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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CAROLYN MORGAN, Petitioner/Appellant,

v.

IMAN ALI and KAYSAN MORGAN, Respondents/Appellees.

No. 1 CA-CV 16-0580 FC

Appeal from the Superior Court in Maricopa County

No. FC2015-001663

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Cantor Law Group, P.L.L.C., Phoenix

By Nicholas Boca

Counsel for Petitioner/Appellant
MORGAN v. ALI, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Kenton D. Jones and Judge Patricia K. Norris1 joined.

W I N T H R O P, Judge:

¶1 Carolyn Morgan (“Appellant”) appeals the family court’s 

dismissal of her petition for grandparent visitation. Appellant argues the 

family court abused its discretion in sua sponte dismissing her petition

without prejudice and that the dismissal violates her due process rights. 

Because we do not have jurisdiction over Appellant’s appeal, we dismiss it.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant is the biological mother of Kaysan Morgan 

(“Father”). Father has three children with Iman Ali (“Mother”). The three 

children, in addition to Father’s son from a previous relationship, live with 

Father and Mother.

¶3 In November 2015, Appellant filed a petition for grandparent 

visitation pursuant to Arizona Revised Statutes (“A.R.S.”) § 25-409(C)(2)

(2017),

2 seeking visitation rights to Father’s three children with Mother.3 At 

the time Appellant filed her petition, Father and Mother were not legally 

married. Appellant argued visitation was in the children’s best interests 

because Appellant “ha[d] been an important part of the [] children’s lives” 

 

1 The Honorable Patricia K. Norris, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.

2 “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 . . . [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.” A.R.S. § 25-

409(C)(2).

3 Appellant’s visitation rights to Father’s child from the previous 

relationship are not at issue in this appeal.
MORGAN v. ALI, et al.

Decision of the Court

3

and because Appellant hoped “to provide a loving extended family 

environment for the [] children.” Appellant further contended that Mother 

and Father were denying her visitation rights “because of Mother’s strained 

relationship with [Appellant].” Mother and Father responded, opposing 

Appellant’s petition.

¶4 At a hearing on Appellant’s petition, Father advised the court 

that he and Mother were legally married on December 2, 2015, and made 

an oral motion to dismiss Appellant’s petition for lack of jurisdiction.4 The 

court denied Father’s motion, citing Fry v. Garcia, 213 Ariz. 70, 138 P.3d 1197

(App. 2006) and stating that “the trial court has jurisdiction to consider a 

visitation petition filed when the parents were not married even if the 

parents subsequently wed.”5 The court later set the matter for trial.

¶5 Before trial, Appellant moved to vacate trial and stay 

proceedings, explaining that she had filed a private dependency petition 

“for the safety of the minor children” and requesting the court vacate the 

trial and stay the resolution of the merits of her visitation request pending 

resolution of the dependency action. The court vacated the trial and 

dismissed the visitation petition. Appellant moved for reconsideration of 

the dismissal, and the court denied that motion, clarifying that the dismissal 

was without prejudice. Appellant timely appealed.6

 

4 Although Appellant has not provided us with the transcript from 

that hearing, the court’s subsequent ruling indicates that Father argued the 

court no longer had jurisdiction under A.R.S. § 25-409(C)(2) because Mother 

and Father had married.

5 In Fry, the court did not hold that the grandparent’s entitlement to 

visitation under § 25-409(C)(2) was preserved notwithstanding the parents’ 

subsequent marriage, but only that the court had subject matter jurisdiction 

to hear and resolve that request. 213 Ariz. at 73, ¶ 12, 138 P.3d at 1200.

6 Neither Mother nor Father filed an answering brief. Although we 

could treat their failure to respond as confessions of error, in our discretion, 

we decline to do so. See McDowell Mountain Ranch Cmty. Ass’n, Inc. v. 

Simons, 216 Ariz. 266, 269, 165 P.3d 667, 670 (App. 2007) (citing Nydam v. 

Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994)).
MORGAN v. ALI, et al.

Decision of the Court

4

ANALYSIS

¶6 “A dismissal without prejudice is not a final judgment and is 

therefore generally not appealable.” Canyon Ambulatory Surgery Ctr. v. SCF 

Ariz., 225 Ariz. 414, 418-19, ¶ 14, 239 P.3d 733, 737-38 (App. 2010). However, 

A.R.S. § 12-2101(A)(3) (2016) provides that an appeal may be taken “[f]rom 

any order affecting a substantial right made in any action when the order 

in effect determines the action and prevents judgment from which an 

appeal might be taken.”

¶7 Appellant acknowledges that the family court’s dismissal was 

without prejudice. Nevertheless, she contends that the effect of the court’s 

order is final because, now that Mother and Father are married, she is 

precluded from refiling her claim for grandparent visitation under A.R.S. 

§ 25-409(C)(2). Appellant concludes, therefore, that the family court’s 

dismissal without prejudice is an appealable order that this court has 

jurisdiction to consider.7 But the family court’s dismissal without prejudice 

has not “determine[d] the action” in this case because although Appellant 

may not currently qualify under A.R.S. § 25-409(C)(2), she may qualify at 

some point in the future under that subsection or a different one.

¶8 Finally, the family court dismissed Appellant’s petition after 

Appellant disclosed that she had initiated a private dependency action in 

the juvenile court involving the three children. Neither the record on 

appeal nor Appellant’s opening brief provide us with any information 

pertaining to the status of that dependency action, but we are entitled to 

assume the family court’s decision to dismiss the petition without prejudice 

was, in part, to avoid issuing any orders that might conflict with any

determinations of the juvenile court in its consideration of the dependency 

action.

8 See A.R.S. § 8-202(F) (Supp. 2016) (stating that orders of the juvenile 

 

7 Appellant seems to believe that, even assuming her visitation 

petition was still pending, the family court could and would ignore the fact 

of the parents’ marriage and the express requirements of the statutory 

provision upon which Appellant relies to qualify for visitation rights. That 

is incorrect. In short, regardless of whether the visitation petition was 

dismissed or stayed, the facts do not support any suggestion that Appellant 

had a substantive right to seek visitation under § 25-409(C)(2) once the 

parents married.

8 A.R.S. § 8-842(B)(2) (2014) provides that, during dependency 

proceedings, the juvenile court must “[d]etermine that [DCS] is attempting 
MORGAN v. ALI, et al.

Decision of the Court

5

court “take precedence over any order of any other court of this state except 

the court of appeals and the supreme court to the extent that they are 

inconsistent with orders of other courts”).

¶9 Because Appellant’s contention that she will be barred from 

refiling her claim is speculative and insufficient to show that the family 

court’s dismissal without prejudice “affect[ed] a substantial right,” the 

family court’s order in this case is not an appealable order as contemplated 

by A.R.S. § 12-2101(A)(3).9 Accordingly, we do not have jurisdiction over 

Appellant’s appeal.

CONCLUSION

¶10 Appellant’s appeal is dismissed.

 

to identify and assess placement of the child with a grandparent or another 

member of the child’s extended family . . . .” Thus, in the event that 

Appellant’s allegations were substantiated and DCS became involved in the 

dependency proceedings, Appellant could qualify as a placement for the 

children.

9 Although this court can invoke its special action jurisdiction 

“without regard to its appellate jurisdiction,” in the exercise of our 

discretion, we decline to do so in this case. See A.R.S. § 12-120.21(A)(4) 

(2016).