Mesa v. Mesa, 94-1180
| Decision Date | 22 March 1995 |
| Docket Number | No. 94-1180,94-1180 |
| Parties | 20 Fla. L. Weekly D730 Vicki MESA, Appellant, v. Steve MESA, Appellee. |
| Court | Florida District Court of Appeals |
Deborah Marks, North Miami, for appellant.
Albert D. Diamond, Miami, for appellee.
Appellant argues that the trial court erred in not awarding her primary residence of the children, in not awarding her permanent alimony, and in prohibiting her from exposing the children to her church's religious practices. We agree that she is entitled to permanent alimony and that the religious restriction is improper.
This was a fourteen year marriage, and the parties, who are in their thirties, had three children. The trial court awarded primary residence of the children to the husband, and in addition, placed the following restriction on the wife:
Due to the significant conflict and the religious belief and practices of the parties, until further order of this Court, the children shall not attend the mother's religious services, nor shall she in any way endeavor to educate her children into her religious practice or that of the church to which she attends directly or indirectly.
The issue of whether a court can restrain a noncustodial parent from exposing a child to his or her religious beliefs and practices is one of first impression in Florida. The courts confronted with this issue have consistently overturned such a restriction, except where there is "a clear, affirmative showing that these religious activities will be harmful to the child." In re Marriage of Murga, 103 Cal.App.3d 498, 505, 163 Cal.Rptr. 79, 82 (1980), and authorities cited therein. Allowing a court to choose one parent's religious beliefs and practices over another's, in the absence of a clear showing of harm to the child, would violate the first amendment. See Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971); Brown v. Szakal, 212 N.J.Super. 136, 514 A.2d 81 (1986).
Although it would not be unexpected for this type of conflict to arise where there are significant differences in the parents' religious beliefs, 1 in the present case the teachings of the parents' churches were essentially the same, the primary difference being that the wife's church was charismatic. Although that type of religious practice made the father "uncomfortable," he presented no evidence that exposing the children to it was doing them any harm.
Although the wife in the present case also argues that she should have been awarded primary residence, her argument that the trial court violated her right of freedom of religion is limited to the propriety of the restriction on her as a noncustodial parent, and does not go to the primary residence award itself, which we find supported by the evidence. The question of whether a trial court can consider a parent's religious beliefs as a factor in determining primary residence, which was answered in the affirmative in Rogers v. Rogers, 490 So.2d 1017 (Fla. 1st DCA 1986), is thus not before us.
The trial court awarded the wife lump sum alimony payable $300 a month for five years. We agree with the wife that she is entitled to permanent alimony, because even when she converts her part time work as a bank teller to full time, she will still make less than a third of what the husband earns as a police officer. In addition, the husband has better future earning prospects, better benefits, and a pension. Because of this disparity, the trial court abused its discretion in failing to award permanent alimony. Steinberg v. Steinberg, 614 So.2d 1127 (Fla. 4th DCA 1993).
Although the wife is not happy with the amount of $300 a month, she...
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