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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CURTIS COGHILL, Petitioner/Appellant, 

v.

BREANNA MOWRY, Respondent/Appellee. 

No. 1 CA-CV 18-0038 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-008210 

The Honorable Dewain D. Fox, Judge

REVERSED AND REMANDED 

COUNSEL

Gary J. Frank, P.C., Phoenix

By Gary J. Frank 

and

Stanley David Murray, Scottsdale

Co-counsel for Petitioner/Appellant 

FILED 10-2-2018
COGHILL v. MOWRY 

Decision of the Court

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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop 

joined.

T H O M P S O N, Judge:

¶1 Appellant Curtis Coghill appeals from the trial court’s order 

denying his petition to establish grandparent visitation. For the following 

reasons, we reverse and remand to the trial court for further proceedings 

consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 Breanna Mowry (mother) gave birth to her daughter Kierra in 

January 2013. Curtis Coghill (Curtis) is the father of Joel Coghill (Joel), who 

died in August 2013. Mother listed Joel as Kierra’s father on Kierra’s birth 

certificate, and mother and Joel held Joel out as Kierra’s father. The two 

were not married, and in May 2013 mother and Joel separated and Joel 

moved in with Curtis. Joel continued to take care of Kierra during the day 

in Curtis’s home, sometimes with Curtis’s assistance. 

¶3 After Joel’s death, mother applied for and began receiving 

social security survivor’s benefits for Kierra. Curtis set up a bank account 

to provide financial assistance for Kierra, and in August 2014 mother and 

Kierra moved in to Curtis’s home, rent free. Mother was attending school 

and working, and Curtis often took care of Kierra. He picked her up from 

preschool and frequently watched Kierra at night and on the weekends. 

Curtis fed Kierra, clothed her, bathed her, did her laundry, read to her, took 

care of her when she was sick, took her to family celebrations, and played 

with her. Mother and Kierra lived with Curtis for over a year and a half

until they moved out in April 2016. 

¶4 In March 2016, Curtis and mother got into an argument about 

her boyfriend (now husband) Bruce who was not welcome in Curtis’s 

home. Mother threatened to keep Curtis from seeing Kierra. In June 2016, 

mother brought Kierra over to visit Curtis for several hours, and warned 

him not to post anything about the visit on Facebook because she did not 

want Bruce to find out that she had brought Kierra to see Curtis. After this 
COGHILL v. MOWRY 

Decision of the Court

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visit, mother and Kierra had no further contact with Curtis. In her 

deposition, mother stated that Bruce was a factor in her decision to cut 

Kierra off from Curtis and the Coghill family.

¶5 In September 2016, Curtis filed a petition to establish 

grandparent visitation with Kierra. In her response, mother alleged, among 

other things, that Joel was not Kierra’s father, that Curtis had a drinking 

problem and had made unwanted romantic advances toward her, and that 

Curtis had spoken to Kierra about Joel being in heaven against her express 

wishes. Mother requested an order of protection and a court-ordered DNA 

test. The trial court denied mother’s request for a DNA test, finding that 

she had not established good cause to order the testing and that her request 

was untimely. 

¶6 After a bench trial, the trial court first found that Kierra’s birth 

certificate with Joel’s name on it established his paternity “with the force 

and effect of a superior court judgment,” and therefore Curtis was Kierra’s 

paternal grandfather. See Gutierrez v. Fox, 242 Ariz. 259 (App. 2017). 

Second, the court found that one of Kierra’s legal parents was deceased, she 

was born out of wedlock, and her legal parents were not married at the time 

the visitation petition was filed. These findings established the threshold 

requirement of the third-party visitation statute. See Ariz. Rev. Stat. (A.R.S.) 

§ 25-409(C)(1), (2). The court then considered all of the factors enumerated 

in A.R.S. § 25-409(E), which provides:

E. 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 and consider all relevant 

factors including:

1. The historical relationship, if any, between 

the child and the person seeking visitation.

2. The motivation of the requesting party 

seeking visitation.

3. The motivation of the person objecting to the 

visitation.

4. The quantity of visitation time requested and 

the potential adverse impact that visitation will 

have on the child’s customary activities.
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5. If one or both of the child’s parents are 

deceased, the benefit in maintaining an 

extended family relationship.

As to factor one, the court found that Kierra, who was four at the time of 

the hearing, had lived with Curtis (along with mother) for over a year and 

a half, and that mother admitted at trial that Curtis “did a lot” for Kierra 

and often cared for her, including taking care of her overnight and for an 

extended period when she went out of town. Further, the court found that 

mother admitted that Curtis and Kierra had a good relationship. As to the 

second statutory factor, the court found that Curtis’s motivation in seeking 

visitation with Kierra was that he loved and cared for her, that he believed 

she saw him as her grandfather and caretaker and was concerned that she 

would feel abandoned by his removal from her life. As to the third factor, 

regarding mother’s motivation in denying Curtis visitation, the court 

found:

Mother failed to present credible evidence that: 

(i) [Curtis] made “flirtatious or romantic-type 

statements” to her while she lived in [Curtis’s] 

home; (ii) [Curtis] purchased inappropriate 

attire for her; or (iii) the child was traumatized 

by [Curtis’s] statements regarding Father being 

in Heaven and looking down on her. Moreover, 

the Court does not believe any of Mother’s 

excuses for denying [Curtis] visitation with the 

child. Mother’s true motive in denying [Curtis] 

visitation with the child is that she remarried, 

her new husband does not like [Curtis] and she 

wants her new husband to take on the role of 

the child’s father. 

As to factor four, the court found that “Mother did not present any credible 

evidence that the time requested by [Curtis] would interfere with or cause 

an adverse impact on the child’s customary activities.”1 Finally, with 

regard to the fifth statutory factor, the trial court found:

 

1 Curtis sought visitation with Kierra as follows: 1) one weekend per month, 

2) one weekend day per month, 3) one week during Kierra’s summer 

vacation each year, and 4) visitation including an overnight on December

24 or December 25. 
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Father is deceased. Following Father’s death, 

[Curtis] was actively involved in the child’s life 

until Mother stopped all contact on June 11, 

2016. Prior to termination of contact, [Kierra] 

regularly interacted with Father’s family 

through [Curtis]. If [Curtis] is denied visitation, 

[Kierra] will have no contact with Father’s 

family. [Kierra] will benefit from maintaining 

contact with Father’s family.

Despite these findings, the trial court denied Curtis’s petition for 

grandparent visitation, concluding that he did not meet his “substantial 

burden” of showing that “denial of visitation would clearly and 

substantially impair [Kierra’s best] interests” to rebut Mother’s opinion on 

visitation, which the court gave “robust deference” to as required by 

Goodman v. Forsen, 239 Ariz. 110 (App. 2016), disavowed by In re Marriage of 

Friedman and Roels, 244 Ariz. 111 (2018). 

¶7 Curtis filed a motion for new trial, which the trial court 

denied. Curtis timely appealed. We have jurisdiction pursuant to Arizona 

A.R.S. § 12-2101(A)(2). 

DISCUSSION

¶8 We review a trial court’s decision to grant or deny visitation 

under an abuse of discretion standard. McGovern v. McGovern, 201 Ariz. 

172, 175, ¶ 6 (App. 2001) (citations omitted). 

¶9 Mother has failed to file an answering brief in this matter. 

“[A] failure to file an answering brief is equivalent to a confession of error 

by appellee.” Welch v. United Mut. Benefit Ass’n, 48 Ariz. 173, 174 (1936) 

(citations omitted). We may reverse and remand for this reason alone. Id.

at 175. Moreover, in reaching its decision, the trial court relied on an 

opinion of this court which is no longer good law. Goodman, 239 Ariz. 110, 

disavowed by In re Marriage of Friedman and Roel, 244 Ariz. 111 (2018). In 

Marriage of Friedman and Roels, our supreme court rejected Goodman’s 

“broader interpretation of ‘special weight’,” and held that a nonparent need 

not be subject to “a heightened burden of proof beyond that required under 

Troxel and McGovern.” Friedman, 244 Ariz. at 116-17, ¶¶ 19, 20. In light of 

Friedman, we reverse and remand to the trial court to reconsider whether 

grandparent visitation with Curtis is in Kierra’s best interests.
COGHILL v. MOWRY 

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CONCLUSION

¶10 For the foregoing reasons, we reverse and remand to the trial 

court for further proceedings consistent with this decision.