Stapley v. Stapley, 1
| Citation | 15 Ariz.App. 64,485 P.2d 1181 |
| Decision Date | 16 June 1971 |
| Docket Number | No. 1,CA-CIV,1 |
| Parties | Rosemary J. STAPLEY, now Rosemary J. Hallquist, Appellant, v. Walter Keith STAPLEY II, Appellee. 1403. |
| Court | Court of Appeals of Arizona |
Robert P. Davidson, Scottsdale, for appellant.
Laney, Warner & Angle, by Jerry L. Angle and Charles R. Hallam, Phoenix, for appellee.
This appeal questions the sufficiency of the evidence to support an order changing the custody of three minor children from their mother to their father. 1
The parties were divorced in August, 1967, and custody of their three children, then 5, 3 and 1, respectively, was given to the mother with the father to have certain visitation privileges, including alternate weekends and 'on their birthdays, and national holdidays if the children, or any of them, chooses to go with their father on said visits.' In December, 1968, the father petitioned the court to modify the custody provisions of the decree because 'a certain amount of confusion' had developed with respect to his visitation privileges. In February, 1969, an order was entered modifying the divorce decree as to his privileges. It specifically detailed his visitation rights on weekends, holidays, and during the summer months and further ordered that neither party:
'* * * shall remove said minor children, or cause, or permit said minor children to be removed from the State of Arizona without the consent thereto of the other party hereto being first obtained in writing, or an order of this court being first obtained permitting such removal.'
The following July the father petitioned for a change of custody on the grounds that the mother had refused to comply with the prior order of the court in that certain visitorial rights had been denied him, that the mother and her new husband had informed him that he would not be allowed with the minor children, and that the mother contemplated removal of the children from Arizona without obtaining court authorization. He further alleged changed circumstances in that the mother thad remarried, and she and her husband were continuously engaged in a course of conduct contemplated to alienate the minor children from the father and to prevent him from visiting with his children. The 'home atmosphere' created by the mother was jeopardizing 'the health, safety, morals and general welfare of the minor children,' it was asserted. Another petition was filed two weeks later alleging that the mother and her husband had in fact removed the children from the State of Arizona to California.
The mother's response admitted that the father would have been entitled to visit with the children on the days he claimed he was denied visitation rights and that she had removed the children from the State without obtaining permission from the court or the father. She claimed that she did not wilfully violate the court orders or what she believed to be 'the spirit of the orders' and that although she was advised by counsel as to what the court order said, she did not believe 'it meant what it literally said.'
An extensive hearing was held with respect to the mother's purported contempt and the father's claim of 'changed circumstances.' The record of this hearing reflects the following. The mother had married one Raymond Hallquist and both were very devout members of the Jehovah's Witness sect. The new husband set the policies for the household and all decisions were made by him. The children were being indoctrinated in the tenets of the Jehovah's Witnesses: that the flag is a pagan symbol and it is evil to salute it or pledge allegiance to it or to participate in any governmental function, including voting and serving in the armed forces; that it is wrong to celebrate Christmas and Easter; and that if the laws of the State of Arizona or the United States are in conflict with their interpretation of the Bible, they are at liberty to disregard the law insofar as it does conflict. The children accompanied the mother and her husband when they went out 'servicing', i.e., knocking on doors to obtain converts to their religion. The oldest child, then age 7, was required to sell weekly the religious publication 'Watchtower' in shopping centers such as Christown.
The mother and her husband both testified that they did not believe in blood transfusions and that if one of the children should be seriously ill or injured and a blood transfusion necessary to save its life, they would not consent to a transfusion. The mother also admitted, in response to questioning by the court, that if a child needed medical treatment and she had the opportunity to contact the father to consult him with regard to such treatment, she would not do so. The parties, however, admitted the court that their differences as to child custody were derived from the difference in religious beliefs.
On September 18, 1969, a formal order modifying the divorce decree was entered. The father's request for a change of custody was denied, but his visitation privileges were even more specifically delineated so that the mother could not subsequently claim that she did not understand them. It prohibited removal from the State of Arizona, either permanently or temporarily, 2 without first obtaining the written consent of the father or a court order prior to such removal and decreed:
The order prohibited the mother from taking or allowing the children to be taken to any public place for the purpose of selling, offering for sale or exposing for sale any newspaper, magazines, periodicals or other merchandise as referred to in A.R.S. § 23--235 and stated that a violation of the spirit or intent of this order would be punishable as a contempt of court. The court found that the mother had wilfully violated prior orders of the court by denying the father visitation rights, adjudged her in contempt for such wilful violation, and directed that she might purge herself of said contempt by strict compliance with the divorce decree as modified.
In December, 1969, the father again petitioned for a change of custody, once again alleging the mother's disregard of the court orders, namely with respect to visitation, notification of illness, and allowing the children to be taken to public places for the purpose of selling, offering and exposing for sale magazines and periodicals. In response to the father's petition, the mother denied contumacious violation of any orders of the court since the September 17, 1969 order and alleged that her failure to advise the father of one child's illness on one occasion and her failure to permit visitation 'were the result of extenuating circumstances which will be made apparent through (sic) the Court' and that 'the said 'failures' were the result of concern for the welfare of the children, rather than any contempt for the orders of this Court.'
A lengthy hearing was conducted, both parties presenting evidence in support of their respective positions. In addition, the court questioned the mother as to her attitude towards blood transfusions. The tenor of the questioning reflects a grave concern on the part of the court as to what would happen in the event a blood transfusion was necessary:
A. That's right.
Q. But you would have the knowledge and incentive by virtue of this Court order to comply with it; is that correct?
A. Yes, I do have that knowledge.
* * *
* * *
Q. Getting back to the blood transfusion question I asked you before, you had some difficulty in bringing yourself around to calling Mr. Stapley when you took the boy to a doctor on at least one occasion. You said that you were kind of avoiding the issue.
A. Yes.
Q. So you were several days late in calling him?
A. No, I think it was one day.
Q. One day, and does that relate to the same reluctance and difficulty that you referred to with respect to a blood transfusion? It is an annoying subject matter?
A. I called Keith twice after that. I really, Your Honor, have attempted--I believe that I have gotten better.
Q. How would you react if you really had a bad emergency--
A. I think I would--
Q.--And Mr. Stapley was not available, he was on a vacation or out of town on business and you were in the emergency ward of Good Samaritan Hospital and Dr. John R. Green or some competent neurosurgeon said if the boy doesn't have an immediate whole blood transfusion he will die? What will you do then?
A. I would recommend a plasma expander or a saline solution.
Q. But unless you could make the decision that of Mr. Stapley's by his being available, you would not give the okay yourself for whole blood or a plasma transfusion?
A. No.
Q. He would have to personally do that?
A. That's...
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