divorce. Reva testified that "[t]here was constant strife" and "a constant fear of threats being made." Messages were presented in which Willars called Alyssa expletives and threatened that "[a]s long as your grandfather is near the kids you won't be seeing them." There was also evidence that the intervenors were involved in the post-divorce conflict. Reva testified that they were sometimes involved in the child exchanges between the parents, and at one point, Reva and Mel had a restraining order against Willars, which Alyssa asked them to quash so they could be around the children.
¶27 Based on this evidence, the superior court found that "[t]he Children's relationship with the Intervenors appears to have followed their Mother's relationship with the Intervenors." And although that relationship "rose and fell throughout Mother's life," the children nevertheless had a long relationship with the intervenors, and they "offer the only opportunity for the Children to have a relationship with their Mother's family." The court also found that the intervenors' intentions regarding visitation stems from their love for the children and their "desire to remain in contact with the offspring of their deceased daughter/granddaughter."
¶28 As to Willars denying visitation, the superior court concluded that his motivation may stem from a "long-held distrust and dislike" of the intervenors. In making these findings, the court acknowledged and weighed the October 2021 message sent by Alyssa describing her displeasure with the intervenors. The court also acknowledged evidence regarding an incident where Mel had yelled profanity at Willars and another incident where Mel had delivered a background check on Willars to the parents of Willars's girlfriend. The court reasoned that it could appreciate Willars's desire to keep Mel away from the children, but not any of the other intervenors. Ultimately, the court concluded that some limited visitation with the intervenors was in the children's best interests.
¶29 Willars challenges the factual conclusions drawn by the superior court, highlighting contrary evidence and generally pointing to evidence supporting his position. Specifically, Willars points to Alyssa's text messages describing her frustration with the intervenors, the fact that the intervenors' relationship with the children was intermittent at times, the incidents with Mel, and his own testimony regarding conflict with the intervenors. But we do not reweigh conflicting evidence on appeal or determine the credibility of witnesses. Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 20 (App. 2019). Rather, our review is limited to the question of whether competent evidence supports the conclusion that visitation with the intervenors is in the children's best interests. See Borja, 254 Ariz. 309, ¶ 15. Here, despite the fact that different conclusions may reasonably be drawn from it, the evidence is competent to support a finding that visitation with the intervenors is in the children's best interests, and the court did not abuse its discretion.
II. Denial of Willars's Request for Attorney Fees and Costs
¶30 Lastly, Willars argues the superior court erred by denying his request for attorney fees and costs pursuant to A.R.S. § 25-324(A). He claims the evidence shows a significant disparity in financial resources between himself and the intervenors, and he challenges the court's conclusions regarding the reasonableness of the parties' respective positions.
¶31 After considering the parties' financial resources and the reasonableness of their positions, the superior court has the discretion to determine whether an award of fees under the statute is appropriate. Ferrill v. Ferrill, 253 Ariz. 393, ¶ 25 (App. 2022); see also § 25-324(A) (court "may order a party to pay a reasonable amount to the other party for the costs and expenses" (emphasis added)). We review a decision on whether to award attorney fees under § 25-324(A) for an abuse of discretion. Lehn, 246 Ariz. 277, ¶ 29.
¶32 Here, the parties presented evidence regarding their relative financial resources. Considering this evidence, the superior court determined that despite the intervenors having more financial resources than Willars and despite there being more intervenors, the difference was "not significant." The court also determined that both sides had "acted unreasonably and pursued unreasonable positions." Willars's argument amounts to no more than a disagreement with these conclusions, and because we will not substitute our discretion with that of the superior court, we find no error. See Ferrill, 253 Ariz. 393, ¶ 25.
III. Request for Attorney Fees and Costs on Appeal
¶33 On appeal, both parties again request an award of attorney fees and costs pursuant to § 25-324. The intervenors also request fees and costs on the basis that the present appeal is frivolous. See Ariz. R. Civ. App. P. 25. Because both parties are self-represented on appeal, neither is entitled to an award of attorney fees arising therefrom. See Motley v. Simmons, ___ Ariz.___, ¶ 20, 537 P.3d 807, 813 (App. 2023). However, as the prevailing party, the intervenors are entitled to their costs on appeal upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-342.
Disposition
¶34 For the foregoing reasons, we affirm.