MORENO v. SILVA/MARTINEZ

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) BRENDA MORENO, ) ) Petitioner/Appellee, ) ) v. ) ) JOSE A. SILVA, JR., ) ) Respondent/Appellee. ) ________________________________) ROSA M. MARTINEZ, ) ) Intervenor/Appellant. ) ________________________________) No. 1 CA-CV 11-0385 DIVISION ONE FILED: 1/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT D MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Maricopa County Cause No. FC2007-006029 and FC2010-071407 (Consolidated) The Honorable Robert E. Miles, Judge AFFIRMED Law Offices of Otilia M. Diaz By Otilia M. Diaz Attorneys for Petitioner/Appellee Rosa M. Martinez In Propria Persona Intervenor/Appellant G E M M I L L, Judge Phoenix Surprise ¶1 court s Rosa order grandchildren. Martinez denying ( Grandmother ) her petition appeals for the visitation family with her For the reasons set forth in this memorandum decision, we affirm. In an opinion issued contemporaneously with this decision, we conclude that Brenda Moreno ( Mother ) is entitled to an award of attorneys fees. Only our resolution of Mother s request for attorneys fees warrants publication. See ARCAP 28(g); Ariz. R. Sup. Ct. 111(h). FACTS 1 AND PROCEDURAL HISTORY ¶2 Grandmother is the mother of Jose Silva ( Father ). Father and Mother were married in July 2000 and have two sons together, born in 2000 and 2004. In February 2008, the couple was granted a divorce with Mother as sole legal custodian of the children and Father retaining parenting time. In that the court proceeding, neither parent was deemed unfit. ¶3 In September 2010, Grandmother for visitation with her two grandsons. 1 petitioned Both Father and Mother Grandmother did not cite to the record in the opening brief as required by Arizona Rules of Civil Appellate Procedure 13(a)(4). We therefore rely on our own review of the record and on the answering brief s cited facts. See State Farm Mutual Auto Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, 963 P.2d 334, 336 n.1 (App. 1998). Failure to cite proper authority can constitute abandonment and waiver of a claim. See State v. Moody, 208 Ariz. 424, 452 n. 9, ¶ 101, 94 P.3d 1119, 1147 n. 9 (2004). Because we prefer to decide appeals on the merits, however, we choose in our discretion to address Grandmother s substantive arguments. 2 believed that visitation by children s best interests. Grandmother was not in the After an evidentiary hearing, the family court determined that grandparent visitation would not be in the children s best interests and denied Grandmother s petition in a signed order filed March 24, 2011 (hereinafter Order ). pursuant Grandmother timely appeals and we have jurisdiction to Arizona Revised Statute ( A.R.S. ) section 12- 2101(A) (Supp. 2011). ANALYSIS ¶4 only In describing the issue on appeal, Grandmother raises the question ( Grandparent of Visitation whether A.R.S. Statute ) is § 25-409 2 constitutional. (2007) As we understand her argument, she is arguing that the family court must have erroneously found the statute was unconstitutional because she was not granted any visitation with her grandsons. We will briefly address the constitutionality of the Grandparent Visitation Statute, and in considering the additional assertions in Grandmother s brief, we will also address whether the family court abused its discretion in denying Grandmother any visitation. 2 This section was recently amended by 2012 Ariz. Sess. Laws, ch. 309, § 20 (2d Reg. Sess.); however, the changes are not material to our analysis. 3 A.R.S. Section 25-409 Is Constitutional ¶5 We review issues of constitutional law de novo. Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 327, ¶ 6, 972 P.2d 658, 660 (App. 1998). We presume a statute to be constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions. Graville v. Dodge, 195 Ariz. 119, 123, ¶ 17, 985 P.2d 604, 608 (App. 1999). ¶6 In 2000 and 2001, this Court held that the Grandparent Visitation Statute is constitutional on its face, and concluded that the statute satisfies the due process concerns articulated by the United States Supreme Court. McGovern v. McGovern, 201 Ariz. 172, 177, ¶¶ 13-14, 33 P.3d 506, 511 (App. 2001) (citing Jackson v. Tangreen, 199 Ariz. 306, 310, ¶ 14, 314, ¶ 31, 18 P.3d 100, 104, 108 (App. 2000)). court clarified that by applying the Further, this statute as written, Arizona courts do not violate the Due Process Clause. Id. at 177, ¶ 13, 33 P.3d at 511; see also Egan v. Fridlund-Horne, 221 Ariz. 229, 233, ¶ 12, 211 P.3d 1213, 1217 (App. 2009) (recognizing validity of the Grandparent Visitation Statute by incorporating McGovern analysis in holding). ¶7 Grandmother Grandparent Visitation claims the Statute to 4 family be court held unconstitutional by the its Order. The family court, however, recognized and applied the Grandparent Visitation Statute as written. part: The Order states in A.R.S. § 25-409 provides that the Court may grant a grandparent s certain request for circumstances. visitation Grandmother with a in not identify any does grandchild evidence or portion of the record upon which she bases her claim that the Statute family to court be constitutionality considered the Grandparent unconstitutional. of the We Grandparent Visitation confirm Visitation the Statute and reject Grandmother s argument that the family court necessarily or implicitly ruled that the Grandparent Visitation Statute was unconstitutional. Simply because the court denied her requested visitation not does mean the court concluded that the Grandparent Visitation Statute was unconstitutional. The Evidence Supports the Family Court s Denial Of Grandmother s Visitation Petition ¶8 We reviewing apply the an family grandparent visitation. P.3d at 509. record, trial viewed court s abuse of court s discretion decision to standard grant or when deny McGovern, 201 Ariz. at 175, ¶ 6, 33 The family court abuses its discretion when the in the decision, support the decision. light most is devoid favorable of to upholding competent evidence the to Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (citation omitted). 5 ¶9 A family court may grant reasonable visitation rights to the grandparents of a child whose parents marriage has been dissolved for at least three months if the visitation to be in the child s best interests. 409(A). court finds A.R.S. § 25- Under these circumstances, the court shall consider all relevant factors to determine the best interests of the child, 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. A.R.S. § 25-409(C). ¶10 In making its determination under the Grandparent Visitation Statute, the family court is required to recognize and apply a rebuttable 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. McGovern, 201 Ariz. at 177, ¶ 17, 33 P.3d at 511. A fit parent s determination of whether 6 visitation is in the best interests of the child should be given special weight. ¶11 Id. at 177-78, ¶ 18, 33 P.3d at 511-12. Grandmother contends the family court abused its discretion by not considering the relevant factors in A.R.S. § 25-409(C). To the contrary, however, the family court documented its consideration of the relevant statutory factors within its Order, stating, [h]aving considered all relevant factors, including those set forth in A.R.S. § 25-409(C), the Court concludes rebutting the that Grandmother presumption. In has not met addition, the the burden family of court specifically found that Father and Mother are fit parents a finding previous that is divorce fully consistent proceeding. with Because the they outcome are fit of the parents, their determinations regarding visitation by family members and others, including Grandmother, are entitled to special weight and the rebuttable presumption. The evidence in the record supports the family court s decision that Grandmother did not meet her burden of rebutting the presumption, and we conclude that the court did not abuse its discretion. CONCLUSION ¶12 For court s As the ruling explained foregoing denying in the reasons, Grandmother s accompanying 7 we affirm petition opinion, we for the family visitation. grant Mother s request (by a 2 to 1 vote) for an amount of reasonable attorneys fees and costs on appeal. ______/s/________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/________________________ PETER B. SWANN, Judge ____/s/________________________ ANDREW W. GOULD, Judge 8

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