Hyde v. Beatty

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

CYNTHIA HYDE, Petitioner/Appellant,

v.

JESSICA BEATTY, Respondent/Appellee.

No. 1 CA-CV 23-0416 FC

FILED 09-10-2024

Appeal from the Superior Court in Mohave County
No. L8015DO202107007
The Honorable Megan A. McCoy, Judge

AFFIRMED

COUNSEL

Genesis Legal Group, Glendale
By Alyssa N. Oubre, Kevin Jensen
Counsel for Petitioner/Appellant

Aspey Watkins & Diesel, PLLC, Flagstaff
By Michael J. Wozniak, Zachary J. Markham, Zacharias N. Hope
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Anni Hill Foster joined.

P A T O N, Judge:

¶1 Cynthia Hyde (“Grandmother”) appeals the superior court’s
final orders modifying her third-party visitation rights and the court’s order
denying relief under Arizona Rules of Family Law Procedure (“ARFLP”)
83 and 84. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Grandmother’s son (“Father”) and Jessica Beatty (“Mother”),
have three children together. Father died in 2019. After Father’s death,
Mother and the children moved to Pennsylvania.

¶3 In January 2021, Grandmother petitioned for third-party
visitation with the children. In May 2021, the superior court awarded
Grandmother unsupervised visitation for three days per month in
Pennsylvania during the school year and for longer periods in Arizona or
Pennsylvania during the summer and holidays (“Visitation Order”).

¶4 In December 2021, Grandmother petitioned to enforce the
Visitation Order, claiming Mother prevented her from visiting the children
during the holidays. The court held a hearing on Grandmother’s
enforcement petition in February 2022, and in March 2022, found Mother in
contempt of court and ordered make-up visitation for Grandmother during
the children’s summer break (“March Contempt Order”).

¶5 A few months later, Grandmother filed a petition for
contempt and enforcement of the March Contempt and Visitation Orders,
alleging Mother failed to comply with both. In October 2022, the court
again found Mother in contempt of court for violating the orders (“October
Contempt Order”). The court ordered Mother to comply with the Visitation
Order and make-up visitation for Grandmother.

¶6 In November 2022, Mother petitioned to modify the Visitation
Order seeking either to eliminate Grandmother’s visitation or restrict it to
supervised, non-overnight visitation in Pennsylvania only, and requested

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expedited temporary orders. In December 2022, Grandmother moved to
dismiss Mother’s petition, which the superior court denied. After a hearing,
the court entered temporary orders which allowed Grandmother to visit
the children only in Pennsylvania until it issued its final orders.

¶7 Mother also disclosed a November 2022 letter from Nicholas
Konior, one child’s counselor, in December 2022, and disclosed Konior as a
potential witness about a month later. A few days before the final orders
hearing, Mother disclosed a letter Konior wrote in March 2023.

¶8 The superior court held a final orders hearing on Mother’s
modification petition and Grandmother’s third enforcement petition in
March 2023. Mother testified that the children expressed negative feelings
about spending time with Grandmother. She also testified that in
November 2022, Konior recommended his child patient not visit
Grandmother because the child was afraid of Grandmother and became
upset when asked about seeing her, which Konior memorialized in a letter.

¶9 Over Grandmother’s foundation objection, the court
admitted the November 2022 letter. In March 2023, Konior provided an
updated letter which stated, “Regarding the March 16, 2023, hearing, I
recommend no contact with grandmother.” The court admitted that letter
into evidence over Grandmother’s foundation and hearsay objections.

¶10 After the hearing, the superior court found that visitation
with Grandmother was not in the children’s best interests because “[t]he
ongoing discord is causing trauma to the children that is far outweighing
[the] benefit of a relationship.” The court gave “special weight to [Mother’s]
input as she [was] their lone parent due to the death of the children’s
father.” The court modified the Visitation Order, ordering that any future
visitation between Grandmother and the children occur only with Mother’s
consent.

¶11 A few weeks later, Grandmother moved to alter or amend the
judgment under ARFLP 83, raising arguments regarding Konior’s
qualifications and the special weight given to Mother’s opinions. In August
2023, we stayed the appeal for the superior court to enter ARFLP 78(c)
language and rule on the ARFLP 83 motion. The court subsequently
amended the final orders to add ARFLP 78(c) language but did not rule on
the ARFLP 83 motion. In the meantime, Grandmother filed an ARFLP 84
motion for clarification. We continued the stay twice and directed the
superior court to rule on the ARFLP 83 and 84 motions. The court
ultimately denied Grandmother’s requests for relief.

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¶12 Grandmother timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Section 12-2101(A)(2).

DISCUSSION

¶13 We view the record in the light most favorable to upholding
the superior court’s visitation order. In re Marriage of Friedman & Roles, 244
Ariz. 111, 113, ¶ 2 (2018). Grandmother argues the superior court erred by
(1) denying her motion to dismiss because Mother’s petition to modify was
premature under Section 25-411, (2) admitting improper expert testimony
at the final orders hearing, and (3) giving “special weight” to Mother’s
opinion on whether visitation with Grandmother was in the children’s best
interests.

I. Section 25-411(A)’s one-year waiting period does not apply to
third-party visitation modification petitions.

¶14 We review the superior court’s denial of a motion to dismiss
de novo. See Cox v. Ponce, 251 Ariz. 302, 304, ¶ 7 (2021) (discussing ARFLP
29(a)(6)). And we review issues of statutory interpretation de novo.
McGovern v. McGovern, 201 Ariz. 172, 175, ¶ 6 (App. 2001).

¶15 Grandmother contends the superior court should have
dismissed Mother’s November 2022 petition to modify visitation because
Mother filed it one month after “the [superior] court modified parenting
time in October 2022[,]”in violation of Section 25-411(A)’s requirement that
a party wait one year to file a modification petition. See A.R.S. § 25-411(A).
Mother responds that the court appropriately considered her petition
because Section 25-411’s exceptions to the one-year modification rule
apply—namely, that visitation with Grandmother seriously endangered
the children’s mental and emotional health, and the court may modify a
visitation order when it would serve the children’s best interests. See A.R.S.
§ 25-411(A), (J).

¶16 The October Contempt Order addressed Grandmother’s
petition to enforce visitation and did not concern parenting time. It was not
a modification order, as Grandmother suggests, but an enforcement order.

¶17 Further, Section 25-411 is inapposite here. Section 25-411 only
discusses efforts to modify legal decision-making and parenting time; it
says nothing about third-party visitation rights. A.R.S. § 25-411. We have
previously held that when a parenting time statute “does not explicitly refer
to third-party visitation, [it] does not apply to visitation rights.” McPherson
v. McPherson, 1 CA-CV 22-0298, 2023 WL 2317560, at *3, ¶ 13 (Ariz. App.

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Mar. 2, 2023) (mem. decision); see also Sheehan v. Flower, 217 Ariz. 39, 42,
¶ 16 (App. 2007); City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965) (stating
we will not expand a statute beyond its express language). Accordingly,
the court did not err as a matter of law by denying Grandmother’s motion
to dismiss Mother’s petition to modify visitation.

II. The superior court did not err by admitting the counselor’s letters.

¶18 Grandmother next contends the superior court erred by
admitting Konior’s letters as evidence “without an adequate showing that
he was qualified to give such opinion,” citing Arizona Rules of Evidence
(“Rule”) 702. We review the superior court’s decision to admit evidence for
an abuse of discretion. Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 23 (App.
2019).

¶19 A party must object to an opposing party’s witnesses and
exhibits in the pretrial statement. ARFLP 76.1(g)(12), (13). Mother
disclosed Konior as a witness and his letters as exhibits in her pretrial
disclosure statements, which Grandmother did not object to. She thus
waived her right to object to their admission at the final orders hearing. See
ARFLP 76.1(i) (if a party does not specifically object to a witness or exhibit
in their pretrial statement, they waive the right to raise it at trial).

¶20 Although Grandmother raised a Rule 702 argument
regarding Konior’s qualifications in her ARFLP 83 motion, she did not raise
it at the final orders hearing. She has therefore waived her right to
challenge Konior’s qualifications on appeal. See Woyton v. Ward, 247 Ariz.
529, 533–34, ¶ 16 (App. 2019) (failing to object to an expert’s qualifications
before the superior court waives the issue on appeal). The court did not err
by admitting Konior’s letters into evidence.

III. The superior court did not err by giving special weight to Mother’s
opinion on whether visitation was in the children’s best interests.

¶21 Because the superior court has discretion to grant or deny
visitation based on the children’s best interests, we will affirm its decision
absent an abuse of discretion. See Friedman, 244 Ariz. at 120, ¶ 36. “An
abuse of discretion exists when the record, viewed in the light most
favorable to upholding the [superior] court’s decision, is ‘devoid of
competent evidence to support’ the decision.” Id. (citation omitted). We
review the interpretation of statutes and constitutional issues de novo. Id.
at 114, ¶ 11.

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¶22 Section 25-409(E) provides that “[i]n deciding whether to
grant visitation to a third party, the court shall give special weight to the
legal parents’ opinion of what serves their child’s best interests.” A.R.S.
§ 25-409(E). Grandmother contends that the phrase “in deciding whether
to grant” means the court may give special weight to a parent’s opinion on
what serves their children’s best interests only in the initial grant of third-
party visitation, not in subsequent visitation decisions. Mother responds
that “it would be an overreach to assume . . . that the Arizona legislature
intended to circumvent . . . a fit parent’s fundamental right to the care,
custody and control of their children” by not mentioning modifications in
Section 25-409(E).

¶23 Parents have a fundamental right to the “care, custody, and
control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000). We have
previously held that this fundamental right prohibits “arbitrary intrusion
into fit parents’ decisions regarding their children, including the decision
to limit or deny third-party visitation.” Borja v. Borja, 254 Ariz. 309, 313,
¶ 8 (App. 2022).

¶24 Courts should assume “a [legal] parent acts in his or her
child’s best interest[s] in decisions concerning the child[ren]’s care, custody
and control” and give “special weight” to a legal parent’s opinion regarding
whether visitation is in the children’s best interests. McGovern, 201 Ariz. at
177–78, ¶¶ 17–18. Mother’s opinion was entitled to special weight because
she remained the children’s legal parent at the final orders hearing. Borja,
254 Ariz. at 314, ¶ 11 (giving a parent’s opinion special weight “as long as
she remains the legal parent”).

¶25 The text of Section 25-409(E) does not preclude a court from
giving special weight to a parent’s opinion when considering a petition to
modify visitation. Section 25-409 is the only Arizona statute that addresses
third-party visitation rights, and it makes no distinction between initial and
subsequent visitation determinations. If the legislature had intended to
restrict the application of Section 25-409(E) to initial visitation
determinations only, it could have done so, for example, by adding the
word “initially” before “grant.” See generally State v. Marshall, 197 Ariz. 496,
504, ¶¶ 27–28 (App. 2000) (If “the legislature intended to restrict the
application of the statute . . . it could have easily done so.”). In light of the
text of Section 25-409(E) and Mother’s fundamental right to parent, the
court did not err by giving Mother’s opinion special weight in determining
what was in the children’s best interests. See Borja, 254 Ariz. at 314, ¶ 11.

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¶26 Mother requests attorneys’ fees and costs on appeal. See
A.R.S. §§ 12-342, 25-324; see also Ariz. R. Civ. App. P. 21. In our discretion,
we decline to award fees. As the prevailing party, Mother may recover her
taxable costs upon compliance with ARCAP 21.

CONCLUSION

¶27 We affirm.

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

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