Smith v. Smith, 6876

• Decision Date: 28 December 1961
• Docket Number: No. 6876,6876
• Citation: 90 Ariz. 190,367 P.2d 230
• Parties: Betty Jean SMITH, Appellant, v. John Paul SMITH, Appellee.
• Court: Arizona Supreme Court

Page 230

367 P.2d 230

90 Ariz. 190

Betty Jean SMITH, Appellant, v. John Paul SMITH, Appellee.

No. 6876.

Supreme Court of Arizona, In Banc.

Dec. 28, 1961.

Langerman & Begam, by Robert Begam, Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, Phoenix, for appellant.

Cavanagh & O'Connor, by James H. O'Connor and Robert G. Beshears, Phoenix, for appellee.

STRUCKMEYER, Chief Justice.

This is an appeal from an order of the superior court changing the custody of a minor child based on these significant facts. On September 13th, 1957, appellant, Betty Jean Smith, was granted a divorce from appellee, John Paul Smith and given the care, custody and control of their child, Mark, with reasonable visitorial rights in appellee. The same year the minor child being then six years old was enrolled in the first grade in the public schools in Phoenix. On August 4th, 1958, appellee petitioned the superior court for a change of custody alleging inter alia that the child was not receiving proper care, teaching and education. Following a hearing, an order was entered changing the custody from appellant to appellee during the school year. Review of that order is here sought.

Continuing jurisdiction to amend, change or alter the provisions of a decree relating to the custody of minor children is expressly recognized by statute, A.R.S. § 25-321. It is, however, the rule that as a condition to modification of custodial provisions there must be shown a change of circumstances materially affecting the welfare of the child. Galbraith v. Galbraith, 88 Ariz. 358, 356 P.2d 1023; Ward v. Ward, 88 Ariz. 130, 353 P.2d 895; Schulze v. Schulze, 79 Ariz. 86, 284 P.2d 457; Davis v. Davis, 78 Ariz. 174, 277 P.2d 261. In matters pertaining to custody the best interest of the child is the primary consideration of the court; so where a change of custody is sought, it must be shown that the welfare of the child will be advanced by the change. Cone v. Righetti, 73 Ariz. 271, 240 P.2d 541. The trial court is in the best position to judge what will be in the best interest of the child but if the record shows an abuse of sound judicial discretion this Court will not hesitate to reverse or modify. Galbraith v. Galbraith, supra; Ward v. Ward, supra; Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P. 717; McFadden v. McFadden, 22 Ariz. 246, 196 P. 452.

Appellant is a member of a religious group known as Jehovah's Witnesses. Apparently she became affiliated with this religious group some time prior to her divorce since the counterclaim in the divorce action alleged such affiliation. Pursuant to their beliefs appellant instructed the minor child not to salute the flag of the United States of America and not to participate in school activities where allegiance is pledged, and kept the child home on the day of the Christmas play. Appellant's testimony is illustrative of her attitude:

'Q. All right, do you object to the child saluting the flag? A. Yes.

'Q. Do you object to the child pledging allegiance to the flag? A. Yes.

'Q. Do you object to the child observing or participating in Christmas plays in school? A. Yes.

'Q. Even though all of the rest of the children or most of them, participate? A. Yes.'

The Jehovah's Witnesses teach that the obligation imposed by Law of God is superior to laws enacted by governments. As one of their religious beliefs they consider that the flag is an image within the literal version of the Bible, Exodus, Chapter 20, Verse 4--'Thou shalt not make unto three any graven image,' and that the pledge of allegiance to the flag is a form of worship violating God's commandment against idolatry.

The lower court stated during the course of the trial:

'* * * unless the court is satisfied that Mrs. Smith is willing to forego those beliefs as far as her child is concerned, I certainly feel that there is some justification for a change of custody in this case.'

and in pronouncing judgment:

'It is the judgment of the court Mrs. Smith that you attitude in that respect tends to bring ridicule upon your son. It tends to implant into his mind intolerance for his father's beliefs; and as long as that attitude prevails, I feel in all fairness you are not a fit and proper person to have his care and custody.'

and thereafter:

'You don't love him enough Mrs. Smith--although the court has repeatedly put this question to you--to forego your religious beliefs to the extent of letting him acquire some of the religious beliefs and the normal activities that children enjoy and participate in in the public schools.'

Following the decision by the United States Supreme Court in Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493; cf. State of Arizona v. Davis, 58 Ariz, 444, 120 P.2d 808, the State Board of Education of West Virginia adopted a resolution ordering that a salute to the flag become a regular part of the program of activities in the public schools. Failure to conform was considered disobedience and was dealt with by expulsion. A child so expelled could be proceeded against as a delinquent and his parents liable to prosecution, a fine and jail term. On the complaint of one Walter Barnette and others asserting an unconstitutional denial of religious freedom, of freedom of speech, of the due process and equal protection clauses of the Fourteenth Amendment, the Supreme Court of the United States determined that the action of the State Board of Education in compelling the flag salute transcended constitutional limitations. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. The Court observed that it was dealing with a compulsion to declare a belief, and an affirmation of an attitude of mind, that to sustain the flag salute as compulsory, it was necessary to say that the Bill of Rights which guarded the right to speak one's mind left it open to public authorities to compel the individual to utter what was not...