                                       IN THE
                  ARIZONA COURT OF APPEALS
                                     DIVISION ONE


                            LORI LEE SHEETS, Petitioner,

                                           v.

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

                             BONNY JEAN REYNOLDS,
                               Real Party in Interest.

                                 No. 1 CA-SA 15-0042
                                   FILED 8-25-2015


     Petition for Special Action from the Superior Court in Maricopa County
                                No. FC2014-071548
                     The Honorable Kathleen H. Mead, Judge

                JURISDICTION ACCEPTED; RELIEF GRANTED


                                      COUNSEL

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, J. Alexander Dattilo
Counsel for Petitioner

Mandel Young PLC, Phoenix
By Taylor C. Young
Counsel for Real Party in Interest
                      SHEETS v. HON. MEAD/REYNOLDS
                             Opinion of the Court



                                     OPINION

Judge Peter B. Swann delivered the opinion of the court, in which Presiding
Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


S W A N N, Judge:

¶1            Petitioner Lori Lee Sheets seeks relief from the superior court’s
order granting her former partner, Bonny Jean Reynolds, visitation with Sheets’
adopted child (“Child”) under A.R.S. § 25-409(C)(2). We accept special action
jurisdiction and grant relief because A.R.S. § 25-409(C)(2) authorizes the court to
award visitation to a nonparent only if the child is “born out of wedlock.” Child’s
adoption changed her legal status to that of a child born in wedlock, see A.R.S.
§ 8-117(A), and the superior court therefore erred by awarding Reynolds
visitation.

                     FACTS AND PROCEDURAL HISTORY

¶2           Sheets and Reynolds began a romantic relationship in 2000. In
2009, both women were approved as foster parents to two-year-old Child under
an adoption case plan. The parties intended to raise Child together, with both
acting as parents to Child, but they agreed that Sheets would be the adoptive
parent because at that time same-sex couples were legally prohibited from
marrying or adopting children together.

¶3            Sheets adopted Child in 2010. Soon thereafter, her relationship
with Reynolds ended. Reynolds continued to maintain a relationship with Child,
but, according to Reynolds, Sheets suddenly and arbitrarily stopped allowing her
to see Child in April 2014.

¶4             Reynolds petitioned the superior court for equal-time visitation
under A.R.S. § 25-409(C)(2), Sheets objected, and the matter proceeded to an
evidentiary hearing. The superior court awarded substantial visitation to
Reynolds, finding that “the Child was born or adopted out of wedlock; the
Child’s legal parents are not married to each other; and [Reynolds] has a long
term in loco parentis relationship with the Child,” and that “it is in the Child’s best
interest to have consistent and continuing visitation with [Reynolds].” The court
denied both parties’ requests for fees under A.R.S. § 25-324.




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                      SHEETS v. HON. MEAD/REYNOLDS
                             Opinion of the Court
¶5             Sheets filed a motion for new trial, which the court denied. Sheets
seeks relief by special action.1

                                 JURISDICTION

¶6            We accept jurisdiction. During the pendency of an appeal, Sheets’
parental rights would be impaired, and Child would face a prolonged period of
uncertainty concerning her living arrangement. Sheets therefore has no equally
plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a).
Special action jurisdiction is also appropriate because the issue presented is a
pure question of law. Vo v. Superior Court (State), 172 Ariz. 195, 198 (App. 1992).

                                  DISCUSSION

¶7           We grant relief because the superior court acted in excess of its
purely statutory authority under A.R.S. § 25-409 to grant nonparent visitation
rights. See Ariz. R.P. Spec. Act. 3(b); In re Maricopa Cnty. Juv. Act. No. JA-502394,
186 Ariz. 597, 599 (App. 1996). Because of the statutory limit on the courts’
authority, we are not permitted to engage in a best-interests analysis, and Sheets
has not premised her petition on such an analysis.

¶8           As an initial matter, Reynolds contends that Sheets waived the
issue of the court’s authority under A.R.S. § 25-409 by not raising it in the
superior-court proceedings. Sheets responds that the issue is one of subject
matter jurisdiction, which is not subject to waiver. See, e.g., Swichtenberg v.
Brimer, 171 Ariz. 77, 82 (App. 1991).

¶9              Though in the past courts have referred to “subject matter
jurisdiction” to describe their authority under a specific controlling statute, In re
Marriage of Thorn, 235 Ariz. 216, 220, ¶ 17 (App. 2014), “[i]n current usage, the
phrase ‘subject matter jurisdiction’ refers to a court’s statutory or constitutional
power to hear and determine a particular type of case,” State v. Maldonado, 223
Ariz. 309, 311, ¶ 14 (2010). Here, the court’s power to conduct visitation and
parenting time proceedings is provided by A.R.S. § 25-402, and § 25-409 simply
sets forth the substantive criteria that govern visitation petitions.

¶10          Still, this case presents an important question that is likely to recur
regarding the substantive scope of the courts’ statutory authority, and we are
required to give effect to the Legislature’s intent. See, e.g., Vega v. Sullivan, 199
Ariz. 504, 507, ¶ 8 (App. 2001) (“Our primary objective is to discern and give


1     Sheets also timely appealed the court’s order. On her motion, we stayed
the appeal pending resolution of this special action.



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                     SHEETS v. HON. MEAD/REYNOLDS
                            Opinion of the Court
effect to the intent of the legislature . . . .”). We conclude that the doctrine of
waiver cannot be appropriately applied in this circumstance and therefore
proceed to address the merits. See Standard Chartered PLC v. Price Waterhouse, 190
Ariz. 6, 39 (App. 1996).

I.    THE SUPERIOR COURT EXCEEDED ITS AUTHORITY UNDER A.R.S.
      § 25-409.

¶11            Under previous versions of what is now A.R.S. § 25-409, nonparent
visitation was limited to grandparents and great-grandparents. Finck v. O’Toole,
179 Ariz. 404, 407 (1994). In response to the supreme court’s recognition of this
limitation, “rather than simply adding step-parents and step-grandparents to the
classes of [nonparent] parties entitled to petition for visitation [under § 25-409],
the [1997] legislature enacted § 25-415(C).” Riepe v. Riepe, 208 Ariz. 90, 95, ¶ 21
(App. 2004). The new statute broadly provided that any “person” could petition
for visitation. A.R.S. § 25-415(C) (1997). It expressly required, however, that a
petitioner “meet the requirements of § 25-409.” A.R.S. § 25-415(C) (1997).

¶12           As had been the case since 1992, a person seeking nonparent
visitation must demonstrate that “[t]he child was born out of wedlock.” A.R.S.
§ 25-409(A)(3) (1997); 1992 Ariz. Sess. Laws, ch. 139, § 1 (2d Reg. Sess.) (adding
“born out of wedlock” requirement to § 25-409’s predecessor statute). In 2012,
the Legislature combined §§ 25-415 and 25-409 and modified the “born out of
wedlock” requirement to state: “[t]he child was born out of wedlock and the
child’s legal parents are not married to each other at the time the petition is
filed.” See 2012 Ariz. Sess. Laws, ch. 309, §§ 19, 20, 24, 25 (emphasis added). The
question in this case, therefore, is whether Child’s adoption meant that she was
not legally “born out of wedlock.”

¶13           Before A.R.S. § 25-415 was enacted, we considered whether the
requirement that a child be “born out of wedlock” could be satisfied after the
child was adopted.2 JA-502394, 186 Ariz. at 599. We held under A.R.S. § 8-
117(A) that it could not. Id. The version of § 8-117(A) in effect at that time was
substantially identical to the version currently in effect, which provides that
“[o]n entry of the decree of adoption, the relationship of parent and child and all
the legal rights, privileges, duties, obligations and other legal consequences of
the natural relationship of child and parent thereafter exist between the adopted
child and the adoptive parent as though the child were born to the adoptive
parent in lawful wedlock.” (emphasis added). We held that though adoption
cannot change the physiological fact that a child was born to unmarried parents,

2     The statute currently codified as A.R.S. § 25-415 addresses a subject not
relevant to this case.



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                      SHEETS v. HON. MEAD/REYNOLDS
                             Opinion of the Court
“the statute does effectively mandate that, after adoption and ever after, the child
is indeed, before the law, born within ‘lawful wedlock.’” JA-502394, 186 Ariz. at
599 & n.3.

¶14           We agree with the interpretation of § 8-117(A) in JA-502394.
Reynolds’ contention that § 8-117(A) is limited to inheritance issues is contrary to
the statute’s plain language. The statute broadly provides that an adoption will
affect “all the legal rights, privileges, duties, obligations and other legal
consequences of the natural relationship of child and parent.” A.R.S. § 8-117(A)
(emphasis added).3

¶15            We presume that the Legislature was aware of our decision in JA-
502394 when it broadened the category of persons who could petition for
nonparent visitation by enacting § 25-415, and when it later combined that
statute with § 25-409 and added the requirement regarding current marital status.
See State v. Bonillas, 197 Ariz. 96, 97, ¶ 5 (App. 1999). We therefore infer that the
Legislature intended the courts to continue construing the “born out of wedlock”
requirement in accordance with § 8-117(A) and JA-502394. See id. at 98, ¶ 6.

¶16           We hold that a child who is adopted before a visitation petition is
filed is not eligible for nonparent visitation under § 25-409(C)(2). See Fry v.
Garcia, 213 Ariz. 70, 72-73, ¶¶ 8-12 (App. 2006) (holding that marriage of parents
of child born out of wedlock did not divest court of jurisdiction under § 25-409 to
consider grandparents’ pending petition for visitation because, inter alia,
“‘jurisdiction is established at the time of filing of the lawsuit and cannot be
ousted by subsequent actions or events’” (citation omitted)). Because Sheets
adopted Child before the visitation dispute arose, the court had no authority to
award visitation to Reynolds under § 25-409(C)(2).

¶17           We recognize that § 25-409(C)(2)’s requirements may lead to
counterintuitive results. By requiring that the child be born in wedlock, the

3      We also find unavailing Reynolds’ contention that § 8-117(A)’s application
renders § 25-409 inoperative. Reynolds argues that if the legal fiction created by
§ 8-117(A) applies to § 25-409, then § 25-1401 must also apply, which would
result in all out-of-wedlock children being treated as in-wedlock children, such
that nonparent visitation could never be granted under § 25-409(C)(2). Reynolds
misconstrues § 25-1401. That statute provides: “Every child is the legitimate
child of its natural parents and is entitled to support and education as if born in
natural wedlock.” Unlike § 8-117(A), § 25-1401 does not legally change a child’s
birth status. It merely provides that all parents are obligated to support their
children, regardless of whether they were married when the children were born.




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                     SHEETS v. HON. MEAD/REYNOLDS
                            Opinion of the Court
statute may treat similarly situated families differently. For example, divorced
parents of a biological child have superior rights if they marry before their child
was born rather than after birth, even though in both circumstances the child
experienced the failure of the parents’ marriage. And rights of divorced
biological parents who sought dissolution around the time of their child’s birth
will depend on whether the dissolution was pending or concluded by the time of
the birth, though in both circumstances the child was born into a failed marriage.
Nonetheless, the Legislature has decided to ascribe importance to the marital
status of a child’s biological parents at the time of birth, and we are bound by the
statutes it enacts. Similarly, the Legislature has made an understandable
decision to ensure that adoptive parents enjoy a status equal to that of biological
parents.

II.   THE SUPERIOR COURT ACTED WITHIN ITS DISCRETION BY
      DENYING SHEETS’ REQUEST FOR ATTORNEY’S FEES.

¶18           Sheets contends that the superior court’s denial of her request for
attorney’s fees was error. The parties did not argue the issue of the court’s
statutory authority in the proceedings below. Accordingly, the court’s ruling on
fees was based on its findings regarding the disparity in the parties’ financial
resources and the reasonableness of Sheets’ position that Reynolds did not have
an in loco parentis relationship with Child. We discern no abuse of discretion in
the court’s analysis and conclusion that neither party was entitled to fees.

                                 CONCLUSION

¶19            For the foregoing reasons, we accept jurisdiction and grant relief.
In exercise of our discretion, we deny Sheets’ request for her fees in this special
action under A.R.S. § 25-324.




                                     :ama




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