Marriage of Gove, In re

• Decision Date: 17 December 1977
• Docket Number: CA-CIV,No. 1,1
• Citation: 572 P.2d 458,117 Ariz. 324
• Parties: In re the MARRIAGE OF Mary Jo GOVE, Appellant, and George E. Gove, Appellee. 3419.
• Court: Arizona Court of Appeals

Page 458

572 P.2d 458

117 Ariz. 324

In re the MARRIAGE OF Mary Jo GOVE, Appellant and

George E. Gove, Appellee.

No. 1 CA-CIV 3419.

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

Dec. 17, 1977.

Renaud, Cook & Miller, P.A., by Robert H. Renaud, Val A. Cordova, Robert M. Geiger, Phoenix, for appellant.

Allen, McClennen & Fels by James R. Harrison, Phoenix, for appellee.

OPINION

WREN, Presiding Judge.

In January, 1975 appellee George Gove filed a petition for the dissolution of his marriage with appellant, Mary Jo Gove, and sought custody of their two children. Appellant answered in March, 1975, conceding that the marriage was irretrievably broken and asking for custody of the children. On November 12, 1975, the trial court entered a decree dissolving the marriage and awarding permanent custody of the children to appellee subject to specified visitation rights.

Shortly after filing his petition appellee filed a motion under Rule 35(a), Rules of Civil Procedure, 16 A.R.S., seeking an order requiring appellant and their children to submit to a mental examination. In response appellant asserted that appellee had not shown good cause as required by Rule 35(a). ¹ Prior to any ruling by the trial court, appellee filed a subsequent motion accompanied by his affidavit stating that appellant's conduct had raised serious doubts as to her fitness to care for the children. This conduct included frantic and excessive spending, numerous out-of-town trips and an "unusually zealous approach" to her religious activities. In the affidavit, appellee also stated that numerous friends had suggested that his wife was mentally disturbed and that a psychiatrist who previously had substantial contact with appellant had advised him that she was mentally ill and needed psychiatric help. After the court ordered both parties to submit to a mental examination, appellant moved to set aside the order arguing that it violated her personal and religious convictions. Appellee responded, stating that appellant was a Seventh Day Adventist and that the Adventists did not prohibit mental examinations. He pointed out that the Adventist university in Loma Linda, California had a department of psychiatry. Attached to the response was an affidavit from Dr. LaMont Casey, a psychiatrist practicing in Phoenix. Dr. Casey stated in the affidavit that he was an Adventist and was unaware of any church limitation on psychological or psychiatric evaluations. Furthermore, he had seen appellant in his professional capacity, with the last consultation occurring on November 19, 1974, only two months before appellee had filed his petition. Dr. Casey's tentative diagnosis of appellant then was that she was suffering from a manic depressive reaction and that further evaluation was needed to rule out paranoic schizophrenic possibilities.

Following a hearing the court again ordered appellant and appellee to submit to psychiatric examinations. Appellee complied but appellant continued to refuse. Appellee thereupon filed a motion for sanctions under Rule 37(b), Rules of Civil Procedure, 16 A.R.S. Appellant opposed the motion, again asserting that her religious convictions prevented her from submitting to an examination by a psychologist or psychiatrist. Her opposition included an affidavit from John V. Stevens, president of the Seventh Day Adventist Church State Council. The affidavit supported the sincerity of appellant's beliefs and buttressed her position with references to official writings of the Adventist church. It did not state that appellant's views were shared by Mr. Stevens or other Adventists, but noted that appellant had arrived at her view after studying these writings and that submitting to an examination would violate her conscience. Following a hearing on the motion the court directed that appellant comply with the order within 10 days prior to trial, or she would be prohibited from introducing evidence on the question of her fitness to provide care, custody or control of the children.

The custody hearing took place on October 15, 16 and 20, 1975. Appellant had not submitted to the examination and the order imposing the sanctions was enforced. Appellant introduced evidence at the hearing as to the fitness for custody by way of an offer of proof.

Appellant argues (1) that the imposition of the sanction violated her right to freedom of religion under the Free Exercise Clause of the First Amendment; and (2) that the imposition of the sanctions for refusal to obey the court order was unjust and prevented the court from considering all factors relevant to the best interests of the children under A.R.S. § 25-332.

Our resolution of the second contention renders the first issue moot. However, because of the intensity of appellant's argument on the freedom of religion issue, we shall also respond to it.

Protections of the First Amendment are extended not only to those religious beliefs held by organized religions but also to individually held religious convictions. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). However, our inquiry must initially be directed to whether appellant's convictions were sincere and rooted in religious rather than personal or secular considerations; otherwise, the interest protected by the Free Exercise Clause of the First Amendment are not jeopardized. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In this connection the court below found that appellant's failure to comply with the court order to submit to an examination was based upon "her own individual personal beliefs and not upon any constitutionally protected freedom of religion." We think there was substantial evidence to support this determination.

Appellant faced an uphill struggle in demonstrating the sincerity and validity of her expressed religious convictions. Not the least of her problems was the fact that her religious objections to mental examinations were of relatively recent origin. For example, appellant had voiced no objection some years before to seeking help from a psychiatrist for one of her children who had been experiencing some problems. Appellant herself had been consulting a psychiatrist for her own problems as recently as four months before she first raised religious objections to mental examinations. While recently acquired religious views are worthy of protection, the history of a religious belief and the length of time it has been held are factors to be utilized in assessing the sincerity with which it is held. See Wisconsin v. Yoder. Nor can it be overlooked that appellant's newly acquired convictions about mental examinations materialized at precisely the same time her mental condition became an issue in the child custody case.

Further, the evidence offered by appellant in support of the sincerity and validity of her religious beliefs was less than impressive. Appellant herself never expressed in any way the basis of her religious objections to mental examinations, nor did she attempt to personally attest to the sincerity of her beliefs. She did not offer her own testimony on the matter nor did she even offer her own...