Jordan v. Rea

• Decision Date: 28 May 2009
• Docket Number: No. 1 CA-SA 09-0007.,1 CA-SA 09-0007.
• Citation: 212 P.3d 919,221 Ariz. 581
• Parties: Paollo JORDAN, Petitioner, v. The Honorable John REA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Gerald Romine, Real Party in Interest.
• Court: Arizona Court of Appeals

212 P.3d 919

221 Ariz. 581

Paollo JORDAN, Petitioner, v. The Honorable John REA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Gerald Romine, Real Party in Interest.

No. 1 CA-SA 09-0007.

Court of Appeals of Arizona, Division 1, Department A.

May 28, 2009.

Mueller & Drury, P.C., By James P. Mueller, Scottsdale, Attorney for Petitioner.

Rowley Chapman Barney & Buntrock, Ltd, By Timothy W. Durkin, Mesa, Attorneys for Respondent/Real Party in Interest.

Paul G. Ulrich, P.C. By Paul G. Ulrich, Phoenix, Additional Counsel for Respondent/Real Party in Interest.

OPINION

BARKER, Judge.

¶ 1 In this special action we address three issues of first impression with statewide application: (1) What standard is the superior court to apply when divorced parents who are to work jointly in determining school placement for their child are unable to agree? (2) May a child be precluded from attending a private religious school solely because one parent objects on religious grounds? and (3) May a parent be required to pay tuition for a private religious school as part of his or her child support obligation?

¶ 2 As set forth below, we hold: (1) The superior court is to apply a best interests standard when parents obligated to work together are unable to reach agreement as to school placement; (2) A private religious school may not be precluded from consideration as the child's school placement merely because it is a private religious school; and (3) The superior court has authority to order an objecting parent to pay child support for the school placement that is determined to be in the best interests of the child even if it is a private religious school.

I.

¶ 3 Paolla Jordan ("Mother") and Gerald Romine ("Father") are the parents of two minor children, a daughter M., age 10, and a son A., age 7. Mother and Father divorced in December 2005. In the dissolution decree, the court approved of Mother and Father's parenting plan and awarded Mother and Father joint custody of M. and A. The court also awarded Mother child support.

¶ 4 Both M. and A. have attended a private religious school since kindergarten. Until January of this year, M. had attended the private religious school continuously for five years both before and after the divorce. She started attending the school in 2003 and is now in fifth grade. A. began attending the school after the divorce, in 2006, with the consent of both parents when he started kindergarten. He is now in second grade. Tuition for both children to attend the school costs $850 per month.

¶ 5 On September 5, 2007, Father filed a petition to modify child support, requesting a 54% reduction of his monthly payments. Mother requested a hearing on the matter. The superior court, Commissioner Steven Kupiszewski presiding, held an all-day evidentiary hearing on January 28, 2008. Father submitted to the court an updated affidavit of financial information and contended that he did not think it was economically feasible for his children to continue in a private school. Mother asserted that she and Father had previously agreed that the children would be home-schooled or placed in a private school, and she requested that the court include the children's $850 per month school tuition in Father's child support payments. Commissioner Kupiszewski noted that the parties entered a settlement agreement as to "all issues" but that "[t]he Agreement makes no mention of the modification of child support before this court nor any agreements regarding the issue of private schooling for the children." Accordingly, on April 30, 2008, the Commissioner ruled as to each issue. The April 30 order required Father to pay the full tuition costs for both children at the private religious school on the basis that "this was the parties' pattern and practice and neither parent may modify the choice of schooling without the consent of the other parent or absent a court order." Father appealed the April 30 order to this court. That appeal is presently pending.

¶ 6 Father subsequently filed a petition in the family court to enforce the parenting plan. In his petition, Father argued that the April 30 ruling violated his constitutional right to direct the education and upbringing of his children and that it violated the terms of the parenting plan. Among other arguments, Mother asserted in response that the issue of which school the children should attend was addressed in the April 30 order. The family court, through Judge John Rea, issued a second order on December 9, 2008, reducing Father's child support obligations and requiring Mother to choose a different school for the children at the end of the term. The December 9 order effectively "reversed" the April 30 order which was (and is) pending appeal, and precluded the children from attending the private religious school after the month's end. In pertinent part, the December 9 order stated: "[F]or the purpose of our hearing today, if Father objects to continuing in the religious school, he has a right to make that objection, and the Court will uphold that objection." Mother then filed a special action asserting that the December 9 order was an abuse of discretion "by holding that in all cases, if one parent objects to [the] children attending a religious school, the children must be removed from that school."

¶ 7 After receiving the petition, we ordered the parties to file simultaneous briefs on whether the superior court had any jurisdiction to issue the December 9 order as it addressed the same issue presented in the April 30 order. See State v. O'Connor, 171 Ariz. 19, 21, 827 P.2d 480, 482 (App.1992) ("[A]n appeal generally divests the trial court of jurisdiction to proceed except in furtherance of the appeal."). As a result of the parties' briefing, this court discovered the April 30 order was unsigned, a necessary requirement for an appeal. Eaton Fruit Co. v. Cal. Spray-Chemical Corp., 102 Ariz. 129, 130, 426 P.2d 397, 398 (1967) (holding that the court did not have jurisdiction to consider the appeal because the underlying minute entry order "was not signed by the judge and filed with the clerk of the court"). The department of this court before which the appeal of the April 30 order is pending then issued an order pursuant to Eaton Fruit, suspending the appeal in that matter and giving the parties an opportunity to obtain a signed version of the April 30 order. A form of signed order has now been filed.

II.

¶ 8 As the matter before us is a special action, our first task is the issue of jurisdiction. Special action jurisdiction is appropriate when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a). Special actions may not be used as a substitute for an appeal. Neely v. Rodriguez, 165 Ariz. 74, 76, 796 P.2d 876, 878 (1990) (recognizing the "strong Arizona policy against using extraordinary writs as substitutes for appeals"). However, "where an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again, special action jurisdiction may be warranted." Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992); see also In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 154, 945 P.2d 1283, 1285 (1997) (accepting special action jurisdiction as the issue was "one of first impression in Arizona"; had "statewide significance," affecting more than just the parties involved; and was "purely a question of law"); Qwest Corp. v. Kelly, 204 Ariz. 25, 27, ¶ 3, 59 P.3d 789, 791 (App.2002) (accepting special action jurisdiction when "significant threshold questions raised are purely legal and of statewide importance"). This is such a case.

¶ 9 The three issues presented to us here (the applicable legal standard regarding a minor's school placement when parents are divorced, whether a private religious school may be disqualified for a child's school placement simply because it is a religious school and, if not, whether child support may be awarded based on tuition for a private religious school) are pure questions of law that are likely to recur and have statewide importance. As set forth in detail below, every joint custody arrangement in the state of Arizona is required to have a parenting plan that addresses education for the child. See infra ¶ 19; see also Ariz.Rev.Stat. ("A.R.S.") §§ 25-403.01, 25-403.02(A)(1) (2007). Thus, the issues arising here may arise in any joint custody case in Arizona when one parent desires the child to attend a private religious school and the other objects, unless the parenting plan leaves school choice to one parent alone or specifically addresses the parties' intentions with regard to private religious schools. Accordingly, jurisdiction is appropriate on this ground.

¶ 10 Based on the foregoing factors, we conclude that it is appropriate to exercise our discretion to accept special action jurisdiction. Having done so, we turn now to the three issues presented.

III.

¶ 11 Because of the sequence in which the issues presented were ruled on below, we address first the question whether the superior court may decline to consider one parent's choice of a private religious school for a child solely on the basis of the other parent's objection on religious grounds. We first examine pertinent terms of the parties' parenting plan. They provide:

7. The children shall attend school in the area and school district in which Mother resides, unless otherwise agreed to by Mother.

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10. Both parents shall make all major educational decisions together for the children.

11. Mother and Father shall raise the minor child in the church of his/her choice/faith/religion. Mother and Father shall cooperate concerning all religious decisions for the children.

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16. ... [a]ny disputes or conflicts with reference to childcare or major life decisions that cannot be resolved between the...