Johns v. Johns

918 S.W.2d 728, 53 Ark. App. 90, 1996 Ark. App. LEXIS 208
CourtCourt of Appeals of Arkansas
DecidedApril 3, 1996
DocketCA 95-92
StatusPublished
Cited by9 cases

This text of 918 S.W.2d 728 (Johns v. Johns) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johns v. Johns, 918 S.W.2d 728, 53 Ark. App. 90, 1996 Ark. App. LEXIS 208 (Ark. Ct. App. 1996).

Opinions

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 counterpetition 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 noncustodial 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 they’re little so they won’t — you know— depart from that. I think it’s 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).

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 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).

Appellant’s ffeedom-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 appellant’s freedom of religion. Because the chancellor’s 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 chancellor’s 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 chancellor’s 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 chancellor’s 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.

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Bluebook (online)
918 S.W.2d 728, 53 Ark. App. 90, 1996 Ark. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-v-johns-arkctapp-1996.