Ball v. Ball

• Decision Date: 10 December 2020
• Docket Number: No. 1 CA-CV 19-0787 FC,1 CA-CV 19-0787 FC
• Citation: 250 Ariz. 273,478 P.3d 704
• Parties: In re the Matter of: Kathleen Marie BALL, Petitioner/Appellee, v. Shawn A. BALL, Respondent/Appellant.
• Court: Arizona Court of Appeals

250 Ariz. 273

478 P.3d 704

In re the Matter of: Kathleen Marie BALL, Petitioner/Appellee,

v.Shawn A. BALL, Respondent/Appellant.

No. 1 CA-CV 19-0787 FC

Court of Appeals of Arizona, Division 1.

FILED December 10, 2020

McMURDIE, Judge:

¶1 Shawn Allen Ball ("Father") appeals from the superior court's order granting Kathleen Marie Ball's ("Mother") petition to enforce a parenting plan and awarding attorney's fees and costs. We vacate the order in part and hold: (1) the superior court erroneously interpreted the parenting plan's religious-education provisions; and (2) the court violated the First Amendment of the United States Constitution by failing to abstain from deciding whether Father's decision to have the parties’ children attend The Church of Jesus Christ of Latter-day Saints complied with the parenting plan's provision that the children may be instructed in "the Christian faith." For these reasons, we remand the case for further proceedings.

FACTS¹ AND PROCEDURAL BACKGROUND

¶2 Mother and Father married in November 1999 and have two minor children. In December 2017, Mother petitioned for dissolution. The parties represented themselves during the initial dissolution proceedings, and the court entered a default decree ("Decree"). Filed simultaneously with the Decree was a parenting plan, signed by both parents, that they prepared using a court-provided form ("Parenting Plan"). The court adopted the Parenting Plan's terms as part of the Decree. The Parenting Plan provisions relevant to this appeal are as follows:

¶3 Approximately one year after the divorce, Father joined The Church of Jesus Christ of Latter-day Saints ("Father's Church"), and the children occasionally joined him at meetings. After Mother learned the children were accompanying Father to his church, she petitioned to enforce the Parenting Plan, claiming Father's Church is not Christian. Mother also asserted other violations of the Parenting Plan.

¶4 The superior court held two hearings on the enforcement petition. During the second hearing, Mother called a youth ministry leader from her church to testify that Father's Church is not Christian. After taking the matter under advisement, the superior court held that the Parenting Plan directs that "the Children shall only be instructed in the Christian faith" and that Father's Church was not "Christian" within the meaning of the Parenting Plan. For these reasons, the court held that Father could not take the children to Father's Church's services. The court also found that Father had violated other Parenting Plan provisions and granted Mother an award of attorney's fees.

¶5 Father appealed, and this court stayed the superior court's order. We have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

A. The Reference to "Christian" in the Parenting Plan's Second Clause Did Not Abrogate Father's Right under the First Clause to Take the Children to a Place of Worship of Father's Choosing.

¶6 In Arizona, joint legal decision-making arrangements must address each parent's "rights and responsibilities" for the child's care and decisions regarding education, health care, and religious training. A.R.S. § 25-403.02(C)(1), (2). Courts are directed to adopt a parenting plan that is "[c]onsistent with the child's best interests." A.R.S. § 25-403.02(B). We review the interpretation of a parenting plan de novo . Jordan v. Rea , 221 Ariz. 581, 588, ¶ 15, 212 P.3d 919, 926 (App. 2009).

¶7 To interpret a parenting plan, we apply the general rules of construction for any written instrument.² See Cohen v. Frey , 215 Ariz. 62, 66, ¶ 11, 157 P.3d 482, 486 (App. 2007) ("To interpret the decree, we apply the general rules of construction for any written instrument."). The court may use its contempt power to enforce an obligation only if the responsibility is "clear, specific and unambiguous." Munari v. Hotham , 217 Ariz. 599, 604, ¶ 22, 177 P.3d 860, 865 (App. 2008) (quoting Ex Parte Chambers , 898 S.W.2d 257, 260 (Tex. 1995) ). For that reason, we first determine whether the plan is ambiguous. See In re Marriage of Johnson & Gravino , 231 Ariz. 228, 233, ¶ 16, 293 P.3d 504, 509 (App. 2012). A document is ambiguous "only when [the language] can reasonably be construed to have more than one meaning." In re Estate of Lamparella , 210 Ariz. 246, 250, ¶ 21, 109 P.3d 959, 963 (App. 2005). "[W]hether ... language is reasonably susceptible to more than one interpretation ... is a question of law for the court." Id.

¶8 The superior court found that when the Decree was entered, "both parties were practicing the Christian faith and agreed the Children would be instructed only in that faith." The court further found that "[b]ased on the evidence provided ... Mormonism does not fall within the confines of Christian faith and thus instructing the Children in a faith other than Christianity violates the Parenting Plan."

¶9 The superior court's ruling is based on an incorrect interpretation of the Parenting Plan. The first clause of the religious-education section of the Parenting Plan unambiguously states that "[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care." This language permits Father to take the children to any "place of worship," be it "Christian" or "non-Christian." Nothing in the second clause explicitly limits or narrows this authority. The superior court erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

¶10 Mother nevertheless cites Cohen v. Frey to argue that we should "reject a commonly understood meaning of language when the surrounding language demonstrates the words have a particular import." 215 Ariz. at 66, ¶ 12, 157 P.3d at 486. Mother argues that the second clause of the religious-education section, which states that "[b]oth parents agree that the minor children may be instructed in the Christian faith," modifies the first clause such that any church Father takes the children to must be within the Christian faith.

¶11 Mother's reliance on Cohen is misplaced. Contrary to Mother's argument, the second clause's direction that the parents "may" instruct their children in the Christian faith does not create ambiguity about the first clause's meaning. The use of the word "may" generally indicates permissive intent, while "shall" and "will" denote a mandatory provision. See City of Chandler v. Ariz. Dep't of Transp. , 216 Ariz. 435, 438–39, ¶ 10, 167 P.3d 122, 126–26 (App. 2007) ; see also Hewitt v. Helms , 459 U.S. 460, 471, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (recognizing that the word "will," like "shall" and "must," is "of an unmistakably mandatory character"), overruled on other grounds by Sandin v. Conner , 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Parenting Plan repeatedly demonstrates this distinction.

¶12 The Parenting Plan provides that the parents "will make" major medical and educational "decisions together" and directs that "neither parent shall do anything" to hurt the other parent's relationship with the minor children." (Emphasis added.) To interpret the word "may" in the religious-education section as mandatory rather than permissive would render the distinction between the different words meaningless. See Walter v. Wilkinson , 198 Ariz. 431, 432, ¶ 7, 10 P.3d 1218, 1219 (App. 2000) ("If a statute employs both mandatory and discretionary terms, we may infer that ... each term carr[ies] its ordinary meaning."). Thus, as the second clause is unambiguously permissive, it allows for instruction in the Christian faith but does not require it. Therefore, it does not operate to limit the parent's rights under the first clause to take the children to any "place of worship."

¶13 Mother's argument that this interpretation makes the second clause superfluous is unavailing. Adopting Mother's assertion that the second clause limits the parents’ rights under the first clause would render the first meaningless because the parents could no longer take the children to a church or place of worship of their choice. Instead, the second clause is permissive and ensures that the "children may be instructed in the Christian faith." This interpretation gives effect to both clauses in the Parenting Plan's religious-education section. See Stine v. Stine , 179 Ariz. 385, 388, 880 P.2d 142, 145 (1994) (noting that the meaning of one part of divorce decree should not render another part meaningless).

¶14 Mother dismisses this protection as minimal, but we do not find an explicit guarantee that the children may be instructed in the Christian faith to be an insignificant distinction from a separate guarantee that a parent may take the children to any religious service of the parent's choosing. See Funk v. Ossman , 150 Ariz. 578, 580-82, 724 P.2d 1247, 1249–51 (App. 1986) (affirming order that child could not attend "formal Jewish religious training" but noting no objection to the child attending Jewish services). Nor does it render either clause meaningless to give full weight to both. See 11 Samuel Williston & Richard A. Lord, Williston on Contracts § 32:5 (4th ed.) ("[W]ords or clauses are not to be treated as meaningless, or to be discarded, if any reasonable meaning can be given them consistent with the whole contract.") (citation omitted).

¶15 Finally, Mother argues that Father waived his argument by failing to urge this interpretation of the Parenting Plan before the superior court. We disagree. Although Father first suggested that the court may have to address the definition of Christianity, he later argued that the Parenting Plan "lets [the parents] do whatever they want to do." Although Father admitted that he knew Mother would have a problem if he took the children to a non-Christian church and agreed the children should be instructed in the Christian faith, he also argued that "being or not being a...