Riepe v. Riepe

• Decision Date: 25 May 2004
• Docket Number: No. 1 CA-CV 03-0184.,1 CA-CV 03-0184.
• Citation: 91 P.3d 312,208 Ariz. 90
• Parties: Janette Rae Smith RIEPE, Petitioner-Appellant, v. Brandy Jo RIEPE, Respondent-Appellee.
• Court: Arizona Court of Appeals

91 P.3d 312

208 Ariz. 90

Janette Rae Smith RIEPE, Petitioner-Appellant, v. Brandy Jo RIEPE, Respondent-Appellee.

No. -0184.

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

May 25, 2004.

As Amended June 29, 2004.

Hufford, Horstman, Mongini, Parnell & McCarthy, P.C., by Philip (Jay) McCarthy, Jr., Flagstaff, Attorneys for Petitioner-Appellant.

Consuelo A. Brennan, Flagstaff, Attorney for Respondent-Appellee.

OPINION

TIMMER, Judge.

¶ 1 Can the superior court award in loco parentis visitation to a widowed step-mother pursuant to Arizona Revised Statutes ("A.R.S.") section 25-415(C) (2000) when the stepchild enjoyed good relationships with both legal parents before the father's death and the child is currently parented by his legal mother? We address this issue in Janette Rae Smith Riepe's ("Stepmother") appeal from the denial of her petition for visitation with her eight-year-old stepson, Cody, filed pursuant to § 25-415(C). For the reasons that follow, we hold that § 25-415(C) authorizes the court to award reasonable visitation under such circumstances if the factors set forth in that provision are otherwise satisfied. Because the court misinterpreted § 25-415 by requiring Stepmother to prove that Cody's relationship with her was equal to or superior to the relationship he shared with his legal parents, we reverse and remand with instructions for the court to assess the evidence presented in support of and in opposition to the petition using the correct interpretation of § 25-415.

BACKGROUND

¶ 2 Cody's legal parents,¹ Brandy Jo Riepe ("Mother") and David Allen Riepe ("Father"), were divorced in 2000. The parents shared joint custody, and Father was the primary residential parent. Mother had parenting time every other weekend, one evening a week, and extended time over school vacations. Father began dating Stepmother in May 1999. Father and Cody moved in with Stepmother and her three sons in January 2000. Father and Stepmother married in May 2001. Tragically, Father died in a traffic accident in November 2001.

¶ 3 Prior to and during her marriage with Father, Stepmother spent a significant amount of time with Cody. One of Stepmother's sons and Cody attended the same school, and she transported them to and from school. She fed Cody, was involved in his classroom, and cared for him both before and after she married Father. All evidence shows that Stepmother was a very loving and involved person in Cody's life during the time she was with Father. During this time, Mother also was involved with Cody and paid child support to Father. ¶ 4 After Father died, Cody began living with Mother. Mother did not allow contact between Stepmother and Cody, and Stepmother therefore filed a petition for in loco parentis visitation pursuant to A.R.S. § 25-415(C). After holding an evidentiary hearing on Stepmother's petition and reviewing memoranda from both parties, the superior court found that Stepmother had failed to carry her burden of proving that she stood in loco parentis to the child. Specifically, the court found as follows:

[Stepmother] has shown that she was a caring and supportive step-parent and that Cody did bond to her. However, throughout Cody's and [Stepmother's] relationship, and while Cody's father was alive, Cody's natural mother and father fulfilled the rights and responsibilities of, parents while [Stepmother] played a supportive role to her husband['s] role of father to Cody. Although Cody may have referred to [Stepmother] as "mom", Cody seems to embrace those who show him love and support and brings them into his "family" using terms of familial relationship, such as aunt and uncle, despite the lack of a blood relationship. While he may use the term "mom" to show affection and to give value to his relationship with [Stepmother], the Court is not persuaded that this is indicia that he views [Stepmother] as mother in the same sense that he views his natural mother.

[Stepmother] cared for and supported Cody. However, based upon the evidence presented, the Court cannot factually conclude that she stood in loco parentis to Cody as defined by A.R.S. § 25-415(G)(1).

The court therefore denied the petition and this appeal followed.

STANDARD OF REVIEW

¶ 5 We review de novo the superior court's interpretation and application of A.R.S. § 25-415. Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App.2002). 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." Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803 P.2d 464, 469 (App.1990).

DISCUSSION

¶ 6 Stepmother first argues that the superior court incorrectly interpreted A.R.S. § 25-415 to require her to prove that her relationship with Cody was the same as or superior to his relationship with Mother. Section 25-415(C) authorizes the court to grant reasonable visitation rights to "a person who stands in loco parentis to a child" upon a finding, among others, that visitation is in the child's best interests.² Section 25-415(G)(1) defines one "in loco parentis" as "a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time."

¶ 7 Stepmother contends that the court imposed an additional burden not prescribed by § 25-415 by requiring her to persuade the court that Cody viewed Stepmother "as mother in the same sense as he views his natural mother." According to Stepmother, this burden effectively requires an individual seeking in loco parentis visitation to prove that the child's relationship with that individual is equivalent to or superior to his or her relationship with the parent(s) rather than simply proving that the child treated the individual "as a parent" and that they enjoyed "a meaningful parental relationship" for a substantial period of time, as set forth in § 25-415(G)(1).

¶ 8 Mother counters that the court correctly interpreted § 25-415(G)(1) to require Stepmother to show that her relationship with Cody was the same as or superior to his relationship with Mother and Father. Relying on dictionary definitions of "in loco parentis," she asserts that § 25-415(G)(1) required Stepmother to show that she stood "in the place of" a natural parent in order to receive visitation rights. Because Mother and Father fulfilled the rights and obligations of parents to Cody before Father's death, Mother contends that Stepmother could not have "stood in the place" of either parent.

¶ 9 We disagree with Mother's position. This court looks to commonly used definitions of statutory terms only when the legislature has not ascribed a particular meaning to such terms. State v. Wise, 137 Ariz. 468, 470 n. 3, 671 P.2d 909, 911 n. 3 (1983) (acknowledging that unless legislature clearly expresses intent to give term a special meaning, court gives words used in statutes their plain and ordinary meaning, which can be gleaned from dictionaries). Here, because the legislature has provided a definition of in loco parentis in § 25-415(G)(1), we must look no further than that definition when deciding what is required to establish in loco parentis status.

¶ 10 Section 25-415(G)(1) does not require a person seeking in loco parentis visitation to establish that he or she has a parental relationship with a child that replaces that child's relationship with a legal parent. Similarly, the petitioning party need not show that his or her relationship with the child is superior to the child's relationship with one or both legal parents. Rather, to establish in loco parentis status, a non-parent must prove that the child (1) treated that person as a parent and (2) formed a meaningful parental relationship with that person for a substantial period of time. A.R.S. § 25-415(G)(1). Assuming that the remaining factors set forth in § 25-415(C) are satisfied, including a finding that visitation is in the child's best interests, the court can order reasonable visitation. Thus, as Mother acknowledged in oral argument before this court, the superior court can grant in loco parentis visitation to a petitioning party even if the child maintains a meaningful parental relationship with his or her legal parents. With these principles in mind, we turn to the superior court's application of § 25-415(G)(1) in its ruling.

¶ 11 The superior court found that Stepmother failed to prove both that Cody had treated her as a parent and that she had formed a meaningful parental relationship with Cody for a substantial period of time. In explaining this finding, the court stated that before Father's death, he and Mother fulfilled the rights and responsibilities of parents while Stepmother had played a supportive role to Father. The court further concluded that although Cody called Stepmother "mom," this reference did not indicate that he viewed Stepmother "as mother in the same sense that he views his natural mother."

¶ 12 Although somewhat unclear, it appears the court adopted Mother's position that Stepmother was required to prove that she stood in the place of either Father or Mother and could not establish in loco parentis status if Cody had enjoyed parental relationships with his legal parents. Because § 25-415(G)(1) does not require such a showing, we reverse the judgment and remand to the superior court for further proceedings. Specifically, in deciding whether Stepmother stands in loco parentis with Cody, the court should consider only whether Cody views Stepmother as a parent, and whether they have formed a meaningful parental relationship, which has endured for a substantial period of time. If the court then decides that Stepmother does not stand in loco parentis with Cody, it must deny the petition. If the court decides that Stepmother has achieved this status, the court must then consider whether Stepmother should have reasonable visitation rights after applying the factors set forth in A.R.S. § 25-415(C), including whether...