Higgins v. Higgins

• Citation: 194 Ariz. 266,981 P.2d 134
• Decision Date: 27 May 1999
• Docket Number: No. 1 CA-CV 98-0284.,1 CA-CV 98-0284.
• Parties: In re the Marriage of Frank HIGGINS, Petitioner-Appellee, v. Sara Deane HIGGINS, Respondent-Appellant.
• Court: Arizona Court of Appeals

981 P.2d 134

194 Ariz. 266

194 Ariz. 266

In re the Marriage of Frank HIGGINS, Petitioner-Appellee, v. Sara Deane HIGGINS, Respondent-Appellant.

No. 1 CA-CV 98-0284.

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

May 27, 1999.

Ayers & Brown, P.C., by Harvey S. Brown, Phoenix, for petitioner-appellee.

Iacovina and Kayler, by Susan J. Kayler, Scottsdale, for respondent-appellant.

OPINION

NOYES, Judge.

¶ 1 Sara Deane Higgins ("Mother") appeals from a dissolution decree in which she and Frank Higgins ("Father") were awarded joint custody of two daughters, Father was awarded in loco parentis visitation with Mother's son, and Father was made the residential parent of all three children. We conclude that the court had jurisdiction to award Father in loco parentis visitation with Mother's son. We also conclude that the court abused its discretion by basing its residential parent and visitation decisions on the fact that Mother lived with a boyfriend. Because the record contains no evidence to support the court's conclusion that Mother's adulterous cohabitation had "a very serious and harmful detrimental effect upon the children," we reverse and remand for new trial on all issues relating to the children. The decree is otherwise affirmed.

I.

¶ 2 Mother and Father were married in 1991. They had one daughter out of wedlock in 1989, and a second daughter in 1993. Also living with them was Mother's son, Michael, who was born in 1985. Michael thought that Father was his real father, but Mother and Father knew otherwise. The parties and the three children lived together until the parties separated in August 1995. In October 1995, Mother and the children moved in with Steven, a divorced man whom she had met at work. They were still living together two and a half years later, when this case came to trial.

¶ 3 In August 1996, Father filed a petition for dissolution of marriage. At that time, he was a 30-year-old service manager and Mother was a 29-year-old delicatessen manager/trainee. The petition avowed that the marriage had produced two children (the daughters). Father requested custody. Mother's response avowed that the children had lived primarily with her since the parties' separation, and she requested custody. Neither the petition nor the response mentioned Michael.

¶ 4 When Father petitioned for temporary custody of the daughters, Mother requested temporary joint custody, with her as primary residential parent and Father having reasonable visitation. After a hearing in November 1996, Commissioner Linda H. Miles awarded the parties temporary joint custody of the daughters, with Mother as primary residential parent and Father having weekend visitation. The order did not mention Michael, but Mother voluntarily granted Father the same visitation with Michael that the court granted him with the daughters.

¶ 5 As trial approached, Mother's counsel moved to withdraw because of Mother's lack of communication and failure to pay fees. The court granted the motion. At the February 1998 trial, Father had counsel and Mother did not.

¶ 6 Five witnesses testified at the half-day trial: Mother, her boyfriend, Father, his mother, and a co-worker of Father's. The record reflects that the parties were competent parents, that Father was managing his life better than Mother was hers, and that all three children were doing fine. Mother asked that she and Father have joint custody and that the temporary custody and visitation arrangements become permanent for all three children. Father asked to be primary residential parent of the daughters and to have in loco parentis visitation with Michael. The record supports the request of each party. Ordinarily, we would defer to the court's exercise of discretion on such a record. But this case became extraordinary when the court expressly based its residential parent and visitation decisions on a finding that Mother's adultery and cohabitation were seriously harmful to the children. This record contains no evidence to support that finding.

¶ 7 The only testimony regarding the harmful effects of adultery and cohabitation on these children was elicited from Father's mother by his counsel:

Q. Mrs. Higgins, you believe something about the best interests of the children; is that correct?

A. Yes, I do.

Q. Okay. What do you believe?

A. I think that the children being in a home where their mother is sleeping with another man isn't correct, not proper. And I don't believe that—

Q. Okay. And you feel that that is inappropriate?

A. Yes, sir, I do.

¶ 8 The court ruled from the bench. It rejected Mother's request to continue as primary residential parent, it designated Father as primary residential parent of the daughters, it ordered that the children be with Mother for a 72-hour continuous period each week, to include the days she was off work, and it extended those orders to Michael. The court also ordered Mother to marry her boyfriend or evict him, if she wanted to see her children in her home:

It is a condition precedent to either parent having any of the children in his or her physical custody that there be no adult person of the opposite sex residing with that parent nor spending overnight with that parent while the children are in that parent's physical custody unless, that adult person of the opposite sex is related to that parent within the third degree of consanguinity or affinity.

What this means is that unless Mother marries—to illustrate, it applies to both parents. But to illustrate it, if Mother does not marry Steve Spencer, then she may not live with him while the children are there. And he may not spend overnight while they are there even during her access time, even though she is not the primary residential parent.

In other words, she will disqualify herself from having the children all 72 hours by having Steve Spencer there.

¶ 9 The court gave the following reasons for its decision:

It is appalling to the Court that Mother either ignores or is blind to the effect upon the children of her living in an adulterous relationship with Steve Spencer.

It is the opinion of the Court that this has a very serious and harmful detrimental effect upon the children. Adultery is a crime in Arizona, so is unlawful cohabitation. Never enforced, but it is a crime according to the statutes of this state. I say never enforced. Maybe it is on some occasions. But it is the opinion of the Court that this is a very serious factor pertaining to the well-being of the children.

The example that is set for them is very important.

¶ 10 While the court was still announcing the details of its decision, Mother asked for further explanation, and she disputed the testimony that she was "cold" to the children. The court again stressed how "very important" the adultery was to its decision:

MRS. HIGGINS: Excuse me. I don't understand how I can be losing residential custody of my children after two and a half years. I am not a cold mother and he knows it, and so does Father's mother. I have been very loving to those children.

....

THE COURT: I think you're putting too much emphasis on Grandmother's—

MRS. HIGGINS: No, I don't think that I am.

THE COURT: Let me finish. It isn't Father's mother's testimony that was the turning point.

....

THE COURT: I didn't make a finding that you're a cold mother.

MRS. HIGGINS: But—

THE COURT: If you would listen—

MRS. HIGGINS:—you find it appalling that I didn't say anything against it.

THE COURT: It's appalling that you live in adultery in their presence, yes, that is a very important factor.

MRS. HIGGINS: I have provided a home for those children for two and a half years. I have gave them love and support. I do not talk about their Father in front of them.

He does. He talks about the divorce. He talks about me. He talks about all of it in front of these small children. And I have kept it inside me and kept it inside me and not said anything. And that makes me cold because I don't want to emotionally disturb my children.

All three of those children love and care for Steve. And I am not a cold mother at all. And that is a flat out lie that you would say I have ever been ever cold to them.

THE COURT: Mother, don't thrash yourself on that point because it was not a significant point in the decision.

MRS. HIGGINS: Then what exactly was? The adultery? That makes me an unfit mother?

THE COURT: That was very important.

¶ 11 Mother filed a timely notice of appeal. She is now represented by counsel. Our jurisdiction is conferred by Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(B) (1994).

II.

¶ 12 Mother represented herself at trial. One who represents herself in civil litigation is given the same consideration on appeal as one who has been represented by counsel. She is held to the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer. See Smith v. Rabb, 95 Ariz. 49, 386 P.2d 649 (1963); Copper State Bank v. Saggio, 139 Ariz. 438, 679 P.2d 84 (App.1983).

A. In Loco Parentis Visitation

¶ 13 Mother now argues that the court lacked jurisdiction to grant Father visitation with Michael. She cites Finck v. Superior Court, 177 Ariz. 417, 868 P.2d 1000 (App.1993), approved in part, 179 Ariz. 404, 880 P.2d 624 (1994), for the proposition that, in a dissolution action, the court has jurisdiction only over children common to the parties. She argues that A.R.S. section 25-415 (Supp.1998), which was enacted in response to Finck, does not apply because Father filed no petition pursuant to that statute.

¶ 14 The court's joint custody order made Father the primary residential parent of "the two minor children of the parties." The court then extended this order to Michael by finding as follows: "Both parties intend that Father's relationship with Michael continue and that the custody and access orders of the Court which are made as to the two minor children the parties have in common shall also apply...