                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


        MATTHEW BOWLES and BECKY HAWK-BOWLES, et al.,
                    Petitioners/Appellees,

                                         v.

               BRITTANY TRZNADEL, Respondent/Appellant.

                            No. 1 CA-CV 18-0006 FC
                                 FILED 5-28-2019


          Appeal from the Superior Court in Coconino County
       Nos. S0300DO201500189; S0300DO201600358 (Consolidated)
              The Honorable Elaine Fridlund-Horne, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Catherine Fine, Attorney at Law, Flagstaff
By Catherine Fine
Counsel for Petitioner/Appellee Grandparents

Bryon Middlebrook, P.C., Flagstaff
By Bryon Middlebrook
Counsel for Respondent/Appellant Mother
                      BOWLES, et al. v. TRZNADEL
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.


B E E N E, Judge:

¶1           Brittany Trznadel (“Mother”) appeals the superior court’s
order establishing unsupervised visitations between her children and
paternal grandparents, Matthew Bowles and Becky Hawk-Bowles
(“Grandparents”). For the following reasons, we vacate the court’s order
and remand for further proceedings consistent with this decision.

                FACTS AND PROCEDURAL HISTORY

¶2             Mother and Jesse Bowles (“Father”) had two children in
common during their marriage: N.G. Trznadel-Bowles (“N.T.”) born in
December 2008 and J.E.S. Trznadel-Bowles (“J.T.”) born in July 2011
(“Children”). In 2015, Father physically abused Mother’s third child, born
in December 2014 to a different father. As a result of this incident, Father
pled guilty to attempted child abuse and received a 13-year prison sentence.

¶3            Mother and Father divorced in January 2016 and Mother was
granted sole decision-making authority in April 2018 with Father having no
parenting time until an assessment regarding appropriate parenting time
could be conducted upon his release from prison.

¶4             Approximately six months before Father’s arrest, Mother and
Father entered into a written agreement declaring that “[Father] and
[Mother] agreed that [Father]’s parents [Grandparents] will not provide
childcare and that they will not be left alone with the children without
[Father] present” (“Agreement”).         Father never testified regarding
Grandparents’ requested visitation, the Agreement, or otherwise, having
asserted his Fifth Amendment right against self-incrimination, although
Father’s attorney stated on the record in this case that Father supported his
parents having visitation with the Children. In August 2017, Mother
testified that she opposed the Grandparents’ visitation request because she
did not believe it was in the Children’s best interests.

¶5         In January 2017 and August 2017, the superior court
conducted a trial, during which several witnesses testified: both


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                       BOWLES, et al. v. TRZNADEL
                          Decision of the Court

Grandparents; their son, James Bowles; N.T.’s psychological counselor,
Kim Kalas; maternal grandmother, Heather Christopher; and Mother. In
October 2017, the court awarded Grandparents supervised visitation “twice
per month for two hours each visit” with the Children and expressly stated
the court needed “more evidence to make a determination as to whether or
not ongoing visitation should occur and how frequently and under what
conditions.” (Emphasis in original.) After the court denied Mother’s
motion to reconsider, she timely appealed in February 2018.

¶6            During an April 2018 review hearing, Grandparents
requested a change in the visitation schedule. In June 2018, the court held
an evidentiary hearing regarding the progress of Grandparents’ supervised
visitation. Although present at the hearing, Mother chose not to testify or
present any evidence.1 In July 2018, the court issued a new ruling, granting
Grandparents regular unsupervised visitation, and significantly increasing
the amount of visitation time. The court also concluded that Father’s
opinion on Grandparents’ visitation “should be given ‘special weight.’”
Mother filed a second motion for reconsideration, and we stayed this
appeal until that motion’s resolution. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶7            Mother argues the superior court erred by awarding
Grandparents visitation without 1) making a finding that Grandparents’
visitation was in the Children’s best interests; 2) giving “special weight” to

1      In her supplemental appellate brief, Mother argues the superior
court failed to provide her with adequate notice that the court would
substantially modify its October 2017 award of visitation time, instead of
merely considering whether visitation would become unsupervised.
Because Mother failed to argue this issue at the superior court, she waived
this argument on appeal. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503
(1987) (“[A]n appellate court will not consider issues not raised in the trial
court.”); Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC,
227 Ariz. 382, 386, ¶ 12 (App. 2011) (same). The record reveals, however,
that the court set a review hearing to “discuss additional visitation and
whether or not it will continue to be supervised.” At that review hearing,
Mother’s counsel requested an additional evidentiary hearing regarding
the change in the visitation schedule, which was conducted in June 2018
and at which Mother appeared. Mother thus had adequate notice that
modification of the visitation schedule was at issue.


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                           Decision of the Court

Mother’s position while erroneously affording “special weight” to Father’s
position; 3) making necessary findings pursuant to A.R.S. § 25-409(E); and
4) considering Mother’s constitutional right to raise her children as she
deemed appropriate.

¶8             We review a superior court’s decision to grant or deny
visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172,
175, ¶ 6 (App. 2001). A court abuses its discretion when it commits an error
of law or fails to consider evidence in reaching a discretionary conclusion
or if, upon review, “the record fails to provide substantial evidence to
support the trial court’s finding.” Flying Diamond Airpark, LLC. v. Meienberg,
215 Ariz. 44, 50, ¶ 27 (App. 2007) (citation omitted). “We defer to a trial
court’s factual findings, so long as they are supported by substantial
evidence, but we review any issues of law de novo.” Sw. Soil Remediation,
Inc. v. City of Tucson, 201 Ariz. 438, 442, ¶ 12 (App. 2001). “We view the
record in the light most favorable to supporting the family court’s visitation
order.” In re the Marriage of Friedman, 244 Ariz. 111, 113, ¶ 2 (2018).

       I.      The Superior Court Failed to Find that Grandparents’
               Visitation Was in the Best Interests of the Children.

¶9             Mother argues the superior court abused its discretion by
failing to expressly find Grandparents’ visitation was in the Children’s best
interests. We agree.

¶10           “[P]arents have a constitutionally protected right under the
Fourteenth Amendment to raise their children as they see fit.” McGovern,
201 Ariz. at 175, ¶ 9 (quotation omitted); see also Troxel v. Granville, 530 U.S.
57, 65–66 (2000). Grandparent visitation granted within the parameters of
A.R.S. § 25-409, however, “does not substantially infringe on parents’
fundamental rights.” McGovern, 201 Ariz. at 175, ¶ 9 (citation omitted). In
Arizona, “[t]he superior court may grant visitation rights during the child’s
minority on a finding that the visitation is in the child’s best interests . . . .”
A.R.S. § 25-409(C)(emphasis added).

¶11            None of the superior court’s orders contain the statutorily
required best-interests findings. Because of this error, the court abused its
discretion. We therefore vacate the court orders and remand for a best-
interests finding pursuant to § 25-409. See Meienberg, 215 Ariz. at 50, ¶ 27.




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                       BOWLES, et al. v. TRZNADEL
                          Decision of the Court

       II.    The Superior Court Failed to Afford Mother’s Opinion Any
              Special Weight and Erroneously Afforded Special Weight
              to Father’s Opinion.

¶12           Mother further contends the superior court abused its
discretion by failing to give her decision to oppose Grandparents’ visitation
some “special weight,” while erroneously affording “special weight” to
Father’s opinion. We agree.

¶13            “In 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); McGovern, 201 Ariz. at
177–78, ¶ 18 (stressing that courts must “give ‘some special weight’ to a fit
parent’s determination of whether visitation is in the child’s best interest”)
(quoting Troxel, 530 U.S. at 70). Although this statute does not define
“special weight,” the legislature “quite clearly intended to incorporate
Troxel’s ‘special weight’ component into the visitation analysis[, so] . . . we
interpret Arizona’s statutory phrase in line with Troxel” and McGovern. In
re the Marriage of Friedman, 244 Ariz. at 116, ¶ 20; see also Troxel, 530 U.S. at
70. Troxel, however, left the issue of the “amount of weight” a superior
court should place on these factors “for development on a case-by-case
basis.” In re the Marriage of Friedman, 244 Ariz. at 116–17, ¶¶ 16, 20 (quoting
McGovern, 201 Ariz. at 177–78, ¶ 18).

¶14            Here, Mother and Father are the legal parents of the Children
and their opinions regarding Grandparents’ requested visitation are
entitled to some “special weight.” See In re the Marriage of Friedman, 244
Ariz. at 117, ¶ 22 (holding that each legal parent’s “opinions on visitation is
entitled to ‘special weight’”); A.R.S. § 25-409(E). The court, however, did
not indicate whether it placed “special weight” on Mother’s position
regarding Grandparents’ requested visitation.

¶15           Moreover, while adopting Father’s proposed findings of facts
and conclusions of law, the court made a finding that “Father supports the
request for the paternal grandparents to have visitation with his children.”
Father, however, never testified to that statement, although he appeared
during the January 2017 evidentiary hearing and was represented by
counsel. Father did not submit any admissible evidence as to whether he
approved of Grandparents’ requested visitation. Because the record
contains no admissible evidence regarding Father’s position on this issue,
the court abused its discretion by adopting unsupported findings. See Boyle
v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012) (“A family court abuses its




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                       BOWLES, et al. v. TRZNADEL
                          Decision of the Court

discretion by . . . making a discretionary ruling that the record does not
support.”); Meienberg, 215 Ariz. at 50, ¶ 27.

¶16           Mother’s position on Grandparents’ visitation was entitled to
be afforded “special weight” according to Troxel, 530 U.S. at 70, and
McGovern, 201 Ariz. at 177–78, ¶ 18. See In re the Marriage of Friedman, 244
Ariz. at 117, ¶ 22. But the superior court failed to consider Mother’s
position as such, while incorrectly affording “special weight” to Father’s
position. Therefore, we vacate the court’s orders and remand for further
proceedings consistent with this decision.

       III.   Sufficient Evidence Did Not Support the Court’s Findings
              and the Court Failed to Make Findings Pursuant to A.R.S.
              § 25-409(E).

¶17            Mother further argues the court lacked sufficient evidence
1) to award Grandparents supervised visitation in October 2017;2 2) to
consider § 25-409(E)’s factors and make pertinent findings on the record; 3)
to modify the visitation order in July 2018, when it significantly expanded
the initially awarded visitation time; and 4) to award Grandparents
visitation that was not “minimally intrusive.”

¶18           The third-party rights statute “prescribes a non-exhaustive
list of relevant factors the court shall consider” in making its visitation
order. In re the Marriage of Friedman, 244 Ariz. at 115, ¶ 12 (quotation
omitted) (emphasis added); see also A.R.S. § 25-409(C), (E) (mandating that
“the court shall . . . consider all relevant factors including: . . .”) (emphasis
added); McGovern, 201 Ariz. at 177, ¶ 15. The superior “court’s findings of
fact satisfy Arizona law if they are pertinent to the issues and
comprehensive enough to provide a basis for the decision.” Miller v. Bd. of
Sup’rs of Pinal Cty., 175 Ariz. 296, 299 (1993) (quotation omitted). To
“effectively review the [subsequent] decision-making process of the trial
court,” we need the court to explain “how [it] actually arrived at its
conclusion.” Id. (citation and quotation omitted).

¶19           Here, the court described the evidence it received and made
findings of fact. But in none of its orders, nor on the record, did the court

2     Because the court held an additional evidentiary hearing in June
2018, we find this argument moot. See Arpaio v. Maricopa Cty. Bd. of
Supervisors, 225 Ariz. 358, 361, ¶ 7 (App. 2010) (holding that an issue
“becomes moot when an event occurs which would cause the outcome of
the appeal to have no practical effect on the parties”).



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                       BOWLES, et al. v. TRZNADEL
                          Decision of the Court

describe which statutory, or other, factors it considered, how it applied the
facts to the statutory factors, or how it arrived at its conclusions, even
though § 25-409(E) expressly requires the court make these considerations.
Because the court failed to indicate whether and how it applied
§ 25-409(E)’s factors, it abused its discretion. See Meienberg, 215 Ariz. at 50,
¶ 27; Miller, 175 Ariz. at 299; see also Gutierrez v. Fox, 242 Ariz. 259, 267–68,
¶ 34 (App. 2017) (making statutorily-required findings and revealing the
court’s reasoning, on the record, aids the appellant, the reviewing court,
and all parties “in determining the best interests of the child or children
both currently and in the future”) (quotation omitted).

¶20            Further, § 25-409(E)(4) prescribes that the court shall consider
“[t]he quantity of visitation time requested and the potential adverse
impact that visitation will have on the child’s customary activities.”
Additionally, the visitation awarded “must be as minimally intrusive as
possible,” especially since the statute “is structured to enable the [superior]
court to make grandparent visitation a minimal burden on the rights of the
child’s parents.” McGovern, 201 Ariz. at 177, ¶ 16 (citation omitted).
Moreover, one of the factors to consider under § 25-409 is “a parent’s
willingness to allow some visitation.” Id. at 179, ¶ 24 (citing Troxel, 530 U.S.
at 71). The superior court must consider and give “‘significant weight’ to a
parent’s voluntary agreement to some visitation, albeit not as much
visitation as the grandparent desires.” Id. at 178, ¶ 18 (emphasis added).
Inversely, “the statute permits the court to grant ‘reasonable [grandparent]
visitation rights,’ which may vary from those agreed to or urged by the
parent.” Id. at 179, ¶ 24 (citing A.R.S. § 25-409(A)).

¶21           In October 2017, after a two-day trial in January and August
2017, the court ruled it needed “more evidence to make a determination as
to whether or not ongoing visitation should occur and how frequently and
under what conditions.” (Emphasis in original.) In June 2018, the court
held an evidentiary hearing, at which it admitted a report regarding
Grandparents’ supervised visitation and considered the supervisor’s
testimony. The court, however, heard no additional evidence regarding the
Children’s schedule of customary activities. See A.R.S. § 25-409(E)(4). Yet,
in its July 2018 order, the court significantly increased Grandparents’
visitation time with the Children, affirming the same in September 2018,
while the Children’s schedules changed with a new school year, as
indicated during the August 2017 trial. The record provides no evidence
that the July 2018 order was minimally intrusive in its visitation time
expansion and schedule. See McGovern, 201 Ariz. at 177, ¶ 16.




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                      BOWLES, et al. v. TRZNADEL
                         Decision of the Court

¶22           We therefore remand for the superior court to make the
necessary findings pursuant to § 25-409 regarding the Children’s current
schedule, consider Mother’s proposal for Grandparents’ visitation with the
Children, see McGovern, 201 Ariz. at 177–78, 179, ¶¶ 18, 24, and evaluate any
other relevant consideration, including whether its orders are minimally
intrusive.

      IV.    Attorneys’ Fees on Appeal.

¶23           Mother requests that we award her attorneys’ fees and costs
incurred on appeal pursuant to A.R.S. § 25-324. Because neither party
advanced an unreasonable position on appeal and the parties’ financial
resources were not disclosed to us, in the exercise of our discretion, we
decline to award Mother her attorneys’ fees. Mother, however, is entitled
to recover her costs on appeal pursuant to A.R.S. § 12-342 upon compliance
with Arizona Rules of Civil Appellate Procedure 21.

                              CONCLUSION

¶24          For the foregoing reasons, we vacate the superior court orders
issued in October 2017, July 2018, and September 2018, and remand to the
superior court to afford Mother’s visitation position some “special weight,”
make best-interests finding on the record, make findings pertaining to the
factors found in A.R.S. § 25-409(C) and (E), and any other relevant
consideration, including whether its orders are minimally intrusive.




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




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