Johns v. Johns

Randy JOHNS v. Rachelle (McGilvray) JOHNS

CA 95-92                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered April 3, 1996


1.   Appeal & error -- chancery cases -- standard of review --
     special deference to chancellors in child-custody matters. --
     Although this court reviews the evidence in appeals from
     chancery courts de novo, the decision of a chancellor is not
     reversed unless it is shown that it was clearly contrary to a
     preponderance of the evidence; special deference is shown to
     findings and rulings made by chancellors in child-custody
     matters because of the special care that is required and the
     unique opportunity of the chancellor to evaluate the evidence
     and assess the credibility of witnesses.

2.   Parent & child -- custody and visitation -- primary
     consideration is welfare and best interest of child. -- It is
     fundamental law in Arkansas that the primary consideration in
     both custody and visitation cases is the welfare and best
     interest of the child; all other considerations are secondary.

3.   Parent & child -- custody and visitation -- noncustodial
     parent ordered to see that his children attend Sunday School
     and church -- chancellor's decision affirmed -- no indication
     routine was detrimental to children. -- Where the chancellor
     ordered appellant, the noncustodial parent, to see that his
     children attended Sunday School and church while in his
     custody during visitation, the appellate court, after
     conducting a de novo review of the evidence, concluded that
     the chancellor's decision should be affirmed; although the
     initial divorce decree and all other orders supplemental to it
     made no reference to church attendance, the record showed that
     appellee, the custodial parent, had been following a
     consistent course of religious instruction for the children at
     all relevant times since the divorce occurred, that the
     children had attended church with her on a regular basis but
     that they did not attend church services when they visited
     appellant, that Sunday nights were "difficult" when the older
     child did not attend church services when she visited
     appellant, and that it was "very important that they have that
     in their life"; the appellate court declared that the
     chancellor was justified in considering the concern expressed
     by the custodial parent about the need for consistency in the
     church attendance routine, especially where there was no
     indication that the routine was in any way detrimental to the
     health and welfare of the children.

4.   Parent & child -- custody and visitation -- chancellor had no
     reason to order appellee to do what she had already undertaken
     to do. -- The appellate court found unpersuasive appellant's
     argument that the chancellor abused his discretion by ordering
     appellant, and not appellee, to see that the children attend
     Sunday School and church services because appellee testified
     that she had attended Sunday School and church services with
     the children for as long as they had been with her; the
     chancellor had no reason to order the appellee to do what she
     had already undertaken to do, especially absent any proof that
     appellee would discontinue that practice.

5.   Constitutional law -- freedom of religion -- claim was without
     merit. -- Appellant's freedom-of-religion claim was without
     merit where the chancellor did not order him to attend
     religious services but instead ordered that he see that his
     children did so in order to maintain consistency in the
     religious regimen that their mother has set for them;
     therefore, no limitation was placed on appellant's freedom of
     religion.

6.   Parent & child -- custody and visitation -- incovenience does
     not justify setting aside order consistent with best interest
     of children. -- Where appellant argued that the chancellor's
     order constituted an impermissible encroachment on his
     visitation rights by requiring him to devote part of his
     visitation time to activities instituted by the custodial
     parent, the appellate court did not agree; even if the
     requirement to see that his children attended Sunday School
     and worship inconvenienced appellant, that inconvenience did
     not justify setting aside the chancellor's order when what the
     chancellor ordered was consistent with the best interest of
     the children; in visitation issues, the primary consideration
     is what is in the best interest of the children, not what is
     most convenient for the parent seeking to exercise visitation
     rights; the record contained no proof that the asserted
     inconvenience would rise to the level of a deprivation of a
     protected right; further, appellant offered no proof to
     establish that consistent Sunday School and church attendance
     was contrary to the best interest of the children.

7.   Parent & child -- custody and visitation -- chancellor acted
     within discretion. -- Under the circumstances, the appellate
     court held that the chancellor acted within the discretion
     afforded him in making his order.


     Appeal from Phillips Chancery Court; Bentley E. Story,
Chancellor; affirmed.
     Charles P. Allen, for appellant.
     Ralph C. Murray, for appellee.

     Wendell L. Griffen, Judge.*ADVREPCA4*                  EN BANC





                                   CA 95-92

                                                April 3, 1996


RANDY JOHNS                        AN APPEAL FROM PHILLIPS
               APPELLANT           COUNTY CHANCERY COURT


V.                                 HON. BENTLEY STORY, CHANCELLOR


RACHELLE (MCGILVRAY) JOHNS                
               APPELLEE            AFFIRMED




                   Wendell L. Griffen, Judge.

    Randy Johns appeals from the July 8, 1994, order by the
Phillips County Chancery Court that he see that his two minor
children attend Sunday School and church during his visitation
every other weekend.  Appellant and appellee were divorced November
10, 1988.  The divorce decree awarded appellee permanent custody of
the children subject to the reasonable visitation rights of
appellant.  On December 1, 1993, appellant filed a petition seeking
a contempt citation against appellee for allegedly refusing to
permit him visitation with the younger of the two children, Ryan
Randall Johns.  On January 7, 1994, appellee filed a response to
that petition and asserted a counter-petition alleging, inter alia,
that appellant had not complied with prior understandings regarding
the children attending religious services during the time that they
visited him.  The chancellor conducted an evidentiary hearing on
April 1, 1994, which resulted in the order to which appellant takes
exception, specifically that portion of the order which reads as
follows:
    . . . the Defendant, Randy Johns, is hereby Ordered to see
    that the children attend Sunday School and Church while they
    are in his custody during his visitation.

    Appellant argues that the chancellor abused his discretion in
rendering this order because there was, according to appellant, no
material change in circumstances which justified an order that he
see that the children attend Sunday School or church services. 
Next appellant contends that the appellee was not ordered to see
that the children attend Sunday School or church services while
they were in her custody.  Finally, appellant argues that although
church attendance may well be a positive factor, the constitutional
guarantee of freedom of religion found in the First Amendment to
the Constitution of the United States means that non-custodial
parents may not be compelled  to see that their children attend
church services and Sunday School during visitation.
    This appears to be a case of first impression in Arkansas. 
However, the controlling principles of law that govern child
custody and visitation disputes are well-settled.  Although this
court reviews the evidence in appeals from chancery courts de novo,
the decision of a chancellor is not reversed unless it is shown
that it was clearly contrary to a preponderance of the evidence.  
Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Larson v.
Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995); Thigpen v.
Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987).  Special
deference is shown to findings and rulings made by chancellors in
child custody matters because of the special care that is required
and the unique opportunity of the chancellor to evaluate the
evidence and assess the credibility of witnesses.  Larson v.
Larson, supra; Ideker v, Short, 48 Ark. App. 118, 892 S.W.2d 278
(1995).  And it is fundamental law in Arkansas that the primary
consideration in both custody and visitation cases is the welfare
and best interest of the child, with all other considerations being
secondary.  Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839
(1989); Welch v. Welch, 5 Ark. App. 289, 635 S.W.2d 303 (1982).
    After conducting a de novo review of the evidence, consistent
with the aforementioned principles of law, we conclude that the
decision of the chancellor should be affirmed.  Although the
initial divorce decree and all other orders supplemental to it make
no reference to church attendance, the record shows that appellee
has been following a consistent course of religious instruction for
the children at all relevant times since the divorce occurred. 
Appellee testified that the children had attended church with her
on a regular basis, but that they do not attend church services
when they visit appellant.  Appellee also testified that when the
older child, Casey, did not attend morning church services when she
visited appellant,
    . . . it is kind of difficult on Sunday nights, because she is
    laxed (sic) all day.  As they get older, I am concerned about
    the teenage years, when they start wanting to kind of do     
    what they want to do.  I want that to be---you know---in their
    life when theyþre little so they wonþt---you know---depart
    from that.  I think itþs very important that they have that in
    their life. 

The chancellor was certainly justified in considering this concern
expressed by the custodial parent about the need for consistency in
the church attendance routine, especially where there was no
indication that the routine was in any way detrimental to the
health and welfare of the children.  See Clark v. Reiss, 38 Ark.
App. 150, 831 S.W.2d 622 (1992).
    Appellantþs argument that the chancellor abused his discretion
by ordering appellant, and not appellee, to see that the children
attend Sunday School and church services is unpersuasive because
appellee testified that she had attended Sunday School and church
services with the children for as long as they had been with her. 
That testimony was consistent and unrebutted.  The chancellor had
no reason to order the appellee to do what she had already
undertaken to do, especially absent any proof that appellee would
discontinue that practice.  See McFarland v. McFarland, 318 Ark.
446, 885 S.W.2d 897 (1994).
    Appellantþs freedom of religion claim is without merit.   The
chancellor did not order him to attend religious services, but
rather that he see that his children did so in order to maintain
consistency in the religious regimen that their mother has set for
them.  Therefore, no limitation has been placed on appellantþs
freedom of religion. Because the chancellorþs order imposes no duty
on him to attend, appellant is free to attend or not attend the
services with the children.
    Appellant also argues that the chancellorþs order constitutes
an impermissible encroachment on his visitation rights by requiring
him to devote part of his visitation time to activities instituted
by the custodial parent.  We do not agree with that premise.  Even
if the requirement to see that his children attend Sunday School
and worship does inconvenience appellant, that inconvenience does
not justify setting aside the chancellorþs order when what the
chancellor ordered is consistent with the best interest of the
children.  In visitation issues, the primary consideration is what
is in the best interest of the children, not what is most
convenient for the parent seeking to exercise visitation rights. 
Even parents who live with their children endure certain
inconveniences and hardships related to the parenting function.  
The record contains no proof that the inconvenience appellant
claims will ensue from complying with the chancellorþs order would
rise to the level of a deprivation of a protected right.  Also, 
appellant has offered no proof to establish that consistent Sunday
School and worship attendance is contrary to the best interest of
the children.
    We note that there was no evidence disputing the testimony from
appellee that appellantþs refusal to see that the children attend
Sunday School and worship services during his visitation has begun
to have undesirable effects on one of the children.  Moral
instruction is, like every other aspect of education, the result of
accumulated and consistent effort over time.  Because appellant has
the right to visit his children every other week, his refusal to
see that they attend Sunday School and worship services would mean
they would miss half of the possible opportunities for the moral
instruction that their mother has been trying to instill.  Although
we express neither approval nor disapproval for whatever religious
beliefs the children may be learning, the fact remains that
appellant offered no alternative method for instructing his
children in moral values during the time that they would have
otherwise been receiving that instruction through Sunday School and
church attendance.  Under these circumstances, we find that the
chancellor acted within the discretion afforded him in making his
order.
    We reach our decision mindful that there are numerous
situations similar to the one involved in this case where divorced
parents may differ concerning the routine that their children
should follow.  We recognize that the children will necessarily
become the objects of those differences in some, if not many,
instances, and that it is not possible for appellate courts to
craft hard and fast rules in individual cases that will fit every
situation.  We are sensitive to the unique difficulties that these
disputes present for chancellors faced with pleas by parents with
many motivating influences and children whose lives will turn on
the decisions that are reached.   Nevertheless, until controversies
of this nature cease it will be necessary for someone to decide
them.  Chancellors are accorded considerable deference in their
decisions concerning these matters precisely because they are, in
the vast majority of instances, familiar with the factual
background and procedural history of the cases.  Their decisions
will not be infallible; they are reviewable de novo by this court
and subject to reconsideration at the trial level upon proof of a
change in circumstances.  However delicate the area of controversy
may be, it is the manifest duty of chancery courts to resolve these
disputes, and the fact that their decisions will displease one or
even both parties must not become a reason for judicial inertia at
times when action is both necessary due to the disputing parents
and vital in order to protect the best interests of the children. 
    Affirmed.
    Stroud, J., joins in this opinion.
    Pittman, J., concurs.
    Cooper, Rogers and Robbins, JJ., dissent.
*ADVREPCA4-A*
                                  EN BANC



                                        CA95-92

                                                          April 3, 1996


RANDY JOHNS                             APPEAL FROM THE PHILLIPS COUNTY
         APPELLANT                           CHANCERY COURT

VS.                                     HON. BENTLEY STORY,
                                        CHANCELLOR

RACHELLE (McGILVRAY) JOHNS              DISSENTING OPINION
         APPELLEE







                          James R. Cooper, Judge.


    I respectfully dissent from the decision reached by the
prevailing opinion in the case at bar requiring the noncustodial
parent to take the children to church and Sunday School while in
his custody during visitation.  I do not believe that courts
should engage in the enforcing of church attendance, even when it
involves minors.  "[I]ntervention in matters of religion is a
perilous adventure upon which the judiciary should be loath to
embark."  Wojnarowicz v. Wojnarowicz, 48 N.J. Super. 349, 354, 137 A.2d 618, 621 (1958).  
    The First Amendment of the United States Constitution made
applicable to the states through the Fourteenth Amendment commands
that a state "shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof."  See also Ark.
Const. art. 2,  24.  This language has been interpreted as
committing the states to a position of "neutrality" between
religions.  Epperson v. Arkansas, 393 U.S. 97 (1968).  
    Courts in other jurisdictions have refused to enforce orders
requiring church attendance on constitutional grounds.  The Court
in In re Marriage of Oswald, 847 P.2d 251 (Colo. App. 1993), in
reversing the trial court's order providing for the grandmother to
take the children to church on Sundays, stated that "even if the
mother was providing no religious instruction for the children, the
trial court's order could not stand.  Such an attempt to control
religious decisions is constitutionally impermissible."  847 P.2d 
at 253.  In Watts v. Watts, 563 S.W.2d 314 (Tex. Civ. App. 1978),
the trial court conditioned the mother's visitation on taking the
children to Sunday School and to a church of her choice during
visitation.  The father contended on appeal that the trial court's
decision did not infringe on any constitutional right of the mother
since she was permitted to take the children to any church and was
not herself required to attend.  The Texas Court of Appeals stated:
    Although this contention may be correct, we are concerned
    also with the constitutional rights of the children.  It
    is commendable that the trial court wishes to insure
    proper religious training for the children, but it is
    conceivable that the children may decide they do not wish
    to receive religious training.  This is a matter which the
    court should not attempt to control other than by its
    award of managing and possessory conservatorship.  Any
    order specifically requiring religious observance or
    religious instruction is contrary to the basic principle
    embodied in Art. I,  6, that religion is a matter of
    private conscience with which the state, by its courts or
    otherwise, is forbidden to interfere.
    
563 S.W.2d  at 317.

    Other courts have refused to impose upon the noncustodial
parent the burden of policing the religious instructions of the
custodial parent absent a showing of emotional or physical harm to
the children.  See Brown v. Szakal, 212 N.J. Super. 136, 514 A.2d 81 (1986) (citations omitted).  Courts have refused to restrain the
noncustodial parent from exposing the minor child to his or her
religious beliefs and practices, absent a clear and affirmative
showing that these religious activities will be harmful to the
child.   Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606 (1981); 
In re Marriage of Murga, 103 Cal. App. 3d 498, 163 Cal. Rptr. 79
(1980).  
    The case at bar is analogous to those cases in which there is
a conflict between the divorced parents regarding the religious
faith and training of the children.  See Annotation, Religion as
Factor in Child Custody and Visitation Cases, 22 A.L.R. 4th 971
(1983).  In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971),
the Court stated:
         The courts are reluctant * * * 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.

                             * * * 

         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.

79 Wash. 2d  at 812-13, 489 P.2d  at 1135 (citations omitted).

This rule has been adopted to protect both parents' rights to
expose their children to their religious beliefs.  Pater v. Pater,
63 Ohio St. 3d 393, 588 N.E.2d 794 (1992).  
    Most disputes involve conflicting religious practices between
the divorced parents, however, the same principles have been
applied equally when one parent practices no religion.  See Khalsa
v. Khalsa, 107 N.M. 31, 751 P.2d 715 (1988); Robert O. v. Judy E.,
90 Misc. 2d 439, 395 N.Y.S.2d 351 (N.Y. Fam. Ct. 1977).  Therefore,
courts should not interfere when a parent has chosen not to
participate in religious services during visitation with children
any more than it should enjoin a parent from attending any
particular denomination of religious service without a showing of
harm to the welfare of the child to justify this intrusion into a
parent's religious freedoms.  A parent's rights should not be
viewed differently in the event that they choose not to practice
any religion or choose not to practice a specific religion on a
regular basis.  
    I strongly believe that our courts should adhere to a policy
of impartiality between any particular form of worship or lack of
worship and should be reluctant to interfere with the religious
faith and training of children.  Should intervention be deemed
necessary in this sensitive and constitutionally protected area, it
should be done so only where there is a clear and affirmative
showing of harm to the children and the remedy should be one which
results in the least possible intrusion upon the constitutionally
protected interests of the parents and children.  See LeDoux v.
LeDoux, 234 Neb. 479, 452 N.W.2d 1 (1990).
    Robbins and Rogers, JJ., join in this dissent.