Munoz v. Munoz, 42059

• Decision Date: 28 October 1971
• Docket Number: No. 42059,42059
• Citation: 489 P.2d 1133,79 Wn.2d 810
• Court: Washington Supreme Court
• Parties: Maureen C. MUNOZ, Respondent, v. Vincente S. MUNOZ, Jr., Appellant.

Page 810

79 Wn.2d 810

489 P.2d 1133

Maureen C. MUNOZ, Respondent, v.Vincente S. MUNOZ, Jr., Appellant.

No. 42059.

Supreme Court of Washington, En Banc.

Oct. 28, 1971.

T. C. Boyle, Seattle, for appellant.

Donald E. Mirk, Kent, for respondent.

HUNTER, Associate Justice.

This case arises from a controversy of parents in a divorce action over the religious training of their minor children.

The defendant(appellant), Vincente S. Munoz, Jr., and the plaintiff(respondent), Maureen C. Munoz, were married in 1960 and three children were born as the issue of the marriage.A boy was born January 10, 1964, a boy born July 7, 1966, and a girl born January 4, 1970.It is undisputed from the facts that the question of religion was an unsettled matter with the parties.The defendant's background was Catholic while the plaintiff was a member of the Church of Jesus Christ of Latter Day Saints.Prior to the marriage the plaintiff agreed to become a Catholic.Subsequently, however, she again followed the Mortized beliefs.All of the children were baptized Catholics and were also blessed and given a name in the Church of Jesus Christ of Latter Day Saints.The older boy attended Catholic Church regularly with his father and religious classes conducted by the Catholic Church.The younger boy attended Catholic Church with his father on occasion.During the pendency (13 months) of the divorce action, the older boy attended early Sunday Mass in the Catholic Church with his father and later the children would go to services with their mother in her church.

Both parties were granted a divorce by decree entered in King County, May 19, 1970.Custody and care of the three children was awarded to the mother and visitation rights allowed the father.The trial court further determined that it would be detrimental to the children to have them exposed to conflicting religious beliefs and held that it would be in the best interests of the children to have them raised in the religious belief of the parent having their custody.Accordingly, the sole control over their religious training was awarded to the plaintiff.The defendant was specifically prohibited from taking the children to any Catholic Church services or to any instructional classes sponsored by the Catholic Church until further order of the court or until such time as the parties may mutually agree that this would be permissible.From this part of the order of the trial court relating to the religious training of the children, the defendant now appeals, contending that the best interests and welfare of the children are not served by such a disposition.

It is well established that in child custody matters the best interests and welfare of the children are the primary and controlling considerations.Andersen v. Andersen, 75 Wash.2d 779, 453 P.2d 856(1969);Lines v. Lines, 75 Wash.2d 489, 451 P.2d 914(1969);Schultz v. Schultz, 66 Wash.2d 713, 404 P.2d 987(1965);Chatwood v. Chatwood, 44 Wash.2d 233, 266 P.2d 782(1954).Similarly, where there is a conflict between the parents regarding the religious faith and training of the children, the paramount concern is the welfare of the children.Angel v. Angel, Ohio Com.Pl., 2 Ohio Op.2d 136, 140 N.E.2d 86(1956);In re Schreifels v. Schreifels, 47 Wash.2d 409, 287 P.2d 1001(1955).In Angel, supra, the court said, 2 Ohio Op.2d at 138, 140 N.E.2d at 88:

When it is made to appear that a conflict between divorced parents as to religious instruction is affecting the welfare of their children, a court should always act in accordance with what is best for the happiness and welfare of the child.In legal contemplation the court recognizes no difference in object between religious or other conflicts.

The courts are reluctant, however, to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the child.The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over another.Wojnarowicz v. Wojnarowicz, 48 N.J.Super. 349, 137 A.2d 618(1958);Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705(1958);Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526(1943); See Custody of Child--Religion As Factor, Annot., 66 A.L.R.2d 1412(1959);Divorce--Visitation Rights--Religious Conflicts, Annot., 88 A.L.R.2d 217(1963);2 Nelson on Divorce and Annulment, § 15.13, at 183 (2d Ed. 1961), and H. Clark, Law of Domestic Relations, § 17.4(e), at 588, et seq.(1968).

In Wojnarowicz, supra, that court, which as confronted with a similar situation regarding a controversy over the religious training of the children of divorced parents, said, 48 N.J.Super. at 354, 137 A.2d at 621:

The intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.Donahue v. Donahue, 142 N.J.Eq. 701, 61 A.2d 243(E. & A.1948).Nevertheless, in awarding the custody of an infant the religious training of the child is appropriately an element which may be considered in promoting the general welfare of the infant.Boerger v. Boerger, 26 N.J.Super. 90, 97 A.2d 419(Ch.Div.1953).Therefore, religious training cannot in all cases be entirely disregarded.

H. Clark, Law of Domestic Relations, Supra, at 589, remarks:

For the most part, however, it is difficult to see how, in a custody controversy between parents, a difference in religious belief should have any appreciable influence on the outcome.

Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.

We recognize the general rule that in child custody casesthe trial court, in furtherance of the best interests and welfare of the child, is vested with a wide latitude of discretion and in the absence of a manifest abuse of discretion in awarding the custody and control of minor children, its judgment will not be disturbed on appeal.Andersen v. Andersen, Supra, and cases...