Graville v. Dodge

• Decision Date: 28 January 1999
• Docket Number: No. 1 CA-CV 98-0104, No. 1 CA-CV 98-0150.
• Parties: In re the Matter of Kathryn Lucille GRAVILLE and Donald Graville, Petitioners-Appellees, Cross Appellants, v. Douglas Paul DODGE, Respondent-Appellant, Cross Appellee.
• Court: Arizona Court of Appeals

985 P.2d 604

195 Ariz. 119

In re the Matter of Kathryn Lucille GRAVILLE and Donald Graville, Petitioners-Appellees, Cross Appellants, v. Douglas Paul DODGE, Respondent-Appellant, Cross Appellee.

Nos. -0104, -0150.

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

January 28, 1999.

Review Denied September 21, 1999.

Stanley David Murray, P.C. by Stanley, David Murray, Phoenix, for Petitioners-Appellees/Cross Appellants.

Roberts, Rowley & Smith, Ltd. by Paul S. Rowley, Scott F. Gibson, Mesa, Attorneys for Respondent-Appellant/Cross Appellee.

OPINION

RYAN, Judge.

¶ 1 The court below awarded the maternal grandparents visitation with the children of their deceased daughter. On appeal, the children's father challenges the constitutionality of the grandparent visitation statute, Arizona Revised Statutes Annotated ("A.R.S.") section 25-409. He also argues that the amount of visitation awarded is excessive and that the findings made by the trial court do not support the award. We conclude that the statute is constitutional and affirm the court's visitation order with modification.

I.

¶ 2 In March 1988, David Dodge ("Dodge") married Gayla Graville, the daughter of Donald and Lucille Graville ("the Gravilles"). The couple had two daughters; Victoria ("Tori") was born August 2, 1989, and Kacy was born August 10, 1990.

¶ 3 During the marriage, Dodge served in the United States Army. Because of his military assignments, Gayla and the children were unable to live with him at times. Between August 1989 and October 1991, Gayla, Tori, and Kacy lived either with the Gravilles or with Gayla's sister, Cheryl, except for about eight months during which they lived in Germany with Dodge. In October 1991, Dodge returned to the United States and the family lived together in Maryland. ¶ 4 Shortly after Kacy was born, doctors diagnosed Gayla with kidney disease. In the summer of 1992, Gayla was hospitalized for an extended time in Washington, D.C. During that summer, Lucille and Dodge's sister, Nancy, both spent time in Maryland to care for the girls while Gayla was in the hospital. In August 1992, Tori and Kacy returned to Phoenix with Lucille and lived with the Gravilles. Gayla joined them in October.

¶ 5 Dodge and Gayla were divorced in May 1993. Gayla was awarded custody of the children, and they continued to live with the Gravilles.

¶ 6 Gayla married Joe Robinson in August 1993. She and the girls lived in Avondale with Robinson from August 1993 until March 1995, when they moved back to the Gravilles' home. Gayla and Robinson were divorced in May 1995.

¶ 7 During the summer of 1995, Gayla and the girls moved to the home of Dodge's parents, where they lived for about two months. On September 16, 1995, Gayla had a seizure and was hospitalized. After her release from the hospital, she and the girls returned to the Gravilles' home where they lived until Gayla's death on August 26, 1996.

¶ 8 After Gayla died, Tori and Kacy moved to the home of Dodge and his new wife, Andrea.¹ The girls visited the Gravilles three or four times after Gayla's death, including a visit on August 30, 1996, the day of Gayla's funeral. Dodge stated that the girls had a "very nasty attitude" toward him and Andrea and that they were hard to control after they visited with the Gravilles. He believed the Gravilles were openly criticizing his decisions concerning which school and church the girls attended. Dodge also stated that Tori had nightmares about being taken away by the Graville family. He believed that the Gravilles drank alcohol and smoked in their home and was concerned about the effects of those habits on his daughters. He was also concerned about what he described as a "pantsing" incident in which Donald allegedly pulled down Tori's pants at a reception following Gayla's funeral.

¶ 9 For these reasons, in mid-September 1996, Dodge informed the Gravilles that he had decided to discontinue their visitation with the girls for a time. He felt it was in the best interests of his daughters to suspend visitation indefinitely "until they got settled down." Despite intervention by third parties who urged resolution of the visitation dispute, Dodge refused to allow the Gravilles to visit with the girls.

¶ 10 In early 1997, the Gravilles filed a petition seeking visitation with Tori and Kacy. The case went to trial in September 1997.

¶ 11 Before trial, the court appointed Dr. Marlene Joy to evaluate whether it was in the children's best interests to have visitation with the Gravilles. She testified that the girls wanted and needed to have a relationship with their grandparents and their maternal family. She recommended that visitation begin immediately in public places to allay Dodge's objections to the Gravilles' home environment. Dr. Joy noted that the Gravilles and some of Gayla's other relatives had been with the girls on almost a daily basis for several years and had been vital influences in the girls' lives. She stated that a severance of their relationship with their maternal grandparents likely would be detrimental to the girls' well-being.

¶ 12 Lucille testified that she had not smoked in more than a year and had not consumed alcohol in more than three years. Donald testified that he did not smoke around his grandchildren, and he smoked outside. They both denied telling Dodge that they had pulled Tori's pants down. Three witnesses testified concerning the good character of Lucille and Donald and their abilities to work with children.

¶ 13 The trial court granted the Gravilles visitation with their granddaughters for four to eight hours twice a month, two days during Christmas break, and a three-day weekend during the summer. The court denied Dodge's request to stay enforcement of the order.² The court also denied the Gravilles' request for an award of their attorneys' fees. ¶ 14 Dodge appealed from the visitation order and from a separate order awarding the Gravilles costs of $2,496.50. The Gravilles cross-appealed from the denial of their request for an award of attorneys' fees.

II.

A.

¶ 15 Dodge initially argues that the grandparent visitation statute is unconstitutional because it interferes with a parent's fundamental right to exercise custody and control over the parent's minor child. He asserts that the state may not interfere with this fundamental right unless there is evidence indicating that the children will be harmed if the state does not interfere.

¶ 16 The Gravilles respond that even though parents have a fundamental right to raise their children as they choose, the state may impose reasonable regulations that do not substantially interfere with that right. They also note that the state's parens patriae power to act in the best interests of a child may override a parent's fundamental right to raise the child. They assert that Arizona's grandparent visitation statute demonstrates a compelling state interest in protecting the best interests of children.

¶ 17 We presume a statute to be constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions. Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). The party asserting that a statute is unconstitutional has the burden to demonstrate that it is. Tucson Elec. Power Co. v. Apache County, 185 Ariz. 5, 11, 912 P.2d 9, 15 (App. 1995). We review de novo a challenge to the constitutionality of a statute. Little v. All Phoenix S. Community Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App.1995).

¶ 18 Under the common law, grandparents had no legal rights to visitation with their grandchildren. Sands v. Sands, 157 Ariz. 322, 323, 757 P.2d 126, 127 (App.1988). However, all fifty states have adopted grandparent visitation statutes. See Michael v. Hertzler, 900 P.2d 1144, 1151-53 (Wyo.1995)

(appendix A listing state statutes). In 1983, the Arizona legislature enacted a grandparent visitation statute, now at A.R.S. section 25-409. Laws 1983, Ch. 109, § 1. In relevant part, the statute provides:

A. The superior court may grant the grandparents of the child reasonable visitation rights to the child during his minority on a finding that the visitation rights would be in the best interests of the child and ... the following [is] true:

* * * *

2. A parent of the child has been deceased... for at least three months.

* * * *

C. In determining the child's best interests the court shall consider 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 in seeking visitation.

3. The motivation of the person denying 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 dead, the benefit in maintaining an extended family relationship.

* * * *

F. All visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption.... This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.

¶ 19 Dodge correctly points out that parents have a constitutionally protected right under the Fourteenth Amendment to raise their children as they see fit. See, e.g., Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ("freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("custody, care and nurture of the child reside first in the parents"); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (liberty interest guaranteed by the ...