McGovern v. McGovern

• Citation: 201 Ariz. 172,33 P.3d 506
• Decision Date: 11 October 2001
• Docket Number: No. 2 CA-CV 01-0016.,2 CA-CV 01-0016.
• Parties: Montie McGOVERN and Ann McGovern, Petitioners/Appellants, v. Tammy McGOVERN, Respondent/Appellee.
• Court: Court of Appeals of Arizona

33 P.3d 506

201 Ariz. 172

Montie McGOVERN and Ann McGovern, Petitioners/Appellants, v. Tammy McGOVERN, Respondent/Appellee.

No. -0016.

Court of Appeals of Arizona, Division 2, Department A.

October 11, 2001.

Cheryl K. Copperstone, Tucson, for Petitioners/Appellants.

Roberts & Rowley, Ltd., By Paul S. Rowley, Mesa, for Respondent/Appellee.

OPINION

PELANDER, J.

¶ 1 Petitioners/appellants Montie and Ann McGovern filed an action under Arizona's grandparents' visitation statute, A.R.S. § 25-409, to obtain court-ordered visitation with their granddaughter, C. Their daughter, respondent/appellee Tammy McGovern, opposed the petition. After a two-day trial, the trial court granted the grandparents' petition in April 2000. In August, however, the court granted the mother's motion for reconsideration and vacated its earlier order in light of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), decided after the court's initial ruling. The trial court did not conduct any further proceedings, but rather, left visitation to the sole discretion of the mother. This appeal by the grandparents followed. We affirm in part, vacate in part, and remand the case for further proceedings.

BACKGROUND AND PROCEDURAL HISTORY

¶ 2 The trial court's August 2000 ruling succinctly summarizes the undisputed factual background:

This case involves a five-year old child [C.], her mother Tammy McGovern, and her maternal grandparents, Mont[i]e and Ann McGovern. [C.]'s mother and father were not married at the time of her birth on August 25, 1994. The father's parental rights were terminated, and Tammy McGovern moved into the guest house at her parent[s'] home in Tubac with the then two-week-old child. Mother and child remained there until January, 1999.

The grandparents provided significant financial support for the mother and child while they resided together. When the mother returned to work in December, 1995, the grandmother provided child care. The grandparents fed, clothed and housed the child. She accompanied them on extended summer vacations and attended church and church school with them. Although the relationship between the mother and her parents was strained, the child was clearly loved and adored by all of them.

The mother moved out of her parents' home in January, 1999, and relocated to Tucson, where she continued to work and to attend [college]. She lives in a home which is centrally located and within walking distance of [C.]'s school. Many neighbors and friends form a supportive network for both the mother and child. The child is thriving in school ... [and] has been involved in extracurricular activities.... Her kinder garten teacher, who has more than fifteen years of experience in the field, reported that [C.] was a happy, well-adjusted child who did not appear to be suffering from depression or anxiety.

At the time the Court entered the order [granting visitation] in this case, the child was visiting with her grandparents once a week for six hours, on either Saturday or Sunday, pursuant to a temporary court order entered on May 7, 1999.

¶ 3 It is undisputed that, over the four and one-half years the mother and C. lived with the grandparents, a significant and loving bond developed between the grandparents and C. The grandparents' contact with C. was daily and constant. When the mother and C. relocated to Tucson, the grandparents felt a great personal loss and were also concerned about the effect this disruption of contact would have on their granddaughter. They immediately sought to establish regular visitation with C., and the mother assured them she would allow that. The record, however, reflects that, except for two or three weekend visits in early 1999, no visitation occurred for several months until the stipulated pendente lite visitation order in May, issued as a result of the grandparents' petition for court-ordered visitation. The record also reflects that the mother did not offer any additional visitation to the grandparents, other than some make-up time, from the time the temporary order was issued in May 1999 until the trial in March 2000.

¶ 4 The parties, witnesses for both sides, and a court-appointed psychologist testified at trial. In April 2000, the trial court ruled in pertinent part:

THE COURT FINDS that visitation with the grandparents is clearly in the best interest of the child. There is a long, caring relationship between them. The grandparents' motivation for visitation is primarily because of their love of the child and their wish to remain in her life. The mother's motivation in denying the requested visitation is primarily because of her desire to act as an independent parent without undue influence or involvement from others. THE COURT DOES FIND, however, that the quantity of visitation time requested is excessive, may have an adverse impact on the child's customary activities, and is greater than the minimal intrusion contemplated by Graville [v. Dodge, 195 Ariz. 119, 985 P.2d 604 (App.1999)].

IT IS THEREFORE ORDERED that the following visitation shall be awarded to the maternal grandparents, beginning April 15, 2000:

1. One weekend per month, from Friday after school through Sunday, until one hour before bedtime.

2. The first four days and overnights of Christmas vacation with return to the mother, at the latest, by December 23 at 5:00 p.m.

3. The first two days and overnights of Spring break.

4. Two weeks of summer vacation. If there is some overlap with regularly scheduled visitation, there shall be no make-up visitation without the mother's agreement.

¶ 5 The mother later moved for reconsideration and for a declaratory judgment based on Troxel. In a thorough, well-reasoned order, the trial court granted the motion for reconsideration and vacated its April order, ruling as follows:

The Court finds that its application of the grandparent visitation statute in this case violated the mother's fundamental right to parent her child without state interference as guaranteed by the Due Process Clause of the Fourteenth Amendment. See Troxel, [530 U.S. 57,

] 120 S.Ct. 2054 (2000). There was no proof that the mother was unfit. She should have been presumed to be a fit parent whose decisions regarding her child were in the child's best interest. Once the matter proceeded to trial, the burden of proof should have been on the grandparents to show that the mother's decision was not in the child's best interest. The mother's decision regarding visitation should have been given special weight. Finally, the fact that the mother had offered limited visitation to the grandparents should have been a factor in this Court's decision. For the reasons set forth,

IT IS THEREFORE ORDERED granting the motion for reconsideration and vacating the order for visitation entered on April 10, 2000. The issue of grandparent visitation is left in the discretion of the mother.

DISCUSSION

¶ 6 We review for an abuse of discretion a trial court's decision to grant or deny visitation. Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d 818, 823 (1970); Graville v. Dodge, 195 Ariz. 119, ¶ 37, 985 P.2d 604, ¶ 37 (App.1999) (Dodge I). That same standard of review applies to a trial court's ruling on a motion for reconsideration. Cf. Kirby v. Rosell, 133 Ariz. 42, 46, 648 P.2d 1048, 1052 (App.1982)

(grant or denial of motion for new trial within sound discretion of trial court that will not be upset absent clear abuse of discretion); Modla v. Parker, 17 Ariz.App. 54, 56, 495 P.2d 494, 496 (1972) (order setting aside final judgment will not be disturbed absent clear abuse of trial court's discretion). This appeal, however, raises issues of statutory interpretation and constitutional law, which we review de novo. Ramirez v. Health Partners of Southern Arizona, 193 Ariz. 325, ¶ 6, 972 P.2d 658, ¶ 6 (App.1998).

¶ 7 The grandparents challenge the trial court's ultimate ruling, contending the court's original order granting visitation pursuant to § 25-409 did not offend any constitutional due process constraints set forth in Troxel. The mother counters that Troxel compelled reversal of the first order because, in granting court-ordered visitation against her wishes, the trial court had failed to apply certain constitutionally mandated safeguards later established in Troxel. The first issue, therefore, is whether the statute, as applied in the trial court's original order, contravened Troxel by "violat[ing] the mother's fundamental [constitutional] right to parent her child without state interference," as the court ultimately ruled. And, if so, does that conclusion mandate the trial court's further ruling that "[t]he issue of grandparent visitation is left in the discretion of the mother"? Our uncertainty about the specific meaning of that latter ruling and the lack of any majority opinion in Troxel complicate the resolution of these issues.

¶ 8 Section 25-409 provides in pertinent part:

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 any of the following [three conditions]¹ are true:

....

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.

¶ 9 "[P]arents have a constitutionally protected right under the Fourteenth Amendment to raise their children as they see fit." Dodge I, 195 Ariz. 119, ¶ 19, 985 P.2d 604, ¶ 19; see also Troxel, 530 U.S. at 65-66...