Carolyn Pace v. Saeid Farr

• Decision Date: 26 October 2010
• Docket Number: 1 CA-CV 09-0575
• Parties: In re the Marriage of: CAROLYN PACE, Petitioner/Appellant, v. SAEID FARR, Respondent/Appellee.
• Court: Arizona Court of Appeals

In re the Marriage of: CAROLYN PACE, Petitioner/Appellant, v. SAEID FARR, Respondent/Appellee.

1 CA-CV 09-0575

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT D

FILED: October 26, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);

Ariz.R.Crim.P. 31.24

MEMORANDUM DECISION

(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. DR 1999-011547

The Honorable Colleen L. French, Judge Pro Tem

AFFIRMED

Michael J. Shew, LTD

By Michael J. Shew

Attorneys for Petitioner/Appellant

Phoenix

Saeid Farr

Respondent/Appellee In Propria Persona

Phoenix

IRVINE, Judge

¶1 Carolyn Pace ("Mother") appeals from the family court's custody order granting Saeid Farr ("Father") final decision-making authority of the children's religious matters. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in July 1996 and divorced in August 2001. The divorce decree granted them joint legal custody of their now twelve-year-old daughter and ten-year-old son ("the children"). The children were raised in the Jewish faith during the marriage and continued to attend Hebrew school after the divorce. Although both parents were Jewish during the marriage, Mother converted from Judaism to Christianity in 2005.

¶3 In December 2005, Mother filed a petition to modify parenting time, seeking custody of the children on all Christian holidays. She later requested that the parties alternate full weekends. Father objected because such an arrangement would have precluded the children from attending Hebrew school on Sunday mornings. He sought an order that the children be raised in the Jewish faith, or alternatively, that Mother take them to Hebrew school on Sundays.

¶4 In June 2007, the family court granted Mother's petition, finding Father failed to make a "clear and affirmative showing that the conflicting religious beliefs are detrimental to the welfare of the children," and it was in the best interests of the children for Mother to have more time on weekends and holidays.

¶5 In March 2008, a panel of this Court vacated the family court's order because it applied the incorrect burden ofproof and failed to consider the impact that modification would have on "the children's ability to receive instruction in the Jewish faith." Pace v. Farr, 1 CA-CV 07-0577, 2008 WL 4183002, at *3 n.3, ¶ 14 (Ariz. App. Mar. 25, 2008) (mem. decision).

¶6 On remand, the parties identified the following issues for trial:

Mother's Requests

1. That the children be permitted to attend the Ahwatukee Assembly of God Church for morning and evening Sunday services and Wednesday services, and that they be permitted to attend other functions of that church held during Mother's parenting time; and

2. That Father not discourage the children from holding Christian beliefs or attending Christian churches.

Father's Requests

1. That the children not attend services or other religious functions at Mother's church;

2. That the children not participate in family Bible studies concerning Mother's religious beliefs;

3. That the children not be baptized in Mother's faith;

4. That Mother not pressure the children to become indoctrinated into her faith by, for example, suggesting the reading of particular books; and

5. That Mother not discourage the children from reading particular books or other materials available from their school inpursuing their homework assignments for doctrinaire reasons.

¶7 On July 2, 2009, Mother failed to appear for her scheduled deposition, and Father requested a sanction to preclude her trial testimony. Father requested additional sanctions after Mother untimely filed her Pre-trial Statement and failed to disclose her witnesses' contact information until the day before trial. The court ordered Mother to pay Father's "attorney's fees and costs incurred in preparation for the July 2, 2009 deposition." It permitted Mother to testify but precluded her from presenting other witnesses or documentary evidence.

¶8 On July 17, 2009, the family court issued a detailed minute entry ruling, stating it construed Father's requests and Mother's position as a request for final decision-making authority in the area of the children's religion. It found that Father made a clear and affirmative showing that the imposition of parties' conflicting religious beliefs on the children has "adversely affected their general welfare and happiness, and will continue to do so." Recognizing that "the choice of religion is ordinarily not the province of a court of law," it stated it was "compelled to make this choice given the parties' unwillingness to agree and the adverse affect this has had on their children's welfare and happiness." Consequently, itgranted Father final "decision-making authority in the area of religion" for the children.

DISCUSSION

¶9 On appeal, Mother argues the family court erred by:

(1) exceeding the scope of its authority on remand; (2) finding there were changed circumstances despite no evidence of actual harm to the children; (3) failing to make specific findings of fact under Arizona Revised Statutes ("A.R.S.") section 25-403 (2007); (4) imposing an evidentiary sanction that precluded her from presenting witnesses or documentary evidence at trial; and (5) ordering her to raise the children solely in the Jewish faith in violation of her religious freedoms under federal and state constitutions.

1. Authority to Modify Custody

¶10 Mother first argues the family court erred because the proceedings on remand were inconsistent with the mandate of this Court. She contends the "narrow issue" should have been whether she could prove, taking into account the effect on the children's religious education, that modification of parenting time was in the children's best interest. Instead, she argues, the court went "well beyond that inquiry," and sua sponte granted Father final decision-making authority over the children's religion. In effect, she contends the family courtmodified legal custody without the authority to do so. We disagree.

¶11 A trial court may not transgress upon the "obvious intent" of an appellate court by deciding on issues on remand that exceed the mandate given. Tucson Gas & Elec. Co. v. Superior Court (Ed. Of Supervisors of Pima County), 9 Ariz. App. 210, 212-13, 450 P.2d 722, 724-25 (1969). That rule, however, does not apply when we have not determined the issue litigated on remand. Cagle v. Carlson, 146 Ariz. 292, 294, 705 P.2d 1343, 1345 (App. 1985).

¶12 In the prior appeal, we specifically declined to "reach Father's additional claim that the trial court abused its discretion when it denied his request to order that the children be raised in the Jewish faith." Pace, 1 CA-CV 07-0577, 2008 WL 4183002, at *3 n.3, 1 14. Accordingly, Father's request for final decision-making authority was properly before the family court on remand.

¶13 In addition, the family court correctly construed the issues raised and positions adopted as a request to modify legal custody in the area of religion. Mother sought permission to take the children to her church and educate them in Christianity. Father objected and adopted the position that the children should be raised solely in the Jewish faith. Because their positions were mutually exclusive, and they were unwillingand unable to agree, the trial court was called upon to determine who should have the final decision-making authority in the area of the children's religion.

¶14 Even assuming neither party requested modification of legal custody by petition or motion, we discern no error. A family court is vested with subject matter jurisdiction over child custody determinations and has continuing jurisdiction to modify a custody decree it has entered. In re Marriage of Dorman, 198 Ariz. 298, 301, 1 7, 9 P.3d 329, 332 (App. 2000). The requirement that parties seeking modification of custody do so by petition or motion is procedural and not a jurisdictional prerequisite to a valid modification order. Id. at 302, 1 9, 9 P.3d at 333. (citing Lowther v. Hooker, 129 Ariz. 461, 464, 632 P.2d 271, 274 (App. 1981)). As long as there are changed circumstances affecting a child's welfare, the court which entered the decree has continuing jurisdiction to change the terms of a custody order. Ward v. Ward, 88 Ariz. 130, 134-35, 353 P.2d 895, 898 (1960).

¶15 On this record, we agree there was a material change of circumstances that authorized the court to modify custody suasponte.¹

2. Changed Circumstances

¶16 Mother also argues "the [trial] court abused its discretion in finding that the children's general welfare is affected by taking them to a Christian place of worship." She contends there was "no competent evidence" that the children were physically or emotionally harmed, and that the trial court "summarily concluded the children's welfare was affected without as much as a scintilla of actual, verifiable evidence." We disagree.

¶17 A trial court has broad discretion to modify child custody, and its decision will not be reversed absent a clear abuse of discretion. Pridgeon v. Superior Court (Pridgeon), 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). To determine an abuse of discretion, "the record must be devoid of competent evidence to support the decision of the trial court." Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963). A judgment will not be disturbed if there is any reasonable evidence to support it. Id. ¶18 A trial court must make two determinations when modifying a divorce decree with respect to child custody. Elack v. Elack, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977). First, it must ascertain a change in circumstances materially affecting the welfare of the child. Id. Second, it must determine whether modification of custody will be in the best interests of the child. Id.

¶19 Mother argues the condition of...