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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    GARY THOMAS, Petitioner/Appellant,

                                         v.

                 JESSICA CALDWELL, Respondent/Appellee.

                            No. 1 CA-CV 14-0673 FC
                                FILED 3-3-2016


            Appeal from the Superior Court in Maricopa County
                            No. FC2013-053488
             The Honorable Carey Snyder Hyatt, Judge Retired

                                   AFFIRMED


                                    COUNSEL

Law Office of Florence M. Bruemmer, PC, Anthem
By Florence M. Bruemmer
Counsel for Petitioner/Appellant

Vescio Law Firm, PC, Glendale
By Theresa L. Seifert
Counsel for Respondent/Appellee
                         THOMAS v. CALDWELL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1           Gary Thomas appeals from the superior court’s denial of his
motion for new trial.1 For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Gary Thomas and Jessica Caldwell have one child together,
M., and Caldwell has twin boys, J.P. and K.P., from her previous marriage.
After Thomas and Caldwell ended their relationship, Thomas filed a
petition in superior court to establish paternity, legal decision making,
parenting time, and child support relating to M., as well as in loco parentis
parenting time with the twins. Thomas subsequently dismissed his in loco
parentis claim, acknowledging he lacked standing to seek parenting time
with the twins.

¶3            Thomas and Caldwell thereafter entered into an agreement to
resolve Thomas’s petition. Along with addressing issues related to M., the
agreement provided (in Paragraph 12) that when Caldwell’s parenting time
with the twins and Thomas’s parenting time with M. overlapped, Caldwell
would make reasonable efforts to facilitate the twins spending time with
Thomas once a week. Additionally, Caldwell agreed that if she could not
care for the twins during her parenting time with them (and the twins’
biological father was unable to do so), she would “reasonably consider”
having Thomas care for them (the “Right of Second Refusal”).

¶4            Two months after the agreement was signed, Thomas filed a
contempt petition stating that he had not seen the twins in two months and
alleging that Caldwell had failed to make reasonable efforts to facilitate his
relationship with the twins. Caldwell denied the allegations.


1     Thomas’s opening brief also challenges the superior court’s order
denying his request for contempt sanctions. This court previously ruled
that we lack jurisdiction to address the contempt order. Thus, we restrict
our analysis to the denial of Thomas’s motion for new trial.

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                           Decision of the Court

¶5            The superior court held an evidentiary hearing in which
Thomas and Caldwell testified. The court then denied the contempt
petition, concluding that Thomas had unreasonably failed to facilitate his
own relationship with the twins. The court further ruled that Paragraph 12
of the agreement was unenforceable to the extent it required that the twins
spend time with Thomas while M. is with Thomas because that is when the
twins are with their biological father.

¶6            Thomas filed a motion for new trial, arguing that the ruling
was not justified by the evidence and was contrary to the law. See Ariz. R.
Fam. Law P. (“ARFLP”) 83(A)(6). The court denied the motion, and
Thomas timely appealed. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) § 12-2101(A)(5)(a).2

                               DISCUSSION

¶7            Thomas argues that the superior court improperly denied his
motion for new trial. He asserts that the court’s rulings improperly
modified his agreement with Caldwell in two ways: (1) by sua sponte
declaring Paragraph 12 to be unenforceable and (2) by finding that Thomas
could not have “alone time” with the twins unless Caldwell works more
than 12 hours and the twins’ biological father is unable to take them. We
review the denial of a motion for new trial for abuse of discretion. Kent v.
Carter-Kent, 235 Ariz. 309, 312, ¶ 13 (App. 2014).

I.     The Court Did Not Modify Paragraph 12.

¶8             Thomas’s assertion that the superior court improperly
modified the agreement fails because the court did not modify the
agreement and instead simply addressed the current enforceability of one
of its provisions.

¶9             The court correctly determined that Paragraph 12 cannot
currently be enforced because of limits set by the plain language of the
agreement, which provides that “[w]hen [Caldwell] has parenting time
with twin boys from a prior relationship . . . [Caldwell] will agree to
facilitate a continuing relationship using her reasonable efforts to facilitate
one boy per week spending time with [Thomas] when he has [M.].”
Because Thomas currently has parenting time with M. on Mondays and
Tuesdays and alternating weekends, these are the only days Caldwell can
facilitate the twins visiting Thomas while M. is with him. But Caldwell

2     Absent material revisions after the relevant date, we cite a statute’s
current version.

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                         THOMAS v. CALDWELL
                           Decision of the Court

testified that the twins’ biological father currently has parenting time with
them on Mondays, Tuesdays, and alternating weekends, an identical
schedule to Thomas’s parenting time with M. Because of this scheduling
conflict, there is currently no period during Caldwell’s parenting time when
she has the twins and Father has M. Thus, because Thomas has parenting
time with M. only during the twins’ biological father’s parenting time, the
superior court did not err by declining to enforce that aspect of Paragraph
12.3

¶10           Thomas further argues that the superior court’s declaration
that Paragraph 12 is unenforceable “essentially denied [him] any visitation”
with the twins and thus improperly modified the agreement. Thomas
argues that under ARFLP 91(F) and A.R.S. § 25-411, the superior court did
not follow the procedures necessary to change his visitation rights with the
twins.

¶11           But Thomas has not established a right to third party
visitation with the twins. See A.R.S. §§ 25-402(B)(2), -409. The only manner
in which a court has authority to grant visitation to a nonparent is under
A.R.S. § 25-409. See Sheets v. Mead, 238 Ariz. 55, 57, ¶ 7 (App. 2015)
(recognizing that the superior court’s authority to grant nonparent
visitation rights is “purely statutory” and governed by § 25-409); see also
Hughes v. Creighton, 165 Ariz. 265, 268 (App. 1990) (noting that parents can
preclude visitation by nonparents who do not have statutorily granted
rights to such visits). And Thomas abandoned his in loco parentis claim
before he and Caldwell reached their agreement.

¶12           Moreover, Thomas has not established that Caldwell
unreasonably prevented him from spending time with the twins. Despite
finding Paragraph 12 unenforceable, the court noted that Caldwell had in
fact made reasonable efforts to facilitate Thomas’s relationship with the
twins, and the court ordered her to continue doing so. The court further
found that Thomas was himself responsible to some extent for his lack of
time with the twins, a finding supported by the record. For example,
Thomas declined Caldwell’s invitation to attend the twins’ sporting
activities because he did not want to be with the twins if their biological




3       Although as a practical matter, Paragraph 12 is unenforceable at this
time, it may be enforceable in the future if, for example, parenting time is
modified such that M. is with Thomas when Caldwell has parenting time
with the twins.

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                          THOMAS v. CALDWELL
                            Decision of the Court

father was also going to be there. Thus, Thomas did not establish that
Caldwell violated the enforceable portions of Paragraph 12.

II.    The Court Did Not Modify the Right of Second Refusal.

¶13           Thomas also contends that the superior court modified the
Right of Second Refusal by ordering that he could not have time with the
twins unless Caldwell was working more than 12 hours, the twins’
biological father was unavailable to care for them, and Thomas was caring
for M.

¶14           In full, the Right of Second Refusal reads:

       Both parents will have the right of first refusal if either is
       unavailable to care for [M.] during his or her parenting time
       for a period of at least twelve (12) hours. [Caldwell] will use
       times she is not available and has only the boys to make sure
       the boys spend some time with [Thomas] and M. If [Caldwell]
       has parenting time with the twins, if she cannot care for them,
       and if the twins’ natural father is unable to care for the twins,
       [Caldwell] will reasonably consider using [Thomas] as the
       care provider.

At the hearing, Thomas asserted that Caldwell violated the Right of Second
Refusal because she began taking M. and the twins to the Boys and Girls
Club rather than letting them spend time with Thomas. But Caldwell
testified that she took the children to the Boys and Girls Club for less than
12 hours at a time when the children requested to go there to play with
friends, and that it served the additional purpose of being a potential back-
up care arrangement because her new job would require her to work an
hour and a half after the children were out of school.

¶15            Based on this testimony, the court reasonably concluded that
“the Boys and Girls Club Activity does not fall within the provision of the
[agreement] stated due to the fact that the activity is under a 12-hour period
and that it is an ‘activity’ which does not trigger the right of first or second
refusal.” Thus, Thomas did not establish that Caldwell violated the Right
of Second Refusal.

¶16          Because substantial evidence supports the superior court’s
findings and because the court did not impermissibly modify the
agreement, the court did not abuse its discretion by denying Thomas’s
motion for new trial.



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                          THOMAS v. CALDWELL
                            Decision of the Court

III.   Attorney’s Fees.

¶17            Both Thomas and Caldwell seek attorney’s fees and taxable
costs incurred on appeal. Having considered the statutory criteria, and in
an exercise of our discretion, the court denies Thomas’s request and awards
Caldwell her reasonable attorney’s fees and taxable costs pursuant to A.R.S.
§ 25-324(A), contingent upon her compliance with ARCAP 21.4 See
Thompson v. Corry, 231 Ariz. 161, 164, ¶ 10 (App. 2012) (holding that a court
may award fees for a pro bono attorney under A.R.S. § 25-324).

                              CONCLUSION

¶18        For the foregoing reasons, we affirm the court’s denial of
Thomas’s motion for new trial.




                                  :ama




4       In June 2015, this case was placed in the court’s Pro Bono
Representation Program, and pro bono counsel was appointed to represent
Caldwell in the appeal. “[T]he court usually will hear oral argument in
cases selected for the Program.” Arizona Court of Appeals Pro Bono
Representation Program Manual 1. Although oral argument had been
scheduled for this case, this court vacated oral argument after counsel for
Thomas withdrew in mid-January 2016, and after determining that the
briefs and record adequately presented the facts and legal arguments. See
ARCAP 18(b).

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