Lambertus v. Hon. porter/day-strange

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MOLLY LAMBERTUS, Petitioner,

v.

THE HONORABLE GERALD PORTER,
Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA,
in and for the County of MARICOPA, Respondent Judge

LINDA FAYE DAY-STRANGE, Real Party in Interest.

No. 1 CA-SA 14-0085
FILED 08-12-2014

Appeal from the Superior Court in Maricopa County
No. FC2013-052939
The Honorable Gerald Porter, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Pangerl Law Firm, PLLC, Phoenix
By Regina Pangerl

The Murray Law Offices, P.C., Scottsdale
By Stanley David Murray
Co-Counsel for Petitioner

Gregan & Associates, Mesa
By Lawton Connelly
Counsel for Real Party in Interest/Intervenor
 LAMBERTUS v. HON. PORTER/DAY-STRANGE
Opinion of the Court

OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe joined and Judge Michael J. Brown
dissented.

T H O M P S O N, Judge:

¶1 This special action arises out of the trial court’s temporary
order in a paternity action brought by Molly Lambertus (Mother) against
Tyler Day (Father) ordering that paternal grandmother Linda Faye Day-
Strange (Grandmother) receive two hours of visitation per week with Child.
For the following reasons, we accept jurisdiction and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 Child was born on August 28, 2013. Father, who is serving a
lengthy prison sentence1, signed an acknowledgment of paternity. Mother
obtained an amended birth certificate naming Father as Child’s biological
father before filing the paternity action in December 2013. Grandmother
filed a motion to intervene in the paternity action, which Mother did not
object to and the trial court granted. In early February 2014, Grandmother
filed a petition for grandparent visitation and a motion for a temporary
order granting her visitation with Child. Mother filed a motion to strike
Grandmother’s motion for temporary orders. Also in February 2014, the
court appointed a Court Appointed Advisor (CAA) to investigate Mother’s
concerns about Grandmother and Father’s concerns about Mother, ordered
Mother to undergo a hair follicle test,2 and ordered Grandmother to
undergo random alcohol testing.

¶3 In April 2014, the trial court held an evidentiary hearing on
temporary orders. After taking testimony from the CAA, Mother, and
Grandmother, the court ruled that, on a temporary basis, Grandmother
would have two hours per week of visitation with Child at a pizza

1As of the February 28, 2014 hearing, Father had six and one-half years left
to serve of his sentence.

2The court’s order stated “[t]he Hair Follicle Test shall be for Screen B (most
commonly abused 5 street drugs).”

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Opinion of the Court

restaurant on the day and time selected by Mother beginning April 27, 2014.
Visits were to take place only at the restaurant unless the parties agreed in
writing to another location. The court further ordered stopping
Grandmother’s random alcohol tests, with the caveat that Mother could
discontinue any visit if she had concerns about Grandmother’s sobriety and
Grandmother would then need to immediately go for alcohol testing.

¶4 Mother filed a motion with the trial court to stay the
temporary orders, which the trial court denied. She filed this special action
and a request for stay, which we denied after a hearing.

DISCUSSION

¶5 Special action jurisdiction is appropriate because the order
complained of here is a temporary order granting visitation rights and there
is no adequate and speedy remedy by appeal. See Finck v. Superior Court,
177 Ariz. 417, 418, 868 P.2d 1000, 1001 (App. 1993); Ariz. R.P. Spec. Act. 1(a).

¶6 In her petition for special action, Mother argues that the trial
court lacks subject matter jurisdiction to grant temporary visitation to
Grandmother. She further argues that her right to due process was violated
because she did not have sufficient time to prepare for the hearing on
temporary orders.

¶7 Mother’s reference to “subject matter jurisdiction” with
regard to the first issue is imprecise. Article 6, Section 14(1), of the Arizona
Constitution gives the superior court original jurisdiction of “[c]ases and
proceedings in which exclusive jurisdiction is not vested by law in another
court.“ The superior court has original jurisdiction of paternity actions.
Arizona Revised Statutes (A.R.S.) § 12-123(A) (Supp. 2013) provides that the
superior court “ha[s] original and concurrent jurisdiction as conferred by
the constitution . . . .” Section 12-123(B) further provides that “[t]he court,
and the judges thereof, shall have all powers and may issue all writs
necessary to the complete exercise of its jurisdiction.” Section 25-801 (2007)
provides that the superior court has original jurisdiction in proceedings to
establish paternity and that “[a]ll such proceedings shall be civil actions.”

¶8 The question before us is whether the trial court had statutory
or other authority to issue the temporary order for visitation in this case.
We conclude that it did.

¶9 Arizona Revised Statutes § 25-409(C) (Supp. 2013) provides:

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 LAMBERTUS v. HON. PORTER/DAY-STRANGE
Opinion of the Court

Pursuant to § 25-402, subsection B, paragraph 2,
a person other than a legal parent may petition
the superior court for visitation with a child.
The superior court may grant visitation rights
during the child’s minority on a finding that the
visitation is in the child’s best interests and that
any of the following is true: . . . (2) the child was
born out of wedlock and the child’s parents are
not married to each other at the time the petition
for visitation is filed.

Arizona Revised Statutes § 25-404(A) (Supp. 2013) provides that “[a] party
to a legal decision-making and parenting time proceeding may move for a
temporary order.” The trial court determined here that Grandmother was
a party to a legal decision-making and parenting time proceeding because
she had intervened in the paternity action. Although not cited by the
parties, A.R.S. § 25-817 similarly provides, in relevant part:

A. Pending a judicial determination of
paternity, the court shall issue a temporary
order of support, and may issue a temporary
order regarding custody and parenting time,
if any of the following applies:

....

2. A notarized or witnessed statement is
signed by both parents acknowledging
paternity . . . and filed with the department
of health services pursuant to § 36-334 or
filed with the department of economic
security.

....

B. A temporary order issued pursuant to this
section does not prejudice the rights of a
person or child that are adjudicated at
subsequent hearings in the proceeding.

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Opinion of the Court

C. A temporary order issued pursuant to this
section may be revoked or modified and
terminates when the final support, custody
or parenting time order is entered or when
the petition for support, custody or
parenting time is dismissed.

¶11 Mother argues that Grandmother is not “[a] party to a legal
decision-making and parenting time proceeding” under A.R.S. § 25-404(A)
and therefore the superior court lacked statutory authority to issue the
temporary order for visitation. Although it is true that sections 25-404 and
25-817 do not contain the word “visitation,” A.R.S. § 25-402 (Supp. 2013)
does. Section 25-402 instructs the court to determine whether it has
jurisdiction before “conduct[ing] a proceeding concerning legal decision-
making or parenting time, including a proceeding to determine the legal
decision-making or visitation of a nonparent. . . .” That provision evidences
that the legislature intended visitation of a nonparent to be included under
“legal decision-making or parenting time.”

¶12 Additionally, A.R.S. § 12-123 (B) provides that “[t]he court,
and the judges thereof, shall have all powers and may issue all writs
necessary to the complete exercise of its jurisdiction.” Superior court judges
also have inherent authority “to conduct such proceedings and issue such
orders as are necessary to the complete administration of justice . . . .”
Arpaio v. Baca, 217 Ariz. 570, 576, ¶ 19, 177 P.3d 312, 318 (App. 2008) (citing
Schavey v. Roylston, 8 Ariz. App. 574, 575, 448 P.2d 418, 419 (1968)). We
conclude that the authority to make temporary orders as to grandparent
visitation in an appropriate case is necessary to the court’s exercise of its
jurisdiction over child custody and visitation issues.

¶13 Mother’s due process argument is without merit.
Grandmother filed her petition for visitation on February 5, 2014. At the
February 28, 2014 hearing, the trial court appointed the CAA and ordered
all parties, including Grandmother, to fully comply with the CAA’s
investigation. The court set a review hearing on Friday, April 18, 2014. The
judge informed the parties that he would not enter temporary orders on
April 18, but if temporary orders were still required he would hold a
hearing within a week of that date.

¶14 The CAA filed her report on April 8, 2014. The court held the
review hearing on Friday, April 18, 2014, ordered Grandmother to sign
medical releases, and set the evidentiary hearing for Monday, April 21,

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Opinion of the Court

2014. Mother did not object at that time to the hearing being set on Monday,
but by the end of the day she filed an emergency motion to continue the
April 21 hearing. On the morning of the hearing, counsel for Mother
objected that she had not had adequate time to prepare, and that she
wanted more time than the twenty minutes per side the court had allotted.

¶15 By April 21, the court had had the CAA’s report for almost
two weeks. Although Mother states in her reply that the parties did not
receive the report until April 18, she acknowledges that she learned of the
CAA’s “report and recommendations” about a week before the April 18
hearing. Grandmother did not dispute Mother’s allegations about her past
alcohol abuse, and the CAA testified that Grandmother had been candid
with her about her past problems with alcohol.

¶16 The trial court did not violate Mother’s due process rights in
setting the evidentiary hearing on temporary orders when it did–-more
than two months after Grandmother filed her petition for visitation.
Although Mother argues that the court “suddenly decided to set an
evidentiary hearing,” all of the parties had known the course the judge
planned to take because he let them know on February 28 that he would 1)
get the report, 2) hold a review hearing on April 18, and 3) schedule the
evidentiary hearing on temporary orders, if still needed, within a week of
the April 18 hearing.

¶17 Both parties request attorneys’ fees pursuant to A.R.S. § 25-
324 (Supp. 2013). In our discretion, we decline to award attorneys’ fees.

¶18 For the foregoing reasons, we accept jurisdiction and deny
relief.

B R O W N, Judge, dissenting:

¶19 I disagree with the majority’s conclusion that A.R.S. § 25-402,
or any other statute in Title 25, authorized the trial court to grant
Grandmother’s visitation request as a temporary order.

¶20 In December 2013, Mother filed a petition for paternity, legal
decision-making, parenting time, and child support, which the majority
refers to as the “paternity action.” Grandmother sought to intervene in the
paternity action and requested temporary visitation. She then filed a
motion for a temporary order, asserting that under A.R.S. § 25-315 the trial
court had authority to enter such an order and it was in Child’s best

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Brown, J., Dissenting

interests to adopt Grandmother’s proposed visitation schedule.3 In
response, Mother filed a motion to strike Grandmother’s motion, asserting
that temporary orders are governed by A.R.S. § 25-404(A) and “there is no
legal or statutory basis upon which Paternal Grandmother has the legal
right to seek temporary orders for grandparent visitation.”

¶21 On February 28, 2014, the trial court held a return hearing on
the pending motions. The court denied Mother’s motion to strike, stating
that because Grandmother is a party under A.R.S. § 25-404, “that pretty
much resolves the issue of whether she can or cannot pursue temporary
orders.” The court also noted that “there’s nothing that doesn’t permit
[temporary orders] either.” Responding to cross-allegations of substance
abuse, the court appointed the CAA and ordered Grandmother and Mother
to report for substance abuse testing.

¶22 On April 18, the trial court held a review hearing. Mother
explained that the CAA had not been provided with all the relevant
documentation in order to make a recommendation because Grandmother
had failed to sign medical releases related to hospitalization for excessive
alcohol consumption in July 2013. Presumably agreeing on the importance
of the documentation, the court ordered Grandmother to provide the
releases. After Mother’s counsel reiterated her contention that § 25-404
does not authorize temporary orders for grandparent visitation, the court
responded that as an alternative it could order parenting time for Father
and compel Mother to take Child to visit him in prison.

¶23 Three days later, the court held an evidentiary hearing on
Grandmother’s motion for temporary orders. At the outset of the hearing,
Mother noted that Grandmother had still not provided the requested
medical releases. The CAA testified in favor of Grandmother being granted
temporary visitation, but acknowledged on cross-examination that she had
not reviewed any of Grandmother’s medical records regarding alcohol
abuse. After Mother and Grandmother each testified regarding a myriad
of accusations of alcohol abuse, drug abuse, and harassment by all parties,
the court granted Grandmother’s request for a temporary visitation order.

¶24 Arizona law expressly provides that a trial court has
discretion to grant visitation rights to nonparents. A.R.S. § 25-409(C) (“The
superior court may grant visitation rights during the child’s minority on a
finding that the visitation is in the child’s best interests[.]”) (emphasis

3 Although A.R.S. § 25-315 refers to temporary orders, it does not
address visitation.

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Brown, J., Dissenting

added); Egan v. Fridlund-Horne, 221 Ariz. 229, 238, ¶ 31, 211 P.3d 1213, 1222
(App. 2009) (“[T]he right of a nonparent to visitation is discretionary with
the superior court.”). In evaluating a request for visitation, a court “shall
give special weight to the legal parents’ opinion of what serves their child’s
best interests.” A.R.S. § 25-409(E); see also McGovern v. McGovern, 201 Ariz.
172, 177, ¶ 17, 33 P.3d 506, 511 (App. 2001) (holding that courts “should
recognize and apply a presumption that a fit parent acts in his or her child’s
best interest in decisions concerning the child’s care, custody, and control,
including decisions concerning grandparent visitation”).

¶25 The law also provides that a trial court’s authority to address
matters in domestic relations proceedings is established by statute. See Fenn
v. Fenn, 174 Ariz. 84, 87, 847 P.2d 129, 132 (App. 1993) (“Courts may do
many things in the best interests of children, but they cannot advance such
interests by exercising jurisdiction that they lack. Every power that the
superior court exercises in a dissolution proceeding must find its source in
the supporting statutory framework.”); cf. Hunt v. Hunt, 22 Ariz. App. 554,
556, 529 P.2d 708, 710 (1974) (“In the absence of statutory authorization, it
is our opinion that the trial court committed error when it included a
temporary custody order in its final judgment which decided the issue of
dissolution of the marital bonds.”). Because no statute gives a trial court
the legal ability to award visitation to a nonparent at a temporary orders
proceeding, the court in the instant case acted in excess of its authority.

¶26 The plain language of A.R.S. § 25-402 does not address
temporary orders; rather, it governs the extent of the authority of Arizona’s
courts over “legal decision-making or parenting time” proceedings. Section
25-402 thus requires that before a court conducts a proceeding concerning
legal decision-making or parenting time, including a proceeding to
determine the legal decision-making or visitation of a nonparent, the court
“must confirm its authority to do so to the exclusion of any other state,
Indian tribe or foreign nation by complying with the uniform child custody
jurisdiction and enforcement act, the parental kidnapping prevention act
and any applicable international law concerning the wrongful abduction or
removal of children.” Section 25-402 makes no reference to any procedural
requirements, much less temporary orders. Instead, § 25-402 ensures that
a court handling matters involving the custody and care of children will
verify at the inception of the proceeding that the court has proper authority
to decide the pending matter, whether it be a petition for legal decision-
making, parenting time, or visitation. To the extent it has any relevance to
the question before us, the statute confirms the principle that in matters
arising under Title 25, courts will act in accordance with the authority
prescribed by the legislature.

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Brown, J., Dissenting

¶27 Nor does § 25-404 support the trial court’s ruling. “Parenting
time” is defined as “the schedule of time during which each parent has
access to a child at specified times.” A.R.S. § 25-401(5) (emphasis added).
“Visitation” is defined as “a schedule of time that occurs with a child by
someone other than a legal parent.” A.R.S. § 25-401(7) (emphasis added).
Section 25-404(A) provides as follows:

A party to a legal decision-making and parenting time proceeding
may move for a temporary order. This motion must be
supported by pleadings as provided in § 25-411. The court
may award temporary legal decision-making and parenting time
under the standards of § 25-403 after a hearing, or, if there is
no objection, solely on the basis of the pleadings.

(Emphasis added.)

¶28 Notably absent from § 25-404 is any mention of visitation.
The statute’s plain language gives a trial court authority to issue temporary
orders involving “temporary legal decision-making and parenting time.”
The trial court nonetheless found that Grandmother is a “party” to a legal
decision-making or parenting time proceeding because she intervened in
the paternity action. Grandmother would not be able to participate as a
party in any aspect of the legal decision-making or parenting time
proceedings, however, because she sought visitation under A.R.S. § 25-
409(C). She did not seek in loco parentis visitation under § 25-409(A). Thus,
the mere fact that Grandmother filed a petition for visitation in the paternity
action did not give the trial court authority to treat her petition as a
proceeding for legal decision-making or parenting time.

¶29 This construction of § 25-409 is supported by the legislative
history of the pertinent statutes in Title 25. The former statutes did not
include a specific definition for “visitation.” See A.R.S. § 25-402 (2001). In
2012, the legislature adopted the current statutes that replaced “custody”
with “legal decision-making” and added a new definition for “visitation.”
2012 Ariz. Sess. Laws, ch. 309, § 4. As pertinent here, all references in Title
25, Chapter 4 to “custody” were replaced with “legal decision-making.”4

4 The prior version of A.R.S. § 25-404(A) (1996) read as follows: “A
party to a custody proceeding may move for a temporary custody order. This
motion must be supported by pleadings as provided in section 25-411. The
court may award temporary custody under the standards of section 25-403

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 LAMBERTUS v. HON. PORTER/DAY-STRANGE
Brown, J., Dissenting

See id. In light of these amendments, had the legislature intended to give
nonparents the right to obtain temporary orders it could easily have done
so by including the phrase “visitation” in § 25-404.5 The legislative decision
to omit “visitation” in § 25-404 therefore reflects the intent to exclude
nonparents from those who have the right to obtain temporary orders for
visitation.6 See State v. Gray, 227 Ariz. 424, 429 n. 5, ¶ 15, 258 P.3d 242, 247
n. 5 (App. 2011) (“To the extent the legislature omitted references to
attempted persuasion of a witness found in previous statutes, we presume
such omissions were intentional.”); State v. Averyt, 179 Ariz. 123, 128, 876
P.2d 1158, 1163 (App. 1994) (“Under the rules of statutory construction,
when the legislature modifies the language of a statute, there is a
presumption that a change in the existing law was intended.”).

¶30 Construing the statute as outlined comports with the
constitutional standards underpinning family relationships. “Parents have
a constitutionally protected right under the Fourteenth Amendment to raise
their children as they see fit.” Graville v. Dodge, 195 Ariz. 119, 123-24, ¶ 19,
985 P.2d 604, 608-09 (App. 1999); see also Prince v. Massachusetts, 321 U.S.
158, 166 (1944) (recognizing that the “custody, care and nurture of the child
reside first in the parents”). However, grandparent visitation granted
within the parameters of § 25-409 “does not substantially infringe on
parents’ fundamental rights.” McGovern, 201 Ariz. at 175, ¶ 9, 33 P.3d at
509. A presumption exists that “fit parents act in the best interests of their

after a hearing, or, if there is no objection, solely on the basis of the
pleadings.” (Emphasis added.)

5 If the legislature intended to place a visitation request on the same
footing as legal decision-making and parenting time, presumably it would
have said as much in A.R.S. § 25-407, which (1) provides that legal decision-
making and parenting time hearings have priority status and (2) sets a sixty-
day requirement for conducting an evidentiary hearing on a motion for
temporary orders. Conspicuously absent from § 25-407 is any reference to
visitation. Similarly, had the legislature intended to include visitation
proceedings as part of temporary orders in a paternity action, it could have
included the appropriate wording. See A.R.S. § 25-817.

6 Whether the legislature intended that nonparents who stand in loco
parentis to the child may properly seek a temporary order for visitation is
not an issue presented in this case. See Egan, 221 Ariz. at 232 n. 5, ¶ 8, 211
P.3d at 1216 n. 5 (declining to address the trial court’s authority to issue a
temporary visitation order requested by nonparent who stood in loco
parentis).

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Brown, J., Dissenting

children, Troxel v. Granville, 530 U.S. 57, 68 (2000), and a grandparent
seeking visitation has the burden of rebutting the presumption “that a
decision made by a fit parent to deny or limit visitation was made in the
child’s best interest,” McGovern, 201 Ariz. at 177, ¶ 17, 33 P.3d at 511.

¶31 Consistent with the recognition of these parental rights, the
legislature has “provided nonparents with fewer rights than parents.”
Egan, 221 Ariz. at 238, ¶ 31, 211 P.3d at 1222; McGovern, 201 Ariz. at 177, ¶
16, 33 P.3d at 511 (noting the legislature’s awareness of “parents’ superior
right to the custody and care of their children”) (citations omitted). These
principles, together with the specific lines the legislature has drawn
between parents and nonparents, leads to the logical conclusion that a
parent has the right to seek temporary orders relating to legal decision-
making and parenting time, but a nonparent seeking visitation lacks the
same right. See McGovern, 201 Ariz. at 178, ¶ 20, 33 P.3d at 512 (“With those
concepts in mind, we conclude that a trial court must not only apply ’the
statute as written,’ but also must afford a fit parent the procedural and
evidentiary safeguards discussed above in order to apply § 25-409 in a
constitutionally acceptable manner.”).

¶32 Finally, while A.R.S. § 12-123(B) provides broad authority for
the superior court to manage its jurisdiction and issue orders necessary for
the “administration of justice,” Arpaio, 217 Ariz. at 576, ¶ 19, 177 P.3d at
318, the majority cites no authority in the domestic relations context
indicating that the superior court has general inherent authority to act
beyond the authority granted by statute. See Victor v. Victor, 177 Ariz. 231,
233, 866 P.2d 899, 901 (App. 1993) (“Our domestic relations court has no
underlying power to grant equitable relief outside of the statutory
framework from which it derives its authority.”); see also A.R.S. § 25–311
(“The superior court is vested with original jurisdiction to hear and decide
all matters arising pursuant to this chapter and pursuant to chapter 4, article
1 of this title.”); Finck v. Superior Court, 177 Ariz. 417, 421-22, 868 P.2d 1000,
1004-05 (App. 1993) (“Before superior court jurisdiction expands in
domestic relations actions [regarding] custody or visitation rights . . . the
legislature must first create those rights[.]”), approved in part sub nom., Finck
v. O’Toole, 179 Ariz. 404, 880 P.2d 624 (1994).

¶33 In sum, the majority opinion is in conflict with the plain
language of § 25-404(A), the specific definitions of “parenting time” and
“visitation” in § 25-401, the recent revisions of both of these statutes, and
the constitutional presumptions afforded to parents. See Hall v. Read Dev.,
Inc., 229 Ariz. 277, 279, ¶ 6, 274 P.3d 1211, 1213 (App. 2012) (“We first look
to the language [used by the legislature] and will give effect to the plain

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Brown, J., Dissenting

meaning of its terms as the best indicator of intent unless those terms are
ambiguous or would create an absurd result.”); see also O’Toole, 179 Ariz. at
407, 880 P.2d at 627 (“The legislative scheme, naming specific classes of
parties to whom visitation may be granted, suggests to us that the
legislature did not intend to confer authority to award visitation to
unspecified third parties.”).

¶34 Because the trial court lacked the authority to issue a
temporary order granting visitation to grandmother, I respectfully dissent.
I would therefore grant Mother’s requested relief by vacating the
temporary visitation order.

:gsh

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