Opinion
No. 1 CA-CV 20-0366 FC
04-27-2021
SHEILAH M. WILSON, FRANK E. BORWELL and MARION BELL, Petitioners/Appellants/Cross-Appellees, v. RUSSELL R. MOKER and SANDRA MOKER, Respondents/Appellees/Cross-Appellants.
COUNSEL Ellen Seaborne and Associates PC, Goodyear By Ellen M. Seaborne Counsel for Petitioners/Appellants/Cross-Appellees The Ledbetter Law Firm PLC, Cottonwood By James E. Ledbetter, William Macdonald Counsel for Respondents/Appellees/Cross-Appellants
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. V1300DO201980370
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Ellen Seaborne and Associates PC, Goodyear
By Ellen M. Seaborne
Counsel for Petitioners/Appellants/Cross-Appellees
The Ledbetter Law Firm PLC, Cottonwood
By James E. Ledbetter, William Macdonald
Counsel for Respondents/Appellees/Cross-Appellants
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge David B. Gass and Judge Michael J. Brown joined.
WEINZWEIG, Judge:
¶1 Sheilah Wilson and Frank Borwell ("Petitioners") challenge the superior court's denial of their request for third-party visitation with B.C. In their cross-appeal, Russell and Sandra Moker ("Respondents") challenge the superior court's denial of their request for attorney fees. We affirm the superior court on both issues.
FACTS AND PROCEDURAL BACKGROUND
¶2 This case is about B.C., born in July 2008. Respondents are B.C.'s maternal grandfather and step-grandmother. Petitioners are B.C.'s maternal grandmother and step-grandfather.
¶3 In July 2019, the superior court terminated the parental rights of B.C.'s natural parents, and Respondents adopted B.C. Around four months later, Petitioners petitioned the superior court for permission to visit B.C. under A.R.S. § 25-409, which governs third-party visitation rights. The superior court later dismissed the petition, reasoning that Petitioners did not meet the requirements of § 25-409(C). Respondents unsuccessfully moved for their attorney fees. Petitioners and Respondents timely appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
DISCUSSION
¶4 We review a denial of visitation for an abuse of discretion, Graville v. Dodge, 195 Ariz. 119, 128, ¶ 38 (App. 1999), but review issues of statutory interpretation de novo, Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7 (App. 2002).
Third-Party Visitation Rights
¶5 Section 25-409(C) enables someone "other than a legal parent" to seek and secure visitation rights if "visitation is in the child's best interests" and "any of the following is true":
1. One of the legal parents is deceased or has been missing at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
2. The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.
3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.
¶6 The superior court found that Petitioners met none of the three preconditions and dismissed the verified petition for third-party visitation. We agree.
¶7 Respondents became B.C.'s legal parents when they adopted him in July 2019. See A.R.S. § 8-117(A) (conferring upon adoptive parents "all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent thereafter exist between the adopted child and the adoptive parent as though the child were born to the adoptive parent in lawful wedlock"). From there, Petitioners could not meet the requirements of § 25-409(C) because (1) neither Respondent is deceased or missing, (2) Respondents were married when Petitioners filed their petition, and (3) Respondents remain married.
¶8 Petitioners counter that B.C.'s best interests should control, but the plain language of § 25-409(C) requires that Petitioners meet one of the above preconditions and that visitation be in the child's best interest. We find no error.
Attorney Fees
¶9 Respondents cross appeal the superior court's denial of their request for attorney fees. The superior court may award attorney fees under A.R.S. § 25-324 "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." We review the court's denial for an abuse of discretion. Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011).
¶10 We find no abuse of discretion. The record includes little or no information about the disparity of financial resources between Petitioners and Respondents. See Appels-Meehan v. Appels, 167 Ariz. 182, 185 (App. 1991) (record was "inadequate to make a determination as to which of the parties, if either, should bear the costs of litigating this matter"). Nor did the parties take unreasonable positions.
¶11 Petitioners and Respondents also seek their attorney fees on appeal under A.R.S. § 25-324. Because we too lack information about the parties' financial resources, we deny the requests for attorney fees in our discretion. The parties must bear their own attorney fees on appeal. As the prevailing party, however, Respondents may recover costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶12 We affirm.