Funk v. Ossman, 2

• Decision Date: 11 April 1986
• Docket Number: CA-CIV,No. 2,2
• Citation: 724 P.2d 1247,150 Ariz. 578
• Parties: Kaaron Wahlberg FUNK, Petitioner/Appellee, v. Stanley Louis OSSMAN, Respondent/Appellant. 5578.
• Court: Arizona Court of Appeals

Page 1247

724 P.2d 1247

150 Ariz. 578

Kaaron Wahlberg FUNK, Petitioner/Appellee, v. Stanley Louis OSSMAN, Respondent/Appellant.

No. 2 CA-CIV 5578.

Court of Appeals of Arizona Division 2, Department A.

April 11, 1986.

Review Denied Sept. 9, 1986.

Ann M. Haralambie, Tucson, for petitioner/appellee.

Lieberthal & Kashman, P.C. by David H. Lieberthal and Howard A. Kashman, Tucson, for respondent/appellant.

HOWARD, Presiding Judge.

This is an appeal from the order of the court in which appellant was enjoined from taking the minor child of the parties to formal Jewish religious training or indoctrination.

The record shows that following appellee's conversion to Judaism, the parties were married in 1973 in a formal Jewish ceremony and that in 1978, they were divorced. At this time they had one child, Hal, who was then 15 months old. His custody was awarded to appellee and appellant was given reasonable visitation rights.

Following her divorce, appellee converted, becoming a lay minister in the Lutheran church. She began to raise Hal in this religion.

In 1983, appellant filed a petition for an order to show cause wherein he prayed, inter alia, that he be given the right to raise their minor child in the Jewish faith. In his petition appellant requested that the court enter an order that Hal be raised and educated as a Jew, that he not be educated or indoctrinated at home or any other place in any other religion, that Hal not attend any church or non-Jewish house of worship for any educational or spiritual reasons whatsoever, that Hal attend Sunday school every Sunday at Temple Emanu-El, that he attend Hebrew school at the appropriate age with the ultimate goal of bar mitzvah and, that the parties should be ordered to abide by any other rules of education proposed by Temple Emanu-El consistent with the goal of bar mitzvah. A hearing was held in 1984 before the Honorable William N. Sherrill which included testimony of three psychologists, one of whom was retained by appellant. The trial court found that all three psychologists believed that a child should not be simultaneously raised in, and receive religious training in both religions and that training in both religions would not be in the best interests of the child. The court further found from the testimony of the psychologists that it would be very hard on the child and against the best interest of the child if he were living with the custodial parent, a practicing Christian, but was receiving formal religious education in Judaism. The trial court denied appellant's request and ordered that appellee shall continue to have the right to direct and control the religious training of the minor child.

On November 5, 1984, approximately seven months later, appellee filed the petition for an order to show cause which is the subject of the present appeal. In the petition she alleged that appellant was in contempt of the court order by enrolling Hal in Jewish Sunday school. There were also other allegations of contempt regarding appellant's failure to timely return the child after his visitations. The appellant responded to appellee's petition and filed his own counter-petition requesting the child be allowed to attend Jewish Sunday school.

In 1985, at the hearing on the order to show cause and the counter-petition, the Honorable Gordon Kipps took judicial notice of the findings and order previously entered by Judge Sherrill. Additional testimony was introduced into evidence, including testimony from a psychologist and the rabbi at the Sunday school which Hal had been attending.

The trial court did not find appellant in contempt of court, but it did order that for each day the child was returned to appellee late from summer visitation, appellant would pay appellee the sum of $100 as a penalty.

The trial court also found that the teachings and doctrines of Christianity and Judaism are mutually exclusive and enjoined appellant from taking the child who was then eight years old for formal Jewish religious training or indoctrination, but permitted the child to be involved in his father's religion short of religious indoctrination. In fact, the record shows that appellee had no objection to allowing the child to go to synagogue with his father, participate in Jewish holidays and Jewish religious services but rather she only objected to the placing of the child in Sunday school.

Appellant contends: (1) It was improper for the court to enjoin appellant from indoctrinating his son in Judaism under the pertinent child custody statute since no immediate harm to the child was shown; (2) the injunction violated his constitutional guarantee of freedom of religion, and (3) it was improper for the court to impose a prospective fine for anticipated wrongdoing absent a finding of civil contempt.

As to the first issue raised by appellant, it would appear that at the very least, the doctrine of collateral estoppel applies. Appellant never appealed from Judge Sherrill's order. It is clear that this issue was litigated. It is also clear by the findings and order of Judge Sherrill that appellee was to have the exclusive right to control the religious training of their minor child. This was done by Judge Sherrill after hearing testimony from psychologists, and finding that it was in the best interest of the child that such religious training be vested solely in appellee. There have been no changed circumstances which justify reopening the religious issue. However, assuming arguendo, that collateral estoppel does not apply, the trial court did not err.

A.R.S. § 25-338(A) provides:

"Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including his education, health, care and religious training, unless, upon motion by the noncustodial parent, the court, after hearing, finds that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or his emotional development significantly impaired." (Emphasis added.)

It has been held by courts interpreting statutes similar to A.R.S. § 25-338(A) that such statutes do not give the custodial parent an absolute mandate to determine all facets of the children's religious training, absent a showing that such determination endangers the child's physical health or impairs the child's emotional development. Instead, such statutes are intended to provide a guideline for the custodial parent and the courts in the general area of child welfare and upbringing. The right to make the initial decision on such matters is given to the custodial parent, whereas the burden is placed upon the noncustodial parent to establish the fault of such custodial determination. Marriage of Heriford, 586 S.W.2d 769 (Mo.App.1979); Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971). Such a statute gives recognition to and does not sweep away the firmly established principle that at all levels, at all times and in all forums, the welfare and best interest of the child is of prime and overriding importance as measured by the particular facts and circumstances...