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Pyle v. Bennett

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 27, 2018
No. 2 CA-CV 2017-0179 (Ariz. Ct. App. Jun. 27, 2018)

Opinion

No. 2 CA-CV 2017-0179

06-27-2018

DEVIN A. PYLE AND JENNIFER VOGEL, Petitioners/Appellees, v. PATIENCE E. BENNETT, Respondent/Appellant.

COUNSEL Devin Pyle, Sierra Vista In Propria Persona Jennifer Vogel, Sierra Vista In Propria Persona Bays Law PC, Sierra Vista By P. Randall Bays Counsel for Respondent/Appellant


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Cochise County
No. DO201500200
The Honorable Charles A. Irwin, Judge

AFFIRMED

COUNSEL Devin Pyle, Sierra Vista
In Propria Persona Jennifer Vogel, Sierra Vista
In Propria Persona Bays Law PC, Sierra Vista
By P. Randall Bays
Counsel for Respondent/Appellant

MEMORANDUM DECISION

Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:

¶1 Patience Bennett appeals the trial court's August 2, 2017 order granting Jennifer Vogel grandparent visitation in excess of what Bennett offered and believed was in the best interest of her minor child, D.B. For the reasons that follow, we affirm.

In her opening brief, Bennett challenges the trial court's later decision denying her petition to relocate to South Carolina with D.B. That decision, however, is not listed in her notice of appeal, as required by Rule 8(c)(3), Ariz. R. Civ. App. P. We lack jurisdiction to review matters not contained in the notice appeal, Lee v. Lee, 133 Ariz. 118, 124 (App. 1982), and, accordingly, we will not further address the court's denial of her petition to relocate.

Factual and Procedural Background

¶2 Patience Bennett and Devin Pyle are the unmarried, natural parents of minor child D.B. In 2015, shortly after D.B. was born, Pyle filed a paternity petition pursuant to A.R.S. § 25-806. As a result of that petition, the trial court designated Bennett as D.B.'s primary residential caretaker, but awarded Pyle visitation. Pyle exercised his parenting time with D.B. in the home of his mother, Jennifer Vogel. Vogel also maintained a relationship with D.B., and, until a dispute with Bennett, exercised visitation with D.B. while Pyle was attending school in California.

¶3 In 2017, Vogel filed a petition pursuant to A.R.S. § 25-409, seeking grandparent visitation with D.B. while Pyle was in California. Her petition sought visitation with D.B. during the times Pyle would have otherwise exercised his parenting time, including two days per week to be exercised at her home. In her response to the petition, Bennett asked that Vogel's petition be denied in its entirety. On the same day she filed her response, Bennett also filed a petition to modify legal decision making, parenting time, and child support, and to relocate with D.B. to South Carolina.

¶4 After the trial court ordered a hearing on Vogel's petition for grandparent visitation, Bennett filed a pretrial statement proposing Vogel be awarded "[s]upervised visits twice per month for two to three hours per day, scheduled around Mother's work schedule and grandmother's schedule, by Facetime, Skype or a similar video-type communication." Bennett also proposed Vogel be awarded supervised visitation in South Carolina, where Bennett intended to relocate, with one week's written notice. Pyle did not file a response to the petition.

¶5 At a contested hearing, attended by Bennett and Vogel, Vogel presented evidence of her involvement in D.B.'s life. Pyle did not appear at the hearing. The trial court granted Vogel visitation for three hours at a time, two times per week, in a preliminary, oral ruling. The court stated it was "well aware of the rebuttable presumption that mother is a fit parent and would act in her child's best interests," and noted that it had given Bennett's position "some special weight as that term has been bandied about by the courts and talked about in decisions." It concluded that Vogel had rebutted that presumption, and that Bennett's position regarding visitation was not actually based on D.B.'s best interests.

¶6 After the hearing on grandparent visitation, but before the court had entered a written ruling, Pyle filed a pretrial statement in connection with Bennett's pending petition to modify legal decision making, parenting time, and child support, and to relocate with D.B. Pyle asserted he was residing in Sierra Vista, and indicated he was living with Vogel. He also asserted Vogel had "established a close bond" with D.B.

¶7 After Pyle filed his pretrial statement, the trial court issued a written ruling granting Vogel grandparent visitation, which awarded Vogel the same visitation as in its earlier oral ruling. The court noted that in the time since the hearing, Pyle had moved back to Arizona and was living with Vogel. The court also pointed out that Bennett and Pyle's positions on grandparent visitation were diametrically opposed, implying that Bennett's position was essentially opposing grandparent visitation altogether. And while Pyle did not appear at the hearing on grandparent visitation or file a written response to Vogel's petition, the court concluded, "the circumstantial evidence presented in this hearing and past hearings support the fact that [Pyle] favored his mother's continued interaction with [D.B.] during his absence." The court noted that prior jurisprudence did not provide any guidance for circumstances where two fit parents disagreed on grandparent visitation, but concluded that in such circumstances the opinion of each parent should be given equal weight.

While this case was pending on appeal, our supreme court decided In re Marriage of Friedman & Roels, 792 Ariz. Adv. Rep. 13 (June 8, 2018), which provides guidance for circumstances where two fit parents have differing views regarding visitation.

¶8 The court ultimately concluded that terminating grandparent visitation impaired D.B.'s best interests. It further noted that "[t]he grandparent visitation time periods ordered by the Court correspond to time periods [Pyle] will be exercising his parenting time." Bennett filed a timely notice of appeal from that decision, which we have jurisdiction to review pursuant to A.R.S. § 12-2101(A)(1).

Discussion

¶9 Bennett first argues the trial court erred by awarding grandparent visitation in excess of what she had offered in her pretrial statement. She argues the trial court mistakenly concluded her position and Pyle's were diametrically opposed, and asserts the trial court therefore should have given greater deference to her position as a fit parent. We review the decision to award visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, ¶ 6 (App. 2001).

¶10 Pursuant to § 25-409(C), "a person other than a legal parent may petition the superior court for visitation with a child." The court may award visitation "on a finding that the visitation is in the child's bests interests," and "[t]he child was born out of wedlock and the child's legal parents are not married to each other at the time the petition was filed." Id. In deciding whether to grant visitation, however, "the court shall give special weight to the legal parents' opinion of what serves their child's best interests." § 25-409(E). "[W]hen two legal parents disagree about whether visitation is in their child's best interests, both parents' opinions are entitled to special weight under § 25-409(E)." In re Marriage of Friedman & Roels, 792 Ariz. Adv. Rep. 13, ¶ 1 (June 8, 2018). "[U]nder those circumstances, neither parent is entitled to a presumption in his or her favor and the parents' conflicting opinions must give way to the court's finding on whether visitation is in the child's best interests." Id.

¶11 Although Pyle did not file a response to Vogel's petition and did not testify at the hearing on grandparent visitation, we agree with the trial court that there was circumstantial evidence to establish Pyle was in favor of grandparent visitation. Indeed, for much of D.B.'s life, Pyle exercised his parenting time in Vogel's home, often with Vogel present. And when Pyle moved to California for school, Vogel continued visiting with D.B., including Pyle in the visitation through video communication software. Moreover, Pyle submitted a pretrial statement stating that he was living in Vogel's home, and that Vogel and D.B. had established a close bond.

¶12 The record also supports the trial court's conclusion that Bennett was, in essence, opposed to grandparent visitation. Indeed, Bennett's original response opposed grandparent visitation entirely. Her modified position, reflected in her pretrial statement, offered only supervised video visitation two times per month for two to three hours at a time, and in-person visitation, out-of-state, with one week's notice. This type of contact arguably would have been so limited that it would have failed to foster any meaningful relationship between Vogel and her grandson. See McGovern, 201 Ariz. 172, ¶ 23.

¶13 Under these circumstances, the opinions of Pyle and Bennett differed, and both were entitled to be given special weight. See Friedman, 792 Ariz. Adv. Rep. 13, ¶ 1. But, their conflicting positions were required to give way to the court's finding on whether grandparent visitation was in D.B.'s best interests. Id. The trial court conducted a best-interests analysis, finding that continued contact with Vogel was in D.B.'s best interests. As required, the court's best-interests determination considered the factors enumerated in § 25-409(E). Ultimately, the court awarded grandparent visitation based on this finding. Bennett has not established the court abused its discretion.

¶14 Bennett also asserts the trial court abused its discretion by "refusing to adjust its grandparent visitation order" when Pyle moved back to Arizona, apparently in violation of § 25-409(F), which states: "If logistically possible and appropriate, the court shall order visitation by a grandparent . . . if the child is residing or spending time with the parent through whom the grandparent . . . claims a right of access to the child." Bennett seems to argue that the court ignored Pyle's presence in Arizona and that it could not have awarded Vogel visitation outside of Pyle's scheduled parenting time. We disagree.

¶15 The trial court clearly contemplated Pyle's presence in Arizona, explicitly noting his return in its ruling. The court also noted that Vogel's visitation would occur while Pyle would be exercising his scheduled parenting time. Once the court was aware D.B. would be spending time with Pyle, the language of § 25-409(F) required the court to order grandparent visitation to the extent it was logistically possible and appropriate. Bennett does not identify how Vogel's visitation, which would typically occur during Pyle's parenting time, would be logistically impossible. And, other than disagreeing with the court's decision to award grandparent visitation, which we have addressed above, Bennett has not established Vogel's visitation would be inappropriate.

Bennett also asserts that, upon remand, she is entitled to a change of judge pursuant to Rule 42.1(e), Ariz. R. Civ. P. Because we affirm, we do not consider this argument. --------

Disposition

¶16 The trial court's order of August 2, 2017, granting Vogel visitation is affirmed. Appellees request an award of attorney fees on appeal pursuant to A.R.S. § 25-324. However, they are not entitled to attorney fees at this stage of the litigation because they are self-represented. See Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 56 (App. 1983), disagreed with on other grounds by Am. Power Prods., Inc. v. CSK Auto, Inc., 242 Ariz. 364, ¶¶ 13-14 (2017). As prevailing parties, appellees are awarded their costs on appeal upon compliance with Rule 21, Ariz. R. Civ. App. P.


Summaries of

Pyle v. Bennett

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 27, 2018
No. 2 CA-CV 2017-0179 (Ariz. Ct. App. Jun. 27, 2018)
Case details for

Pyle v. Bennett

Case Details

Full title:DEVIN A. PYLE AND JENNIFER VOGEL, Petitioners/Appellees, v. PATIENCE E…

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Jun 27, 2018

Citations

No. 2 CA-CV 2017-0179 (Ariz. Ct. App. Jun. 27, 2018)