Egan v. Fridlund-Horne

• Decision Date: 14 April 2009
• Docket Number: No. 1 CA-SA 08-0240.,1 CA-SA 08-0240.
• Citation: 221 Ariz. 229,211 P.3d 1213
• Parties: Michelle Anne EGAN, Petitioner, v. The Honorable Elaine FRIDLUND-HORNE, Judge of the Superior Court of the State of Arizona, in and for the County of Coconino, Respondent Judge, Therese Marie Hochmuth, Real Party in Interest.
• Court: Arizona Court of Appeals

211 P.3d 1213

221 Ariz. 229

Michelle Anne EGAN, Petitioner, v. The Honorable Elaine FRIDLUND-HORNE, Judge of the Superior Court of the State of Arizona, in and for the County of Coconino, Respondent Judge, Therese Marie Hochmuth, Real Party in Interest.

No. 1 CA-SA 08-0240.

Court of Appeals of Arizona, Division 1, Department A.

April 14, 2009.

Bryon Middlebrook, PC by Bryon Middlebrook, Flagstaff, Attorney for Petitioner.

Mikkel Jordahl PC by Mikkel Jordahl, Flagstaff, Attorney for Real Party in Interest.

OPINION

BROWN, Judge.

¶ 1 This special action addresses questions of first impression relating to the superior court's decision to grant substantial visitation rights to a person standing in loco parentis under Arizona Revised Statutes ("A.R.S.") section 25-415(C) (2007). Because we conclude that the court failed to employ adequate procedural and evidentiary safeguards to protect the interests of the legal parent, we vacate the court's temporary order granting visitation rights and remand for further proceedings.

BACKGROUND¹

¶ 2 Michelle Egan and Therese Hochmuth were partners in a same-sex relationship for seventeen years. They agreed they wanted to have a child together and that Egan would give birth to the child. They made arrangements with a mutual friend to donate sperm, Egan was artificially inseminated, and the child was born in 2000. They jointly raised the child for seven years until their relationship ended in March 2007. At that point, they verbally agreed to alternate weeks with the child. In July, however, Egan expressed concern about the impact of the visitation schedule on the child and Hochmuth "reluctantly agreed" to reduced visitation because she "had no choice."² The revised schedule provided that Hochmuth would have visitation from Sunday through Thursday, every other week. Then in November, Egan unilaterally changed the schedule to Monday through Thursday every other week, and one month later, she further reduced visitation to Monday through Wednesday every other week.

¶ 3 Dissatisfied with the reduced visitation arrangement, Hochmuth filed a petition for "custody/visitation" under § 25-415(C). She alleged that she stood in loco parentis to the child based on her extensive involvement in raising her for seven years. She requested an order: (1) awarding significant visitation with the child; (2) requiring the parties to confer and agree on major life issues, including education, religion, and healthcare; (3) directing the parties to create and maintain reciprocal wills granting testamentary guardianship status to the other party; and (4) providing for ninety days' advance written notice of any intent by Egan to relocate the child. Egan moved to dismiss, contending that Hochmuth was not entitled to seek in loco parentis visitation rights because Egan had not denied Hochmuth the right to visit the child and therefore Egan's decision to allow some visitation must control.

¶ 4 Following briefing and argument, the superior court denied the motion to dismiss, relying in part on language from this court's decision in Thomas v. Thomas, 203 Ariz. 34, 49 P.3d 306 (App.2002), in which we stated that a nonparent could seek visitation with the child of her former same-sex partner. The superior court then scheduled an evidentiary hearing to determine temporary orders. At the hearing, the court accepted the parties' stipulation that Hochmuth met the in loco parentis definition set forth in A.R.S. § 25-415(G)(1).³ Hochmuth presented evidence about her extensive involvement in raising the child. Hochmuth testified that before the child started school, she cared for her at home while Egan worked as a teacher. When Egan could care for the child on evenings and weekends, Hochmuth worked outside the home. One of the child's teachers testified that both parties were actively engaged in the child's education, volunteering at school and attending parent-teacher conferences and other school activities. Hochmuth further testified about her desire for equal visitation and that, at a minimum, she wanted the court to enforce her "written agreement" with Egan.

¶ 5 Egan acknowledged that she had initially agreed to split time with the child equally and that the child was "doing great." Egan stated, however, that her daughter had an emotional breakdown in July 2007 and did not want to return to visit Hochmuth until "something" changed. Egan explained that her daughter was crying hysterically, chewing on a towel, and was not going to leave the house. Egan then discussed the situation with Hochmuth, who became very upset about reduced visitation. Egan testified that she further reduced visitation based on the child's desire to spend more time with Egan and her own opinion of what was in the child's best interest. In response to a question posed to her about returning to the equal visitation arrangement, Egan testified that she did not want to "put my kid through that again." On cross-examination, Egan acknowledged she had agreed in writing to a Sunday through Thursday, every-other-week visitation schedule in July 2007.

¶ 6 In its subsequent order, the superior court found that the parties were equally involved with the child's upbringing; that the child excelled in school, even after the separation of the parties; and that the only evidence of negative impact of the equal parenting time arrangement was Egan's testimony about the child's breakdown. The court again referred to the similarity of the Thomas case, noting this court's statement that a trial court has considerable discretion in awarding visitation. The court then granted Hochmuth temporary visitation rights "in accordance with the model parenting time plan for six to nine year old children, either, Plan C(l) or C(2)" and instructed the parties to determine which plan would work best for the child.⁴ Because the parties were unable to agree on a plan, the court entered a subsequent order adopting a visitation plan that divided the child's time equally between the parties, but also providing that she would not be away from Egan for more than five consecutive days.

¶ 7 Egan then filed this special action and requested a stay of the court's temporary visitation order. This court granted the stay request, ordering the parties to continue the Monday through Wednesday, every-other-week visitation schedule they had been following since December 2007. Following oral argument, we accepted jurisdiction and stated that this decision would follow.

JURISDICTION AND STANDARD OF REVIEW

¶ 8 Because the order entered in this case is a temporary order granting visitation rights,⁵ there is no adequate and speedy remedy by appeal. See Finck v. Superior Court, 177 Ariz. 417, 418, 868 P.2d 1000, 1001 (1993); Ariz. R.P. Spec. Actions 1(a). This is also a matter of statewide concern. See Ingram v. Shumway, 164 Ariz. 514, 516, 794 P.2d 147, 149 (1990). In our discretion, we accept jurisdiction. See Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268, 271, ¶ 12, 159 P.3d 578, 581 (App.2007). We review de novo the superior court's interpretation and application of statutory and constitutional provisions. Riepe v. Riepe, 208 Ariz. 90, 92, ¶ 5, 91 P.3d 312, 314 (App.2004). We are not bound by the court's conclusions of law "that combine both fact and law when there is an error as to the law." Id.

DISCUSSION

¶ 9 To obtain visitation rights with the child under Arizona law, Hochmuth was required to petition under § 25-415(C), which provides in part as follows: "The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of § 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests[.]" Based on the parties' stipulation, the superior court determined that Hochmuth stands in loco parentis to the child. Egan does not challenge that determination. Thus, the only issues before us relate to the court's decision to grant equal visitation rights to Hochmuth pursuant to § 25-415(C).

I. No Requirement to Show Denial of Visitation

¶ 10 Egan first argues that the superior court abused its discretion in awarding visitation rights because Hochmuth can only seek visitation rights if Egan has denied her the right to visit the child. She asserts that because she has allowed some visitation, and continues to do so, Hochmuth cannot seek additional visitation under § 25-415(C). Stated differently, Egan contends that a nonparent must show a complete denial of visitation, or the substantial equivalent, as a prerequisite to filing a petition under § 25-415(C).

¶ 11 This court addressed a similar issue in two prior decisions involving challenges to the constitutionality of the grandparent visitation statute, A.R.S. § 25-409 (2007). In Jackson v. Tangreen, the court stated that a petition for grandparent visitation was appropriate only if the grandparent had been denied visitation, not where it was "merely limited." 199 Ariz. 306, 310, ¶ 14, 18 P.3d 100, 104 (App.2000). A year later, in McGovern v. McGovern, 201 Ariz. 172, 179, ¶ 23, 33 P.3d 506, 513 (App.2001), the court again considered the rights of grandparents to seek visitation and determined that the language used in Jackson was dictum because the issue in that case involved a parent's decision to terminate visitation, not merely limit it. The McGovern court determined that neither § 25-409(C) nor any Arizona decision clearly imposes such a condition on grandparent visitation and concluded that "a parent's willingness to allow some visitation is but one factor to consider under § 25-409."⁶ Id. at ¶¶ 23-24.

¶ 12 We are persuaded by the analysis in McGovern, finding that neither § 25-415 nor § 25-409 requires a nonparent to establish a denial of visitation as a condition precedent to seeking in loco parentis visitation rights. As such, we reject the argument that Hochmuth's petition should have...