Hustrulid v. Stakebake

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

CHRISTOPHER HUSTRULID, Petitioner/Appellant,

v.

NICOLE STAKEBAKE, Respondent/Appellee.

No. 1 CA-CV 21-0073 FC
FILED 8-4-2022

Appeal from the Superior Court in Maricopa County
No. FC2020-051644
The Honorable Dawn M. Bergin, Judge (Retired)

SPECIAL ACTION JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

State 48 Law Firm, Scottsdale
By Robert Hendricks, D. Ladd Gustafson, Stephen Vincent
Counsel for Petitioner/Appellant

Burch & Cracchiolo PA, Phoenix
By Laura J. Meyer
Counsel for Respondent/Appellee
 HUSTRULID v. STAKEBAKE
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Christopher Hustrulid appeals the superior court’s dismissal
of his petition seeking third-party rights under A.R.S. § 25-409, including
joint legal decision-making, for his two minor children whom his sister
adopted after his parental rights were terminated. We lack jurisdiction over
Hustrulid’s appeal, but in our discretion, we treat it as a special action.
Because a court cannot grant third-party joint legal decision-making, and
given the need for clarification of other legal principles relating to § 25-409,
we accept jurisdiction and deny relief.

BACKGROUND

¶2 Hustrulid and Gloria Mears are the biological parents of two
minor children. Mears occasionally lived with Hustrulid and the children
until 2013. Hustrulid was the children’s primary parent until 2016, when
he was convicted of a drug-related felony and sentenced to prison for three
years. The parental rights of Hustrulid and Mears were terminated, and
Hustrulid’s sister, Nicole Stakebake (“Mother”), adopted them in March
2019.

¶3 Hustrulid had limited contact with the children during his
incarceration. Upon his release in 2019, he spent time with them, but the
parties dispute whether the visits were unsupervised. According to
Hustrulid, in March 2020, “after nearly a year of consistent visitations and
bonding,” Mother cut off all communication between him and the children
with no “explanation, justification, or warning.” He then petitioned for
third-party joint legal decision-making and placement under § 25-409(A),
and alternatively requested third-party visitation under § 25-409(C).

¶4 Section 25-409 states in relevant part:

A. [A] person other than a legal parent may petition the
superior court for legal decision-making authority or
placement of the child. The court shall summarily deny a

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Opinion of the Court

petition unless it finds that the petitioner’s initial pleading
establishes that all of the following are true:

1. The person filing the petition stands in loco parentis to the
child.

2. It would be significantly detrimental to the child to remain
or be placed in the care of either legal parent who wishes to
keep or acquire legal decision-making.

3. A court of competent jurisdiction has not entered or
approved an order concerning legal decision-making or
parenting time within one year before the person filed a
petition pursuant to this section, unless there is reason to
believe the child’s present environment may seriously
endanger the child’s physical, mental, moral or emotional
health.

4. One of the following applies:

(a) One of the legal parents is deceased.

(b) The child’s legal parents are not married to each other at
the time the petition is filed.

(c) A proceeding for dissolution of marriage or for legal
separation of the legal parents is pending at the time the
petition is filed.

B. Notwithstanding subsection A of this section, it is a
rebuttable presumption that awarding legal decision-making
to a legal parent serves the child’s best interests because of the
physical, psychological and emotional needs of the child to be
reared by a legal parent. A third party may rebut this
presumption only with proof showing by clear and
convincing evidence that awarding legal decision-making to
a legal parent is not consistent with the child’s best interests.

(Emphasis added.)

¶5 Mother moved to dismiss, asserting that because Hustrulid’s
petition failed to show that all four elements of § 25-409(A) were true, he
had no right to third-party joint legal decision-making or placement. She
also argued he was not entitled to third-party visitation because the

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Opinion of the Court

children, once adopted, were no longer considered born out of wedlock as
required by § 25-409(C)(2). See Sheets v. Mead, 238 Ariz. 55, 58, ¶¶ 13, 16
(App. 2015) (a child adopted before a third-party visitation petition is filed
is not born out of wedlock, and thus not eligible for third-party visitation).

¶6 After oral argument on the motion, the superior court
dismissed the request for third-party visitation. Concerning the four
elements required for third-party joint legal decision-making and
placement, the court found that Mother (the children’s legal parent), was
not married and thus § 25-409(A)(4)(b) was satisfied. The court determined
there were disputed factual issues as to the remaining elements of § 25-
409(A) as well as best interests under § 25-409(B). Finding that the petition
was not facially deficient, the court concluded that it must hold an
evidentiary hearing.

¶7 Later, however, the court ruled that it had applied an
incorrect standard in denying Mother’s motion to dismiss the petition for
third-party joint legal decision-making and placement. In a December 2020
order, the court explained it had applied Arizona Rule of Civil Procedure
(“Rule”) 12(b)(6) and had assumed it would have to permit Hustrulid to
put on evidence at the hearing to prove the significant detriment element
of § 25-409(A)(2). Upon further consideration, however, the court decided
that under Chapman v. Hopkins, it could not revisit the “significant
detriment” element at the upcoming evidentiary hearing, where the only
issue would be whether Hustrulid overcame the “rebuttable presumption
that ‘awarding legal decision-making to a legal parent serves the child’s
best interests.’” 243 Ariz. 236, 240–41, ¶¶ 17, 20 (App. 2017) (quoting A.R.S.
§ 25-409(B)). The court therefore dismissed without prejudice Hustrulid’s
petition because it lacked sufficient factual allegations to establish the
significant detriment element. Hustrulid then filed a notice of appeal.

¶8 After addressing additional matters raised by the parties, the
court further explained why it changed course and dismissed Hustrulid’s
petition, noting an inconsistency between Chapman and the language in
§ 25-409. The court also questioned whether and how trial judges should
apply the Rule 12(b)(6) standard to § 25-409(A), and what issues should be
set for hearing if a petition is not summarily denied.

DISCUSSION

A. Appellate Jurisdiction

¶9 We have an independent duty to determine whether we have
jurisdiction over this appeal. See Davis v. Cessna Aircraft Corp., 168 Ariz. 301,

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304 (App. 1991). Under A.R.S. § 12-2101(A)(1), a party may appeal a “final
judgment.” See also Davis, 168 Ariz. at 304 (“The general rule is that an
appeal lies only from a final judgment.”). The superior court’s December
2020 order summarily denied Hustrulid’s petition and dismissed it without
prejudice, which generally means it is not an appealable order. A dismissal
without prejudice is not a final judgment because it does not dispose of the
case on its merits or bar a litigant from re-filing. Canyon Ambulatory Surgery
Ctr. v. SCF Ariz., 225 Ariz. 414, 418–19, ¶ 14 (App. 2010). Here, the court
found that Hustrulid’s petition failed to state a claim under § 25-409(A) and
did not address the merits. Because Hustrulid, at least in theory, can re-file
his petition with additional facts, the dismissal order is neither final nor
appealable.

¶10 Even so, we exercise our discretion to treat Hustrulid’s appeal
as a special action because, in denying the petition, the superior court made
a detailed ruling explaining the legal standard on which it based its decision
and suggesting that this court provide further guidance on the application
of § 25-409. And Mother raised a valid legal defense to Hustrulid’s petition
for third-party joint legal decision-making and placement. Because this case
presents purely legal questions affecting important rights, including the
bests interests of minor children, and Hustrulid has no adequate remedy by
appeal, in our discretion we accept special action jurisdiction. See Grand v.
Nacchio, 214 Ariz. 9, 17–18, ¶¶ 20–22 (App. 2006).

B. Third-Party Joint Legal Decision-Making

¶11 Hustrulid repeats the superior court’s request that we clarify
the appropriate standard for addressing a motion to dismiss a petition for
third-party legal decision-making under § 25-409(A). He does not,
however, challenge the court’s dismissal of his request for third-party
visitation.

¶12 We review de novo the superior court’s interpretation and
application of § 25-409, as well as procedural rules. Chapman, 243 Ariz. at
240, ¶ 14. We interpret the language of a statute or rule in view of the entire
text, considering the context and related provisions. See Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019); State v. Hansen, 215 Ariz. 287, 289, ¶ 7 (2007)
(courts apply the same principles in interpreting statutes and rules). When
the language is ambiguous, we apply secondary principles of construction,
including “the effects and consequences of differing interpretations, and
the spirit and purpose of the statute.” Timothy B. v. Dep’t of Child Safety, 252
Ariz. 470, 474, ¶ 16 (2022).

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¶13 At the outset, we question how Hustrulid, who no longer has
any rights as a parent, could properly ask the superior court to grant him
any third-party rights to the children under § 25-409. See A.R.S. § 8-117(B)
(“On entry of the decree of adoption, the relationship of parent and child
between the adopted child and the persons who were the child’s parents
before entry of the decree of adoption is completely severed and all the legal
rights, privileges, duties, obligations and other legal consequences of the
relationship cease to exist, including the right of inheritance.”); A.R.S. § 8-
539 (“An order terminating the parent-child relationship shall divest the
parent and the child of all legal rights, privileges, duties and obligations
with respect to each other except the right of the child to inherit and support
from the parent.”). Allowing Hustrulid to petition for legal decision-
making and other third-party rights seems contrary to the plain language
of §§ 8-117 and 8-539. And permitting former parents to pursue recognition
of third-party rights concerning their former children would likely
discourage adoptive parents from allowing any type of relationship with
that individual, even if it were beneficial to the children, to avoid this type
of litigation.

¶14 However, nothing in the text of § 25-409 indicates that a
petitioner who was a parent but whose rights were terminated is
necessarily precluded from seeking court-approved rights relating to his or
her former child. See A.R.S. § 25-409(A) (“[A] person other than a legal
parent may petition the superior court for legal decision-making authority
or placement of the child.”); A.R.S. § 25-402(B)(2) (“[A] person other than a
parent” may request legal decision-making or parenting time, by filing a
petition for third party rights under § 25-409). Because Hustrulid’s parental
rights to the two children have been terminated, he is not their legal parent.
See A.R.S. § 25-401(4) (“‘Legal parent’ means a biological or adoptive parent
whose parental rights have not been terminated.”). If the legislature had
intended to preclude former parents like Hustrulid from being eligible to
seek third-party rights under § 25-409, presumably it would have done so.
Instead, the absence of such language suggests otherwise. Compare A.R.S.
§ 25-409(A) (“a person other than a legal parent may petition” for legal
decision-making authority or placement (emphasis added)), with Uniform
Nonparent Custody and Visitation Act § 3(d) (Unif. Law Comm’n 2021)
(“An individual whose parental rights concerning a child have been
terminated may not maintain a proceeding under this [act] concerning the
child.” (emphasis added)). Thus, because the statute did not preclude his
ability to seek such third-party rights, we turn to the merits of Hustrulid’s
petition.

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¶15 As a third party, Hustrulid sought joint legal decision-making
and placement under § 25-409(A). “‘Legal decision-making’ means the legal
right and responsibility to make all nonemergency legal decisions for a
child including those regarding education, health care, religious training
and personal care decisions.” A.R.S. § 25-401(3). “Placement” is not
statutorily defined, see § 25-401, and is referenced once in § 25-409(A) but
not at all in § 25-409(B). “Visitation” refers to “a schedule of time that occurs
with a child by someone other than a legal parent.” A.R.S. § 25-401(7). As
Hustrulid notes, the statute is “unclear how placement is decided, and [it]
appears to be incomplete in this respect.” Hustrulid framed his petition to
have increasing contact with the children as seeking shared placement or
parenting time, which appears to fall under § 25-409(C) (third-party
visitation). Regardless of what the legislature intended by referencing
“placement” rights in § 25-409(A), because Hustrulid does not argue that
his placement request should be analyzed separately from joint legal
decision-making, we need not address the issue further.

¶16 This court has previously held that courts cannot award joint
“custody” to a legal parent and a third party. Thomas v. Thomas, 203 Ariz.
34, 37, ¶¶ 17–18 (App. 2002).1 Although we interpreted an earlier version
of § 25-409,2 that version, like the current statute, included a rebuttable
presumption that awarding custody to a legal parent is in the child’s best
interests. Thomas, 203 Ariz. at 37, ¶ 16. A petitioner “can rebut that
presumption by showing ‘clear and convincing evidence that awarding
custody to a legal parent is not in the child’s best interests.’” Id. (citation
omitted). If the petitioner makes that showing, however, the result cannot
be an award of joint custody:

Either it is in the child’s best interest for a legal parent to have
custody or it is not. The court cannot reasonably find that it
is in the child’s best interest for a legal parent to have custody

1 The legislature changed the term “custody” to “legal decision-
making and parenting time” in 2012. Baker v. Meyer, 237 Ariz. 112, 114, ¶ 7
n.2 (App. 2015).

2 Thomas construed A.R.S. § 25-415 (2000), which governed in loco
parentis custody. 203 Ariz. at 36, ¶ 11. The statute was renumbered in 2012
as § 25-409. See 2012 Ariz. Sess. Laws ch. 309, §§ 20, 24. We refer solely to
§ 25-409 throughout this decision, noting differences in the versions when
relevant.

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and that it is also in the child’s best interest for a non-legal
parent to have custody.

Id. at ¶ 17.

¶17 Hustrulid argues it is not inconsistent to allege a significant
detriment if the children are in Mother’s sole care without his joint
involvement. He urges us to “overturn” Thomas, asserting it does not
further the public policies of promoting strong families and family values
as stated in A.R.S. § 25-103(A). But those same policies were in effect when
this court decided Thomas. See 1996 Ariz. Sess. Laws ch. 192 § 23 (enacting
§ 25-103). We see no reason to depart from Thomas.

¶18 Although Thomas interpreted the best-interests presumption
in § 25-409(B), the same logic applies to the significant detriment element
under § 25-409(A)(2). Thomas, 203 Ariz. at 37, ¶¶ 16–18. It is inconsistent
for a third party to allege a significant detriment if the child remains with
the parent while also seeking joint legal decision-making that would leave
the child in the parent’s care. For that reason, the statutory definition
contemplates that joint legal decision-making cannot be awarded to a
nonparent. See A.R.S. § 25-401(2) (“‘Joint legal decision-making’ means both
parents share decision-making and neither parent’s rights or responsibilities
are superior except with respect to specified decisions as set forth by the
court or the parents in the final judgment or order.” (emphasis added)). As
a matter of law, the superior court could not award joint legal decision-
making and placement to Hustrulid, and thus the court properly dismissed
his petition. See In re Marriage of Friedman, 244 Ariz. 111, 117, ¶ 23 (2018)
(appellate courts may affirm a ruling if the superior court reached the right
result).

C. Sua Sponte Reconsideration

¶19 Hustrulid further contends the superior court erred by
reconsidering its initial ruling sua sponte and summarily denying his
petition without notice or allowing him to amend the petition to cure the
defect. The ruling was interlocutory, however, and a court may properly
reconsider an interlocutory ruling before it enters final judgment. In re
Mario L., 190 Ariz. 381, 384 (App. 1997). The court did not abuse its
discretion.

¶20 Moreover, § 25-409(A) explicitly requires the court to
“summarily deny” a petition that fails to “establish” the four statutorily
required elements. Although “summarily deny” is not a defined term, we
apply its ordinary meaning. See State v. Pena, 235 Ariz. 277, 279, ¶ 6 (2014)

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(absent statutory definition, courts may look to dictionary definitions for
common meaning of a term). According to Black’s Law Dictionary (11th
ed. 2019), “summary” means “[w]ithout the usual formalities; . . .
[i]mmediate; done without delay.” Thus, a court may sua sponte deny a
petition brought under § 25-409 that fails to sufficiently establish the
required elements without allowing amendment of the petition or requiring
the legal parent to respond. In that circumstance, re-filing the petition, with
new or additional facts, would not be precluded. Hustrulid has not shown
the court abused its discretion.

D. A.R.S. § 25-409(A) and Chapman

¶21 As noted, a “court shall summarily deny” a third-party’s
petition for legal decision-making and placement “unless it finds that the
petitioner’s initial pleading establishes” that the required elements “are
true.” A.R.S. § 25-409(A). In Chapman, this court likened this pleading
requirement to Rule 12(b)(6). 243 Ariz. at 242, ¶ 24. Here, the superior court
questioned that analogy, reasoning that because § 25-409(A) requires a
petition to “establish” that the four elements “are true,” it differs from and
is inconsistent with the Rule 12(b)(6) standard, under which the court will
assume the truth of well-pled facts and make reasonable inferences from
those facts. The court also expressed disagreement with Chapman to the
extent it might be read to bar a court that does not summarily deny a
petition from considering whether the petitioner has proved the required
elements at the resulting hearing. See Chapman, 243 Ariz. at 240, 243, ¶¶ 16–
17, 26.

¶22 The Arizona Rules of Family Law Procedure are generally
applicable in all family law matters and the Arizona Rules of Civil
Procedure do not apply except where expressly incorporated. Kline v. Kline, 221 Ariz. 564, 568, ¶ 13 (App. 2009). When the language of a family law rule
is substantially the same as a civil rule, we may apply caselaw interpreting
the civil rule. See id. at 568–69, ¶ 13. Compare Ariz. R. Fam. Law. P. 29(a)(6)
(“failure to state a claim upon which relief can be granted”), with Ariz. R.
Civ. P. 12(b)(6) (“failure to state a claim upon which relief can be granted”).

¶23 When considering a Rule 12(b)(6) motion to dismiss, a court
“must assume the truth of all well-pleaded factual allegations and indulge
all reasonable inferences from those facts, but mere conclusory statements
are insufficient.” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012).
Under Rule 12(b)(6), dismissal is appropriate only if the plaintiff “would
not be entitled to relief under any interpretation of the facts susceptible of
proof.” Id. at ¶ 8 (citation and quotation omitted). When a court denies a

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motion to dismiss under Rule 12(b)(6), the consequence is that the litigation
proceeds to a decision on the merits of the plaintiff’s claim.

¶24 As Chapman recognized, the issue for the court in the first
instance under § 25-409(A) is whether the third party’s “initial pleading”
alleges facts that, if true, would “establish” the elements the petitioner
ultimately must prove. Chapman, 243 Ariz. at 242, ¶ 21 n.2, ¶ 24. When
those facts are disputed, as they often are, the “initial pleading” alone
cannot prove those facts. Id. An evidentiary hearing is required to resolve
the parties’ factual disputes, which often will turn on credibility issues. But
at the outset of the proceeding, to avoid summary denial, a third party’s
“initial pleading” need only contain well-pled factual allegations that, if
proven, would establish the truth of each of the four § 25-409(A) elements.
Id. To this end, although conclusory statements will not suffice, simply
because the legal parent disputes the third party’s allegations does not
necessarily mean the petitioner will be unable to offer sufficient proof of the
elements at the resulting evidentiary hearing. After the court hears
evidence presented by the third party and the legal parent, it then must
decide whether the petitioner has proved the § 25-409(A) elements.

¶25 Having reiterated this analysis from Chapman, we address one
paragraph that, as the superior court pointed out, may be read as conflicting
with our description of how § 25-409 operates. In addressing § 25-409(A)(2),
the Chapman court stated:

The [superior] court must consider whether significant
detriment is established only when determining whether to
summarily dismiss a petition for legal decision-making and
parenting time by a non-parent or to allow it to proceed for
consideration on the merits. Once the court finds that this
threshold is met and allows the litigation to proceed, the
petitioning party bears the burden of rebutting, by clear and
convincing evidence, the presumption that awarding legal
decision-making to the legal parent [is in the child’s best
interests].

243 Ariz. at 243, ¶ 26 (emphasis added) (citations omitted).

¶26 The superior court interpreted this passage from Chapman to
mean that it could not revisit the “merits” of significant detriment at the
evidentiary hearing. Given this court’s use of the word “only” in the first
sentence, it appears to conflict with the intended operation of § 25-409.
When the quoted passage is read in context with the remainder of the

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decision, however, we do not draw the same conclusion. The merits of a
third-party’s petition for legal decision-making include each of the
elements in § 25-409(A) along with the requirement that the third party
rebut the § 25-409(B) presumption. As the Chapman court later noted, the
superior court in that case found that the threshold was met, and therefore
“moved on to consider the petition’s merits and determine whether
[petitioners] could present clear and convincing evidence to overcome
A.R.S. § 25-409(B)’s presumption.” 243 Ariz. at 243, ¶ 27 (emphasis added).
Thus, notwithstanding Chapman’s seemingly inadvertent use of the word
“only” in ¶ 26, if a court does not summarily deny a third-party’s petition
for legal decision-making, it must hear the parties’ evidence before deciding
whether the petitioner has proved each of the § 25-409(A) elements along
with the presumption in § 25-409(B).

¶27 This framework is analogous to the procedure for deciding
whether to grant a petition to modify legal decision-making or parenting
time. Under A.R.S. § 25-411(L), the superior court “shall deny the motion
[to modify] unless it finds that adequate cause for hearing the motion is
established by the pleadings, in which case it shall set a date for hearing on
why the requested modification should not be granted.” Like § 25-409(A),
§ 25-411(L) authorizes the court to summarily deny a motion that lacks
sufficient factual allegations. The pleading requirement in § 25-411(L) is
intended to “spare the parties and the child the cost, disruption, and
potential trauma of a full modification hearing unless the petition and
supporting documents show ‘adequate cause.’” DePasquale v. Superior Ct., 181 Ariz. 333, 335 (App. 1995); see also In re Marriage of Dorman, 198 Ariz.
298, 302, ¶ 9 (App. 2000) (procedure in § 25-411(L) is intended to prevent
repetitive or insubstantial petitions to modify).

¶28 The pleading requirement in § 25-409(A) serves a similar
screening function. The court first determines whether the third party’s
“initial pleading” contains sufficient factual allegations to establish the four
statutory elements. If it satisfies that standard, then the court receives
relevant evidence at a hearing where the petitioner must also rebut, by clear
and convincing evidence, the presumption that awarding legal decision-
making to the parent is in the child’s best interests. See A.R.S. § 25-409(B).
And as we observed in Downs v. Scheffler, 206 Ariz. 496, 501, ¶ 17 (App.
2003), in this type of proceeding, analysis of significant detriment and best
interests will often overlap.

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E. Attorneys’ Fees and Costs

¶29 Each party requests attorneys’ fees under A.R.S. § 25-324(A),
which authorizes a court to award fees in domestic relations matters “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.”
(Emphasis added.) The parties both claim that the other has taken
unreasonable positions on appeal, but neither party has provided any
information about their respective financial resources or directed us to any
portion of the superior court record where such information may be found.
Because we are unable to comply with the statutory mandate to consider
each of the two factors under § 25-324(A), we deny both fee requests. See
Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13 (App. 2007) (“In
deciding whether fees are appropriate, the court must consider the financial
resources of both parties and the reasonableness of the positions taken
throughout the case.”). As the successful party on appeal, see A.R.S. § 12-
341, Mother is awarded taxable costs subject to her compliance with
ARCAP 21.

CONCLUSION

¶30 We affirm the superior court’s dismissal of Hustrulid’s third-
party petition for joint legal decision-making and placement.

AMY M. WOOD • Clerk of the Court
FILED: AA

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