Appendix — Allison v. Ovens

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' . INDEX TO APPENDIX

Appenidix A (Superior Court of Maricopa County’s

Findings of Fact, Conclusions of Law and Judgment,

dated September 13, 1965) sssstersnseensegecsesensssnsssssenes

Appendix B- (Opinion of Supreme Court of Arizona in

Allison vs. Chatwin, dated October 28, 1965 (on

petition for certiorari re: supercedea$) . suceanineiaeneds

Appendix C (Opinion of Court of Appeals of Areous,

- Division One, affirming custody award of Superior

Court of Maricopa County, dated December 29,

1966) ssjenohienicalliebidihonteuleinneseseaiseneaeampnabimnatdons

Apperidix D ‘(Order of the Supreme Court of Arizona .

granting Petition for write dated March 29, .

1967) ---cececnessssevsevsienseeecesnesseleccsestaessesencenercneneseens :

Appendix E (Opinion of “Supreme Court Pr) Arizona

affirming in part and reversing in part the decision

_of the Court of Appeals of Arizona, Division One) ..

Appendix F (Petition for Rehearing; Or, In The Alter-

native, Notice of Intention to Petition the United

States Supreme—Court—for a Writ of —Certiorari;

-Petition for a Stay of the Mandate Pending Review

AT

A26

by the United States Supreme Court; Or, Petition for - ,

a Temporary Stay of the Mandate Pending a Peti-

tion to the United States Supreme Court for a Stay

‘of the Mandate Pending Review by the. United States

_ Supreme Court, filed November 27, 1967) ............

Appendix G (Order of Arizona Supreme Court denying

Petition for Rehearing, etc., dated January T6, 1 968), A38

Appendix H (Mandate and Judgment of the Arizona

- Supreme Court dated January 10, 1968) aes aacananien

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A-1

APPENDIX A.

SUPERIOR COURT OF MARICOPA

- COUNTY'S FINDINGS OF

FACT, CONCLUSIONS OF

LAW AND JUDGMENT f

“4

This matter haying come on regularly for hearing Before the

‘Court on. the 28th and 29th days of June, 1965, and thereupon.

adjourned to the 24th, 25th and 26th days of August, 1965, and

the Court having heard the evidence and argument of counsel,

took the matter under advisement, and now, being fully advised

in the premises, makes findings of - fact, conclusions of law, and

enters judgment as follows:

FINDINGS OF FACT

That substantial changes have occurred concerning the proper

parent. to have custody of the minor children of the parties herein

since the order of this Court, dated June 11, 1959, in } the follow-

ing particulars: |

a) The Defendant-Petitioner since e Septembér 23, 1963 has

re-married; his present-wife Vivian, formerly a widow, is a re-

spected and highly regarded housewife and maintains a very or-

derly house for the Ovens children and appeats to ‘be devoted to

said children, not having had any children of ,her own.

b). The environment of the Ovens home is conducive to a

wholesome life for the minor children; they are helped with their

school work, taken to church each Sunday and reside in the home

and neighborhood in which they were-originally reared and in

wholesome surroundings. —

c) The Plaintiff-Respondent, since her divorce from the De-

' fendant, has developed a pattern charactarized {sic} by associat-

ing with and did marry. two men with-criminal records and is

presently living with her third husband, who has a criminal rec-

ord and said last marriage of the Plaintiff occurred since September

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' 23, 1963; that such a stepfather is not conducive to developing

minors into good citizens and is detrimental to their ingivignent =i

* his present wife about November 1, 1964; that Terrance is now ‘

doing well in school, a tate to be happy and well adjusted in ;

-dulged in in said home; the children are not take

welfare. . :

d) The Plaintiff, win presently has custody of Kevin, James

Brian and Terrance, had permitted ‘her present husband R. J.

Allison to live at her home prior to their marriage.

e) ‘The present home life of said minors, above named,-is not

conducive to a well-balanced life in. that excessive a is in-

to church on

Sunday; obscene language is used in their preserice, and there

is a definite lack of propeg parental guidance.

f) That Terrance was ill on many occasions while in-the~

Allison home, missed many, days at school and did very. poorly

in school until he commenced to live with the Defendant and

the Ovens home. |

g) That Kevin Geum is in need of Pircliclonioel an Psy-

chiatric Evaluation by a competent practicing child phychiatrist.

~h) That Plaintiff-Respondent has failed°and refused to comply ;

with the order of this Court, dated June 11, 1959, which required

Plaintiff to maintain the. minor eames in sirens couaa

ondary schools.

i) The Ovens children living with Delindene are adequately

clothed and well groomed as contrasted to the Ovens children

living with the Allison family, who’ when visiting in the Ovens

_ amount of $90,000 for the higher education of the children of _

home have to be furnished ample and clean clothing so they can

attend church and likewise when taking trips with. -the Ovens

children who reside with the ven

2. The Court finds that the parties hereto have entered i into an

__ irrevocable express trust prior to their divorce of December 12,

1958, in which there now appears to be funds in the approximate

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the parties herein, which trust was created from community prop-

erty and provides that the children shall attend a Catholic college

if they are able to procure their desired curriculum at a Catholic

college; otherwise, they may attend any other college and use

funds from the trust for that purpose.

‘That Clare Ovens, while once enrolled in the fall of 1964 in

a Catholic college, later withdrew her — and attended ~

- Phoenix Junior College. “0

Following the marriage of the Plaintiff and R. m3 Allison in - . ;

August, 1964, Clare Ovens was seen alone in the company of R.

7 Allison late at night, in a compromising position, and on other

occasions was observed in a night club dancing with said step- ”

father. : }

That Jennell attended a Catholic ia in Samell during

1964, and all expenses in connection therewith were paid from

the trust. |

That Michael - ‘Ovens has: beén attending a Catholic college

atid his expenses have been paid from said trust.

"That the Defendant-Petitioner takes the position that if the

provisions of the trust are not followed by the older children, now —

ready for college, that he should not be tequired to Pay the sum

of $100 per month during the school year.

_. The Plaintiff-Respondent takes the position that she and the

college-age girls can disregatd the. trust, which she has jointly

executed, and if the children don’t abide by: the terms of the

trust, that the. Defendant still haS to pay $100 per month for the

entire yéar. : |

That this Court further finds that it would not be’ equitable

for Defendant Ovens to be required to furnish college support

money twice for the children. That the trust provides for sup-

port, maintenance and educational funds for the benefit of the

children of the parties, as is set forth in paragraph 10 of the

original decree entered in this.Cause on December -12, 1958.

«

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' AA

"That the children of the parties Clare and Jannell. may choose

their own college but required to make the financial arrangements.

G

That this Court should not require the Defendant to provide

funds for any other school not covered under the Trust Agreement.

CONCLUSIONS OF LAW

That during the summer months, when school is not in ses-

sion, the Defendant should continue to pay $100 per month

support money until further order of the Court for Clare and

Jannell. |

' The Court concludes, based on the findings of. fact set forth

heretofore that: ¢

1. That the circumstances shown by the proof to this Court

require modification of the decree of June 11, 1959, modifying

said decree with respect to the care, custody arid control of the .

minor children, Terrance, James Brian, and Kevin.

_2. That the best interests and welfare of the minor children,

Kevin, James Brian and Terrance, requires that they be awarded -

to the defendant father, effective forthwith, with reasonable visi- -

tation privileges to the mother-plaintiff herein.

3. That support ao of said children shall terminate as

of August 30, 1965.

4. That the welfare of Kevin requires that he be submitted to .

a psychiatrist selected upon stipulation by counsel for the parties,

subject to the approval of this Court. |

5. That Kevin shall remain a ward of the Court, -until further

order pending the results of said examination.

6. That the defendant-petitioner shall pay respondent-plain- |

. tiff’s counsel fees in the sum of $250; that the remaining attor-

ney’s fees due respondent-plaintiff’s attorney shall be paid by te

plaintiff, together with her costs expended thereon.

7. That it is absolutely essential, in of the minor children,

Terrance, James Brian, and Kevin, in the event of an appeal,

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that they be temporarily awarded to the custody of the defendant

father herein, pending said appeal, and in furtherance thereof, .

until a final determination may be’ made. |

*s JUDGMENT

_ In accordance with the foregoing findings of fact and aad

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- sions of law,

IT Is THEREFORE ORDERED, ADJUDGED:> AND DE-

. CREED that the order of the Court of June 11, 1959, at line.

12 of page two and at line seven, page five, be Seaiine modified

and changed in the following particulars:

“That the care, custody and control of the minor children of

the parties, to-wit, Kevin, James Brian and Terrance Ovens, be

and hereby is awarded to the defendant father, James Ovens,

with reasonable visitorial rights to the mother-plaintiff, Chry!

Ovens.” |

* * *

. “That the defendant shall pay to the plaintifi as and for the

\ support and maintenance of the mirior children of the parties

} the sum of $200 per month for each child of the parties in the

custody of the plaintiff pursuant to the order of this Court,”

be and it is hereby amended not to require the defendant father

to pay child support forthe children awarded to him, to-wit,

Kevin, James Brian, and Terrance Ovens, and further, that the

defendant father should not be requised to pay child support

to Clare and Jannell Ovens, since they have the option of attend-

ing college under the provisions*of the trust agreement set up

__ by the parties for their support, education and welfare.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED

that pending any appeal that may be filed, that the care, custody

and-control of the minor children, Terrance, James Brian, and

Kevin, be awarded to the defendant father, in furtherance of any

appeal that might be taken herefrom, in order to guard the health,

safety and welfare of the heretofore. mentioned children, until a

final determination may be made.

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That the costs of this action be taxed against the individual

parties, and that defendant pers unto plaintiff's counsel $250 as

and for. attorney’s fees.

DATED this 13 day of September, 1965.

/s/ Kenneth C. Chatwin

Judge‘ of the Superior Court

Copy oi the foregoing received this ~

13 day of September,1965:

/s/ John Dickinson

John Dickinson,

Attorney for Plaintiff .

/s/ Chatles M. Brewer

Charles M. Brewer,

Attorney for Defendant

APPROVED AS TO FORM this 13 day

of September, 1965: Ae

/s/ John Dickinson

John Dickinson |

Attorney for Plaintiff |

/s/ Charles M. Brewer

» Charles M. Brewer

. Attorney for Defendant

[Vol. 1034, pp. 236-242)

(FILED: September 13, 1965) ,

A-7 |

APPENDIX B

407 P.2d 69 |

99 Ariz. 99 -

Chyrl ALLISON, Petitioner

a VS. ~ | |

Hon. Kenneth CHATWIN, Judge of Superior

Court, County of Maricopa, Arizona and James

Ovens, Jr., Real Party in Interest, —

No. 8687.

Supreme Court of Arizona.

In -Division.

Oct. 28, 1965.

- Petition for writ of certiorari to review decision fixing super-

sedeas bond. The Supreme Court, McFarland, J., held:that super-

. sedeas bond in amount of $30,000 im child cystody case between

parents was excessive and unreasonable under circumstances and

$4,000 would be reasonable amount. *

Ordered that respondent approve ‘supersedess bond i in amount of *

$4,000 and ‘approve ‘same both as supersedeas and appeal bond.

* * *

Lewis, Roca, Scoville, Beauchamp & Lintoa, by John J. Flynn

and James Moeller, John js Dickinson, Phoenix, for petitioner.

Robert K. Corbin, County Atty., for respondent Judge.

Charles Brewer, Herbert ies Phoenixe for respondent

Ovens. si

McFARLAND, Justice. re aia a

This is a petition for a writ of certiorari to review a decisioty

of the Honorable Kenneth Chatwin wherein he fixed a supersejleas .

bond in the amount of $50,000 in.a child-custody proceeding.

A-8

Petitioner and James M. Ovens, Jr., wete divorced in Maricopa

County in 1958, at which time petitioner Chyrl Allison, was

awarded custody of the ten minor children, who were the pro-

_ geny of that marriage. The proceedings involved in this applica-

tion for the writ of certiorari concern only three of the children—

viz., Kevin, ‘James Bryan, and Terrance. Upon a petition for a

change of custody, respondent court, Honorable Kenneth Chat-

win, entered an order dated August 27, 1965, which was later

reduced to formal judgment on September 13, 1965, transferring

‘custody of these children from the petitioner-mother to the re-

spondent-father, James M. Ovens, Jr. That order.of August 27;

1965, provided that custody of the children s was to be surrendered

- August 31, 1965. aes

Counsel for petitioner immediately filed # notice of appeal and

petition to fix supefsedeas bond, and was advised by the respondent

- court that counsel’ would be informed as to whether or not there

would be a hearing on the supersedeas bond setting. Counsel for

petitioner offered to post an appeal bond immediately, which was

refused. Counsel for petitioner immediately applied to the Court

of Appeals, Division One, for writ of mandamus and writ of pro-

hibition. The Chief Judge of the Court of Appeals entered an

order staying all further proceedings in the cause below until such

time as the Court of Appeals had an informal hearing, which was

set for September 22, 1965, or until such time as the-trial court -

fixed supersedeas bond in a reasonable amount. |

During this time counsel for respondent Ovens was proceeding

by habeas corpus to secure custody of the children. On September

14, 1965, respondent Judge Chatwin cohducted:a hearing, and

thereupon set supersedeas bond in the sum of $50,000.

Petitigner filed this writ of certiorari to review the proceedings,

in which the $50,000 bond was set, alleging that the same was

unreasonable and an abuse of discretion on the part of the re-

sponderit court.

™~

‘ A-9 ‘

In Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907, the © «

lower court had granted a change of custody for a minor child.

~ In discussing the proceedings in the lower court, in regard to the

granting of a supersedeas bond, we said:

“On November 30, 1964, Judge Ogg signed and filed a formal

written judgment in this matter, and on that same date, the

petitioner filed a notice of appeal and a supersedeas bond. The

respondent filed his objections thereto, supported by an affidavit

and a memorandum. On December 7, 1964, after oral argu-

ment, the court entered an order denying the bond as a super: :

sedeas bond and allowing the bond in the sum’ of $250.00 ‘as

a cost bond only. Thereafter, this application for a writ of man-

~ damus was filed.” 97 Ariz. at 294, 399 P.2d at 908.

In ruling upon the case, we stated:

“The application for the writ of mandamus to fix and approve .

the supersedeas bond should be granted. The facts of the present

case fall squarely within the ruling laid down by this court in

the case of Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837,

wherein it. was stated that ,the effect of the supersedeas bond

was merely to preserve the status quo, ‘and not to undo any act

already done in pursuance of the order superseded. But there

was no execution in pursuance of the order appealed from and

for which the supersedeas bond was applied.

“In Application of Lavis, 96 Ariz. 316, 394 P.2d 655, we again

held that the signing of supersedeas bond stayed the execution

in regard to custody of children:

“When a notice of appeal and a supersedeas bond is given,

the superior court loses ail further jurisdiction in the case

except in furtherance of the appeal. Gotthelf v. Fickett, 37

Ariz. 322, 37 Ariz. 413 On Rehearing, 294 P. 837. Further,

‘the approval of a ‘supersedeas bond in an amount fixed by

the court and conditioned in the language of the statute, is a

_ ministerial duty of the court and not a matter of discretion.

See Gotthelf, supra. * * *’

“Legal custody of the minor child was in the mother at the

time the judgment was signed and filed. She is therefore entitled

to the custody ofthe minor child, and it is hereby ordered that

eR ET MN

A-10 |

she continue said custody pieiles appeal, and the order of

November 30, 1964, is entirely superseded.

“It is therefore ordered that.the alternative writ of mandamus

heretofore issued be made permanent. It appearing that the

refusal of the superior court to approve the bond submitted as’

a supersedeas bond was based on grounds other than its con-

ditions or sufficiency, it is hereby ordered that respondent ap-

‘prove the same as both a supersedeas and an appeal bond. ” OF

_ Ariz. at 295, P.2d at 909.

[1] As we stated in the Bailey case, supra, when an appeal is

filed in a case in which custody. of children is changed by the

lower court, it is the duty of the court upon-application to fix a

supersedeas bond, the purpose of which is to preserve the status

quo of the case pending appeal. The court in the instant case, in

its order changing the custody of the children, stated:

“That it is absolutely essential, in order to guard the safety,

welfare and tare of the minor children, TERRENCE, JAMES

BRYAN, and KEVIN, in the event of an appeal, that they be

temporarily awarded to the custody of the defendant father —

herein, pending said appeal,.and in furtherance thereof, until

the final determination be made.” |

{2} It is not within the power of the lower court to cas cus-

tody, of children temporarily pending appeal. This court has held

that in the filing of a supersedeas. bond, the case shall merely be

held in status quo, and the bond shall have no retroactive effect so

as to undo or invalidate any act already done. In Application of

Lavis, 96 Ariz. 316, 394 P.2d 655; Gotthelf v. Fickett, 37 Ariz.

322, 294 P. 837, on rehearing, 37 Ariz. 413; 294 P. 837.

{3, 4] The purpose of the supersedeas bond is to afford the

party appealing from a lower court order to stay any further pro-

ceedings in the cause being appealed until such time as the appeal _

has been ruled upon by the reviewing court. Therefore, the lower.

court, upon notice of appeal, should determine as quickly- as pos-

sible the amount of the supersedeas bond, stay execution for a

reasonable time to permit the party appealing to post the bond,

=

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‘A-11

and thereby stay and preserve the status quo. Otherwise the\effect

might be to render nugatory the purpose ‘of the. supersedeas bond.

Any other procedure would mean that the whole living conditions .

and routine ofthe children would be disturbed by such a transfer

in the event the court’ reversed the lower court's ruling in regard

~ to the custody of the children. —

{5, 6] Petitioner was unable to- give a. bond as large as

$50,000, and by the fixing of this large bond the court defeats

the purpose of a supersedeas bond and prevents holding the case

in status quo. Rules of Civil Procedure, Rule 73 (1), A.R.S., 16

A.R.S., provides that the amount of the supersedeas bond:should -

be “conditioned that the appellant will pay to the opposite party

all damages which such party may sustain by the suspension of .

the order or the stay of proceedings.” A bond should be no larger

than an amount necessary to give this assurance. -We find that

$50,000 was excessive and unreasonable under the circumstances, -

and $4,000 would be a reasonable amount.

It is hereby ordered that the respondent approve the supersedeas

bond in the amount of $4,000, and approve same both as a super-

sedeas and appeal. bond. ae -

LOCKWOOD, C. J., and UDALL, J., concurring.

*

regen ae > ee

- APPENDIX C

421 P.2d 929

4 Ariz.App: 496

Chyrl Merth (Ovens) ALLISON, Appellant,

ape 7 :

James M..OVENS, Jr., Appellee.

No. 1 CA-CIV 310. ‘

Court of Appeals of Arizona.

~~ Dec. 29, 1966.

Rehearing Denied Jan. 26, 1967.

Petition by divorced father to obtain change of custody as to .

three of his children in custody of mother. The Superior Court,

Maricopa County, Cause No. 51803, Kenneth C. Chatwin, J.,

awarded custody of the three children to father and mother ap-

_ pealed regarding change of custody as to two of the three children.

The Court of Appeals, Cameron, J., held that evidence that |

mother since her divorce from father had associated with people

who had criminal records and had married wo such men was

admissible within broad discretion of trial court in determining

what would be most ‘beneficial for children, although it required

consideration by trial judge of evidence upon which a prior adjudi-

cation of custody in favor of mother had been made, and that

evidence warranted change of custody.

Affirmed. .

‘John J. Dickinson, Phoenix, for appellant.

Charles M. Brewer, Jérry H. Glenn, Herbert Mallamo, Phoenix,

for appellee.

CAMERON, Judge.

A-13.

This is an appeal from the judgment. of the trial court modify-.

ing a previous decree of divorce respecting the custody of three

minor children of Dr. James M. Ovens, Jr., and Chyrl Merth

(Ovens) Allison. The three children were awarded to the father

and the mother appeals regarding the cae of custody as to

two of the three children.

We are called upon to determine:

(1). Whether the trial court erred in cotisidering ciel ad-

mitted in a prior hearing and adjudication of custody.

(2). Whether the trial court erred in refusing to suspend the

rule excluding witnesses from testifying who have sat in

the courtroom and watched the proceedings. ©.

(3). Whether the trial, judge erred by basing his judgment on

'. facts which the ‘appellant alleges he could not ,onsider

under the 1st and 14th Ameridments to the Constitution

of the United States and Article 20, Part First, of the

Arizona Constitution, A.R.S.

(A). Whether the trial court erred and abused its oa

in the amount of attorney’s fees awarded to the respond-

ent-mother, |

The facts necessary for a determination of this matter are sub-

stantially as follows: On 12 December 1958, the 17 year mar-

riage of Chyrl and James Ovens was ended by divorce. Pursuant

to the decree of divorce, the plaintiff and mother, Chyrl Ovens,.

was given custody of the 10 children with the exception of Michael

Ovens, then 16 years old, who was granted permission to live with

his father. The defendant and father was ordered to contribute

$100.00 per month for the suport of each child living with the

mother. — )

_On the day her divorce was final, the plaintiff was married in

_ Mexico to one Andre Gerber. Shit Yoser divorced Gerber and

married R. J. Allison, her present husband, The defendant has |

also remarried.

Q 4

—

A-14 :

* 1959, defendant oo Sr for change of custody which

was denied. The court in that hearing noted that: »

“The rancor between the parties themselves has been: the prin-

_ Gipal ‘factor in the difficulties that have arisen.”

; Again, in 1963, defendant, petitioned for a. ne of custody of

"the three children, and’this time he was awarded custody ¢ of three

of the children who had previously elected to live with him.

In 1965, defetidant again petitioned fora change’ of custody,

and the determination of that matter in-the Maricopa. County

‘ Superior Court gives rise to this / appeal. By emancipation, court

_action, and by the expressed desires’ of the children themselves,

the custody. of the children had been changed since. the original

decree such that at the time of the hearing; two were married and

“: residing outside the home; four were residing with the defendant-

+ Neg

. father; two were residing with the plaintiff-mother; and two, the “

subject of, this appeal, are neaiding * with the plaintiff =? de-

termination of the matter. . .

* Trial was held i in Maricopa County Superior Court i in June and

3 August’ ‘of 1965, and the court, on 13 September 1965, awarded

“the care, Custody and control of the three minor children to the

father, The judgment contained ‘the following provisions:

_ “It is further ordered, adjudged and decreed that alee any

"appeal that may be filed that the care, custody and control of

the minor children Tetrance,. James Brian and Kevin be

awarded’ to the defendant father in furtherance of any appeal

- that might be taken herein in order to, guard the health, safety

“and ‘welfare: of the heretofore mentioned children until final

determination may be made.”

The mother immediately ‘filed a ‘notice~ of appeal ond after

several motions and writs, the trial court set a supersedeas bond in

the amount of $50,000.00. The mother petitioned this Court for

a writ ‘of certiorari asking that we order the trial court to allow

the mother.to post a lesser bond and stay the order changing cus-

. tody penning appeal. We denied the petition and the mother ake -

A-t5

a writ of certiorari with the Arizona Supreme Court and they, in

the case of Allison v. Chatwin, 99 Ariz. 99, 407 P. 2d 69 ( om)

reduced the bond to $4,000.00 and stated: —

{1} “It is not within the power of the lower court to. award.

custody of children temporarily pending appeal.” 99 Ariz. pages

102, 103, 407 P.2d page: 71.

And:

“When an appeal i is filed in a-case in which custody of children

- is changed by the lower court, it is the duty of the court upon —

application to fix a supersedeas bond, the purpose of which is

to preserve the status quo of the case pending appeal.” Allison

v. Chatwin, supra, 99 Ariz. page 102, 407 P.2d page 71.

_ This decision (Allison v. Chatwin, supra) of the Supreme Court

_ of Arizona was in accord with previous decisions of that Court

commencing with Gotthelf v. Fickett, 37 Ariz. 322, 294 P, 837

(1930), in which: it has been held that posting of a supersedeas

bond stays execution pending appeal of a judgment ordering

change of custody of children. This Court has no quarrel with -

this rule of law as it applies to a change of custody in which the

trial court has not found the home from which the children are

being removed is detrimental to the health and welfare of the

said children. In such a-situation, no great damage is likely to be

done to the children pending appeal. The situation is quite differ-

ent, however, when, as in this case, the trial court has found that

in order to “guard the health, safety, and welfare” of the children,

the children should be removed from a detrimental environment.

Under these circumstances, this Court would question the wisdom

in allowing the children to remain in the potentially damaging

environment pending appeal by the posting of’a supersedeas bond

and.we are also unable to say that a bond in any amount will

suffice to repair the damage that may be done to children kept in

the atmosphere described in this case for the period of time it.

takes to consider a matter on appeal, even though the matter may

be accelerated on our calendar as was done here.

~

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Se ey Ne? "

A-16

The $4,000.00 bond was posted and the two children in ques-

tion have remained with the mother pending determination ‘of

this matter on appeal.

CONSIDERATION BY THE TRIAL JUDGE OF EVIDENCE

UPON WHICH A PRIOR as epee a OF CUSTODY

HAD BEEN MADE

The appellant contends that the trial court could not consider “

‘testimony which had been introduced in a previous custody hear- .

ing. Appellant contends that in considering the question of

whether there has been a change of circumstances the doctrine of ©

res judicata must be applied. Appellant cites the following:

“The change of circumstances rule as a limitation on modifica-: ,

tion of a divorce decree is one aspect of the principle of res

_ judicata (citations). The court, ‘in issuing the original decree,

found that the arrangement, therein set out was for the best

interests of the child. No appeal having been taken, this deci-

sion became final, upon the facts then before. the court, and no

alteration will be made without a showing that the factual situ-

ation has changed to such an extent that the. original decree

can no longer reasonably be expected ‘to serve the purpose.”

‘Ward v. Ward, 88 Ariz. 132, 134, 135, 353. P.2d 895,. 898

(1960). |

{2} The rule set forth in Ward v. Ward op cit, and other

cases that the courts will not consider a change in custody with- ,

out showing a sufficient change in circumstances is sound in that

generally the best interests of the minor children are served by

keeping them in the same environment and surroundings during

their childhood, ahd the courts should not change the custody of

the children with each slight change of circumstances.

{3] But the fact the prior. determination of custody by the

court is res judicata as to the circumstances considered ‘by the

court at that. previous time does not, mean that evidence intro-

duced at the prior hearing is necessarily inadmissible at subsequent

hearings. Indeed, some matters will have to be shown the court

A-17

in order that it may determine if there is in fact a change of condi-

tions since the prior hearings.

{4} In the instant case, the court admitted evidence establish-’

ing that both Gerber (plaintiff's second husband) and Mr. Allison

(her present husband) possessed criminal records, in order to

show what defendant's attorney called, “the propensity of the

witness (plaintiff) for men of Mr. Gerber’s class.” The trial court

in its findings stated:

“The plaintift-respondent since her divorce rw the defendant

has developed a pattern characterized by jassociating with and

did marry two men with criminal records and the presence of ~

the present stepfather is not conducive to developing minors

into good citizens and is detrimental to their individual welfare.”

The trier of fact was being asked to and did draw an inference

from the fact that she. associated with people who had-a criminal

record and that she married two such men. .We think it was

within the broad discretion of the trial court to admit such evi-

dence in determining wat would be most beneficial for the

children.

REFUSAL OF THE TRIAL COURT TO RELAX

THE “RULE” EXCLUDING WITNESSES

‘At the commencement of the proceeding, the attorney for

plaintiff asked that the “rule” be.invoked requiring that those

“who would be witnesses remain outside the courtroom until called

and not disclose or discuss their testimony with anyone except

counsel. _ |

A private investigator, George Brooks, was called by the defend-

ant and testified that on two occasions he saw one of the Ovens

girls in the company of her stepfather Allison in what he. de- /

scribed as dating situations. On rebuttal, and to the alleged sur-

prise of plaintiff's counsel, a second ‘investigator testified that he

and Brooks on one occasion had gone to the Adams Hotel in an

attempt to serve a subpoena. Under circumstances that are not

at ales

A-18

quite clear, they discovered Mr. Allison and his stepdaughter in’the —

" alleyway near the Adams. The investigator testified to have seen

the following in the light of his pocket flash: | Res

“Mr. Allison’s back was partly turned to me. The girl * * *

was more or less cradled up close to him. She had her head

down on his shoulder and in the*crevice of his neck. He had

his right arm over her shoulder and cupped over her right

breast.”

After each of these witnesses, counsel for the plaintiff requested —

leave to call the two Ovens girls to the stand. The POW col-

_ loquy then took place:~ -

“Court: * * * These girls are not the subject of a custody pro-

ceeding. The court does not feel and the record may show that

there is evidence that there. has been discussion among and —

between the witnesses with one side of this controversy and for

that reason the court indicated to counsel that if their testimony

is offered the court. would likely sustain ‘an objection to it be-

\eause of the imposition of the rule. * * *

“I doubt that the court would be oes one way or another in

- talking to these girls in chambers.

“Counsel: * * *¢I think she * * * should ene to take

the stand and deny things said in régard to her relationship

with her stepfather. .

“Court: I would have to insist that counsel could have reason-

ably anticipated that, and in the preparation of his case would

make the proper preparation for this in connection with the ~

rule of exclusion.”

No offer of proof appears in the record concerning the Ovens’

girl’s testimony beyond the statement of. counsel that she intended .

to controvert the testimony of the private detective. Mr. Allison

was subpoenaed by the defendant, but failed to appear, and counsel

for the plaintiff-mother claimed the marital privilege concerning

his possible testimony.

Our Supreme Court has recently discussed the “rule” relating

to the sequestration of witnesses in criminal cases as follows:

Ae ee ey

, a

“Arizona has no statutory provision or criminal procedure rule

relating to the sequestration of witnesses during.a trial, but

this common law practice was followed in our courts before

Arizona became:a state. Territory of Arizona v. Dooley, 3 Ariz.

60, 78 P. 138 (1889). The purpose of excluding witnesses

from the trial is to encourage the co | of truth, and detec-

tion and exposure of falsehood. Staté v. Thoma§, 78 Ariz. 52,

275 P.2d 408 (1954). As we have previously said, exclusion

of witnesses from the courtroom and administration of the ex- _

clusionary rule is within the sound discretion of the trial judge

and this court will ‘not disturb the fuling of the. trial court un-

less there is shown an abuse of discretion and resulting preju-

dice therefrom. State v. Romero, 85 Ariz. 263, 336 P.2d 366

(1959).” State v. Sowards; 99 Ariz. 22, 26,-406 P.2d 202, .

204 (1965).

{5] “We believe the same rule applies to civil cases and the .

trial court may, upon request of oné of the parties or his own mo-

tion, invoke the “rule” excluding witnesses from the courtroom

during trial. |

[6,°7] Sequestration of witnesses lies within the sound dis-

» cretion of the trial judge. Jones, Evidence, (Sth Ed.), § 889, page

1664, Wigmore, Sequestration of Witnesses, 14 Harvard Law

Review 475, Wigmore, Evidence .(3rd Ed.), § 1839, page 337.

See Annotation, 85 A.L:R.2d 478. In the instant case, the plain- —

- ° tiff had invoked the rule and had failed to anticipate that they

might be called as witnesses which could reasonably be expected

in a matter of the kind before the court. The two girls had heard:

‘enough testimony to be influenced thereby and the court did not

. err in excluding their testimony. Gwaltney v. Mortis, 237 Md.

173, 2 A.2d 266 (1964).

CONSIDERATION OF RELIGION

The plaintiff next contends that the trial court based ‘its judg-

on the religious activities of the parties and that this is con-

trary tothe 1st and 14th Amendments to the Constitution of the

g%

a ol

A-20

¢

sited States and Article 20, Part First of the Arizona Conistitu-

tion which reads as follows: ; P

“First. Perfect toleration of religious sentiment shall be se-

cured to every inhabitant of this State,*and no inhabitant of.

this State shall ever be molested in person or property on ac-,

count of his or her mode of ai worship, or lack of the

same.

The trial court in its finding of fact died

“b) The environment of the Ovens home is conducive to a

wholesome life for the minor children; they are-helped with

their school work, taken to church’ each Sunday and reside in

the home and neighborhood in which they were originally

reared and in wholesome surroundings.

* * * ad * *

“e) The present homie life of said minors, above named, is not

conducive toa well-balanced life in that excessive drinking is

indulged in in said home; the children are not taken to church

on Sunday; obscene language is used in their presence, and there

is a definite lack of proper parental guidance.

* * * * * *

“h) That Plaintiff-Respondent has failed and refused to comply

with the order of this Court, dated June 11,1959, which re-

quired Plaintiff to maintain the minor children in parochial

elementary and secondary schools.

“i) The Ovens children living with Defendant are adequately

clothed and well groomed as contrasted to’the Ovens children

living with the Allison family, who“when visiting in the Ovens

home have to be furnished ample and clean clothing so they

can attend church and likewise when taking trips with the

-- Ovens children who reside with the Defendant.”

{8} Plaintiff cites the. Arizona Supreme Court case of Smith .

~ v. Smith, 90 Ariz. 190, 367 P.2d 230 (1961) to support his con-

tention that “neither religion, the lack of religion, nora person’s

creed can be constitutionally taken into consideration in a child

' custody action.” We do not read the Smith case to be this in-

clusive. In the Smith case, the trial court had stated its opinion

A-21

that the mother’s religious beliefs made her unfit to have the

_care and custody of the child. Our Supreme Court stated:

“Patently, the determination of fitness was. predicated on ap-

pellant’s religious beliefs, for in the end the court put appellant

to the compulsion of foregoing her beliefs or suffering the loss

of her child.” Smith v. Smith, Arad 90 Ariz. page 193, 367

P.2d page 233.

This does not prevent the court, in a child custody matter, from

taking into consideration the church and Sunday school habits of

the-children and their respective parents, and the opportunity

given to the minor children to attend church when they desire.

These matters may well indicate the concern which one of the

parents may have regarding the moral climate in which the chil-

dren are being reared. We do not believe that the 1st and 14th

Amendments to the United States Constitution and Article 20,

Part First of the Arizona Constitution make church attendance a __.

. judicial secret in a child custody case.

Even assuming arguendo that the question concerning the

parochial.school and church attendance of the minor children

may not be considered, the examination of the record indicates

that at most, this is a peripheral issue.

The evidence before the court showed that a psychiatrist who

examined the plaintiff pursuant to Rule 35(a) of the Rules of

. Civil Procedure, 16 A.R.S., stipulated to by the parties, described

Mrs. Allison as‘an emotionally unstable personality. The Allison

home was described as “pretty messy”; the youngest boy, it was

noted, at the age of eight had an extensive vocabulary of four-

letter words; the present step-father was seen on two occasions

~ with one of the daughters in questionable situations. There was

also evidence adduced from which the court found that “excessive

_ drinking was indulged in in said home”, to wit, a next door neigh-

' bor testified to seeing Mrs. Allison on the hood of her car. in a

nightgown screaming “noises”, she fell off and “was assisted up

by her two daughters. A gas station attendant testified that Mrs.

z PEO IY OR OTT "

Dini el cates Be ete ne

A-22

* Allison had. come into the service station where he worked in

various states of drunkeness and on one occasion: ..

“I was coming back around to seal the gas tank off and put the

nozzle on, she hollered at me * * * ‘Hey, you fat son-of-a-

bitch, can’t you do a better job than that on the windshield?’ ”

In addition, there is the trial court’s in-chambers conference with

the children themselves. Their testimony is not a matter of record,

but there is strong indication that the results of this conference

bore heavily on the disposition of the matter.

The trial court stated:

“I am aware of this boy Kevin. I talked to him quite at Lendl

"and my order provides that Kevin is to have a complete psy-

_chiatric and psychological evaluation and he was made a ward

‘of this court because I was concerned.” ‘

As we have recently stated:

“In chambers conferences between the trial judge and the

children of the litigants have been an important part of many

domestic relations trials. * * .* ;

“Frequently these conferences are conducted with a promise

by the trial judge that the information is confidential, that the

child need not repeat what has been said and the judge will

not repeat “what has been‘said. It is vital that this confidence be ©

observed.

“In this, one of the most ‘difficult responsibilities of a trial

"judge, the judge is privileged to consider the information so

secured in his final decision. The information given to the trial

judge during the in chambers conference may well be the cru-

- cial and ‘determining factor in the court’s decision. We do not

say that if the record is overwhelming in favor one one decision

that the in chambers conference alone will be sufficient to ‘sus-

tain a contrary finding for that problem is not before us. In

this case, the reported evidence sustains the decision and we

must assume that the decision is fortified and strengthened by

the in chambers conference.” Bailey v. Bailey, ’ Ariz.App. 138,

142, 412 P.2d 480, 484 (1966).

{9} The evidence was more than sufficient om which the

A-2 3 : ‘

trial court, disregarding any evidence of religious attitudes on

church attendance, could find that the best interests of the children

dictated a change in custody.

{10} The appellant further contends that the trust established _

by the parties at the time of the divorce which provides that the

children shall attend a Catholic college also violates the 1st and

14th Amendments of the United States Constitution and the Con-

stitution of the State of Arizona.

The trial judge found the defendant failed to provide for sup-

port payments for the college-age girls at $100. 00 during the

summer months, but also found:

“This court further finds that it would not be equitable for de-

_fendant Ovens to be required to furnish college support money

twice for the children. That the trust’provides for support,

maintenance and educational funds for the benefit of the chil-

dren of the parties as is set forth in paragraph 10 of the original

decree entered in this cause December 12, 1958 * * * That

the children of the parties, > and , may choose

their own college but in doing so, they or the plaintiff will be

required to make the financial arrangements. That this court

should not require the defendant to provide funds for any

other school, not covered under the trust agreement.”

Were this matter before the Court in action to set aside the trust

agreement, the religious i issue might be directly before us. We do

not believe that it is before the Court at this time under these

facts. In the first place, we are concerned only with the change of

custody of the two boys. In the second place, we are not here to

determine the obligation of the father to provide a college edu-

cation for the two girls in question. Any error there may be in

that matter is for another determination and we specifically re-

frain from making any determination concerning the validity of

* the religious provision contained in such trust.

ATTORNEY'S FEES

{11, 12] The appellant next contends that the trial court

OF RT OP a Re MY £2 ee do ee

*

A-24 °

abused its discretion in awarding the amount of $250.00 as and

for the plaintiff's attorney. The question is not that this Court

_would, if called upon, award a different amount which on its face

would appear to be inadequate to completely cover Mrs. Allison’s

total fees in the matter. The law does not require that Dr. Ovens

pay for all of Mrs. Allison’s fees, but a reasonable amount, and

while we may not agree as to the amount awarded, we do not

find that the amount awarded was unreasonable under the cir- ©

cumstances. - |

Judgment of the court below is affirmed.

_ STEVENS, C. J., and DONOFRIO, J., concur.

hai x Geren kt ee

* A-25

APPENDIX D

IN THE SUPREME COURT OF

THE STATE OF ARIZONA

‘

CHYRL MERTH (OVENS) ALLISON, | : ,

Appellant, - No. 8941-PR

(Supreme Court) |

vs | No. 1CA CIV-310

. : (Court of Appeals

JAMES M. OVENS, JR., ORDER

Appellee.

IT IS ORDERED, The Petition for Review filed in the Court

of Appeals, Division No. 1, and filed in the Supreme Court of

the State of Arizofia on February 10, 1967, in the above-entitled

cause = GRANTED.

Chife Justice Bernstein and Justice Struckmeyer having an-

nounced their disqualification, Judge John P. Collins, Tucson,

Arizona and Judge Lloyd C. Helm, Bisbee, Arizona, have been

assigned to serve in their stead i in the determination of this cause.

| DATED at Phoenix, Arizona, this 29th day of March, 1967.

Ernest W. McFarland

- Vice Chief Justice

A-26

APPENDIX E

433 P2d 968

Ariz.

» IN THE SUPREME COURT OF

_ THE STATE OF ARIZONA *

In Banc

CHYRL MERTH (OVENS) ALLISON,

my 7 Appellant, “ae

No. 8941-PR _

(Filed Nov. 22, -

ee ‘1967).

JAMES M. OVENS, JR., mY

eee Appellee. }

ted Appeal from the Superior Court of Maricopa County

Honorable Kenneth C. Chatwin, Judge

AFFIRMED IN PART, REVERSED IN PART

Opinion of the Court of poem Div. One, -

4 Ariz.App. 496, 421 P.24¢ 929 —

VACATED AS TO TEMPORARY CUSTODY ~

John J. Dickinson - Phoenix

7 _ Attorney for Appellant

Charles M. Brewer : | Phoenix

Jerry H. Glenn mas Phoenix

Attorneys for Appellee

A-27

Collins, Judge, Superior Court: |

This matter is before us by a petition to review the decision —

of the Court of Appeals reported in 4 Ariz.App. 496, 421 ‘P. 2d

929. We granted the petition for the limited purpose of review-

ing the jurisdiction of the trial court to make temporary custody

awards of children pending appeal.

‘The: trial court entered judgment modifying a previous decree

of divorce’ relating to the custody of three minor children. .The

three children were awarded to the father; Dr. James M. Ovens,

Jr. ‘and the mother, Chyrl Berth (Ovens) Allison, appealed as

o

to the change of custody relating to two only of the three children.

This case was before us previously (Allison. v. Chatwin, 99

Ariz. 99, 407 P.2d 69). pending:the appeal thereof in the Court

- .of Appeals. There, the mother of said children sought a review

_ Of the decision of the trial court, wherein. it fixed a supersedeas

bond in the dmount of’ $50,000, which amount was by this

‘court held to be ufireasonable and reduced p $4,000.

The trial court, anticipating the appellant might appeal the .

decision changing: custody of the three children, held:

“IT IS FURTHER ORDERED, ADJUDGED AND DE-

' CREED that pending any appeal that may be filed, that the

care, custody and control of the minor children, Terrance,

James Brian, and Kevin, be awarded to the defendant father,

in furtherance of any appeal that might be taken herefrom, in

order to guard the health, safety and welfare of the heretofore”

mentioned children, until a final determination may be made.”

This holding of thé court is contrary to the previous decisions of

_ this court. :

Apparently the trial court misinterpreted our previous de- |

cisions on this subject, as was suggested by petitioner in the

request for review. We were of the opinion. that this court had

made the rules clear in regard to custody of children on appeal,

commencing with Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837, .

ba tls

| hie

- A-28

on rehearing 37 Ariz. 413, 294 P. 837, and the most recent of

which was, of course, Allison v. Chatwin, supra.

Appropos the situation in granting this review was the follow- |

ing statement made on rehearing of the Gotthelf case, supra: |

. Ordinarily we do not write opinions on such motions

or rebearing }, but, since respondent has suggested our original

opinion is in some points confusing to the bar of the state on

an important point of practice, we depart from our usual

. custom.” {Emphasis supplied.] 37 Ariz. at 414, 294 P. at 840

In our recent decision on Hackin v. Superior Court, Ariz.

, 425 P:2d. 420, we had an opportunity to review. Allison

v. Chatwin, supfa,. and stated there in this regard as follows:

“Ty Allison v. Chatwin, 99 Ariz. 99, 103, 407 P.2d 69, this

’ Court made clear its view-of both the purpose of a supersedeas

bond and a lower court’s duty with regard thereto:

_ “The purpose of the supersedeas bond is to afford the party

appealing from a lower court order to stay any further

\ proceedings in’ the cause being appealed until such time

. as the appeal has been ruled upon by the reviewing court.

Therefore, the lower court, upon notice of appeal, should

determine as quickly as possible the amount of the super-

sedeas bond, stay execution for a reasonable time to permit

the party appealing to post the bond, and thereby stay and

preserve the status quo. Otherwise the effect might be to

‘>render nugatory the — of the supersedeas bond.’ (em-

phasis added) . ..-Ariz. at .........425 P.2d at 421

Since, unlike Heckin, supra, the instant case does involve the

_ custody of children, it would be appropriate to set out here the

balance of the paragraph appearing in Allison v. Chatwin, supra,

which was omitted in the Hackin opinion. It is as: follows:

... Any other procedure would mean that the whole living

conditions and routing of the children would be disturbed

by such a transfer in the event the court reversed the lower

court’s ruling in regard to the custody of the children. ” 99

‘Ariz. at 103, 407 P.2d at 71

It seems patently clear to us that insofar as supersedeas is con-

.

A-29

~ cerned, there is no reason for a distinction between two appeals,

the one involving an ordinary. change of custody of minor chiltren

\(Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907), and”

the other case involving a civil appeal not involving change of

_ custody (Hackin v. Superior Court, supra).

The precise question relating to supersedeas, which is presented

to‘us on this review, is whether there is a logical reason ‘for -a

distinction between, two appeals, the one involving an ordinary

change of custody of 3 minor children (Bailey v. Superior Court,

supra), and the other case being an appeal - involving specific

findings and order of the trial court relating to the necessity of

a temporary chanpe of custody, pending any appeal, in order to

safeguard the safety, welfare, and care of the minor children

(Allison ° v. Chatwin, supra).

Thus, in the instant case, the trial judge made express findings

and an order relating to such temporary custody pending appeal.

This court took note of such findings and order in our * opinion in

Allison v. Chatwin, supra, as follows:

““That it is absolutely essential, in order to — the. safety,

_welfare’and care of the minor children, TERRENCE, JAMES

BRYAN, and KEVIN, in the event of an appeal, that they

be temporarily awarded to the custody of the defendant father

herein, pending said appeal, and in furtherance thereof, until -

the Saal determination be made.’” 99 Ariz. at 102, 407 P.2d

at 71

Notwithstanding the aforesaid aici findings by me trial

court, in Allison v. Chatwin, supra, we stated:

“It is not within the power of the lower court to award custody

of children temporarily pending appeal. This court has held

that in the filing of a supersedeas bond, the case shall merely

be held in status quo, and the bond shall have no retroactive

effect so as to undo or invalidate any act already done.. In

Application of Lavis, 96 Ariz. 316, 394°P2d 655; Gotthelf v.

Fickett, 37 Ariz. 322, 294 P. 837, on rehearing, id Ariz. at.

102, 407 P.2d at 71

re |

_ A-:30

If the rule were otherwise in the instant case, it would neces-

sarily mean that the trial. court, by its own act, could enlarge its

. jurisdiction into a field where it has no jurisdiction, except to do

acts in furtherance’ of the appeal. This was never contemplated

by the legislature, nor by this court.

~ In Gotthelf v. Fickett, supra, this court reaffirmed its prior

holdings that: . bite ?

“When the Supreme Court has taken jurisdiction of a case

on an appeal no inferior tribunal has any jurisdiction thereof,

except to perform the necessary acts in furtherance of the

appeal.’” 37 Ariz. at 416, 294 P. at 840 é

See also Sam v. State, 33. Ariz. 421, 265 P. 622, and Navajo

Realty Co. v. County National Bank & ba Co., 31 Ariz. 128,

250 P. 885.

After reiterating the ae ep rule in Gotthelf, : supra, this

court reasoned logically that there is a distinct difference in the

jurisdiction of a trial court relating to “acts in furthegance of an -

. appeal” in an appeal not involving a supersedeas bond, as opposed

- to an appeal such as hére, where, but for the posting of a super-

sedeas bond, the two cases might otherwise be the same. In arriv-

ing at this distinction this court held (in Goetatt v. Fickett,

supra) :

“We are of the opinion that the minor children of the parties

to a divorce proceeding are in a situation somewhat analogous

to that-of specific property awaiting the disposition of the

‘court. It is the child itself, and not-a substitute therefor, which

is involved in the decree of the court. It is absolutely essen-

- tial, in order ‘that justice be done, that the child be properly _,

cared for till its custody be finally determined. Fort this reason -

- any order made by the superior court pending an appeal, and

involving simply the temporary custody: of the child, is one in

furtherance of the appeal, and not in any way prejudicial to

the jurisdiction of this court.

“Suppose, for example, it should appear that the health of the

child involved in this case was suffering by its remaining in

L,

ye on

Tucson during the pendency of the appeal. Would it be said

that it was not in furtherance of the appeal that it be taken

from the orphanage where it now is and placed temporarily

where its health would be preserved? The question itself indi-

cates the only possible ‘answer. Such order, of éourse, would -

be merely a temporary one for the care and safety of the child.

The trial court is obviously in a better position than this court

to. determine what the immediate needs of the child are, and,

when ‘the ordinary- appeal bond is given, we think it still

retains jurisdiction to make orders guarding the health and .~

safety of the child until a final determination of the appeal —

by.this court, and that such action is ‘in’ furtherance of the |

appeal. | fae eee

“When, however, a supersedeas bond is given, in many juris-

. dictions, among which we have held Arizona to be, this by

statute destroys the right of the court to make any further.

' order whatever in the proceedings superseded, and in such a

case the child must be guarded either; as we have indicated,

. through juvenile proceedings, or by application to this court

for some proper order. Vosburg v. Vosburg, 137 Cal. 493,. 70

Pac. 473; Ex parte ‘Dupes, 31 Cal.App. 698, 161 Pac. 276;

Casebolt v. Casebolt, 170 Ky. 88, 185 SW 510.” {Emphasis *

supplied.} 37 Ariz. at 416, 294 P. at 841 eit

That the facts of the instant case are squarely within-Gotthelf,

supra, there can be no doubt. Therefore, for a change to be made

in the custqdy. of the children pending: appeals it would’ have to

be through juvenile proceedings or by application to this court for.

some proper order: This is the proceduré this court ‘has held to

be proper.and in the best interests of children during appeal.

The view of this court on the purpose and effect of supersedeas,

as set out above, has heen the law of this state since Gotthelf,

supra, and as such was and is controlling in ‘all stages of pro-

ceedings of the instant case. Furthermore, this court having

previously had this case before it on certiorari pending the appeal

of the case in the Court of Appeals, our. decision there became,

in addition, the express law of the case. This being so, that

qe

wey

opinion of this court , should have been followed i in all pliable

, fespects in said appeal proceedings. -

That part of the Court of Appeals decision in nied to “

| order for temporary custody is vacated. ‘We hold the lower court _

“was without jurisdiction to order. , temporary custody of the

children pending appeal. In all other respects the epamer of

- the lower court is affirmed. ;

. John P. Collins, Judge, Superior Court

CONCURRING:

Ernest W. McFarland, Vice Chief ‘sia /

Jesse A. Udall, Justice a

Lorna E. Lockwood, Justice

‘Lloyd C. Helm, Judge, Superior Court

Sen te et ee ae ee el ee - “a eee

ar A-33

IN THE .

‘SUPREME COURT OF THE

_* STATE OF ARIZONA

CHYRL MERTH (OVENS) ALLISON, .

Appellant, No. 8941-PR

; FILED -

Nov. 27, 1967

| Clerk

JAMES M. OVENS, JR., _ Supreme Court

. | Appellee.

PETITION FOR: REHEARING: OR, IN THE ALTERNA. |

TIVE, NOTICE OF INTENTION TO PETITION THE

“UNITED STATES SUPREME COURT FOR A WRIT OF

CERTIORARI; PETITION FOR A STAY OF THE MAN-

DATE PENDING REVIEW BY THE UNITED STATES

SUPREME COURT; OR, PETITION FOR A TEMPORARY

STAY OF THE MANDATE PENDING A PETITION ‘TO

THE UNITED. STATES SUPREME COURT FOR A STAY .

OF THE MANDATE PENDING REVIEW BY THE

UNITED STATES SUPREME COURT |

(ORAL ARGUMENT REQUESTED)

COMES NOW Appellant, by and through’ her undersigned ;

attorney, and petitions this honorable court as follows:

PETITION FOR REHEARING

‘Pursuant to Rule 9, Rules of the Supreme Court, appellant

petitions this honorable court for a rehearing of the decision in

the nen cause for. the reason that in its decision this

A34 i

honorable court has ignored the errors committed by trial court

-* and by the Court of Appeals, Division One, in the Court of

Appeals decision in this case, 4 Ariz. App. 496, 421 P. 2d 929, -

in the.following respects:

‘The Court of Appeals, Division One, in its decision, held,

contrary to the First and fourteenth Amendments to the United

. States Constitution, that a trial court may take into consideration

the church and Sunday-school habits and the failure of a parent

+ to send children to Catholic schools in determining the fitness

, of that parent to have custody of minor children.

_ The holding of the coutt below flies in the face of the holding

of this court in Smith v. Smith, 90 Ariz. 190, 367 P. 2d 230,

which held such consideration to be a violation. of. the First and

Fourteenth Amendments to the United States Constitution, and

Article 20, Part First, of the Arizona. Constitution. This court, in

its ‘decision, has failed even.to discuss this point, has affirmed the

trial court’s judgment and has approved the-Court of Appeals de-

cision, and has ignored or overlooked the following cases cited by

appellant, all of which are directly contrary to the court’s holding:

- Engle v. Vitale, 370 US. 421; Hacket v. Hacket, (1958 Ohio

App.), 150 ‘NE 2d 431, appeal dismissed 168 Ohio St. 373, 154 |

NE 2d 820, cited with approval in Abington School District v.

Schemp, 374 US. 203; Wood v. Wood, 39 D. Ch. 523, 168 A.

2d 105; McLaughlin v. McLaughlin, ‘20 Conn. Sup. 278, 138 »

A. 2d 420; Stanton v. Stanton, 213 Ga. 545, 100 SE 2d 289.

‘In its decision, this court has failed to discuss and has approved .

the trial court’s judgment as to the issue of support for the

college-age children and has’ thus allowed the Court of Appeals

to sweep the constitutional question involved under the rug. The -

question. involved was whether the trial judge could alter the -

. e§S

support decree for the college-age children so that the father

would ‘not have to support them during the school year because

of a trust fund which required them to go to Catholic colleges.

In other words, if the college-age children refused to go- to

~ « Catholic « ‘colleges, their support money would be cut off—go |

to a Catholic college, or go without support. To compel a child

whom one is legally ordered to support to go without support

is a violation of both the United States and the Arizona Consti-.

tutions. Hacket v. Hacket, supra, trial court opinion, Ohio ‘Court

of Common Pleas, 141 NE 2d 477, affirmed 150 NE 2d 431:

For, the foregoing reasons, appellant tespectfully petitions this

court for a rehearing in the above-styled cause.

I. ' nied

NOTICE OF INTENTION TO. PETITION THE UNITED

STATES SUPREME COURT FOR A ce

WRIT OF CERTIORARI

‘In the event this honorable court should deny the petition for

. rehearing filed herewith, appellant files this notice. of her inten- ©

tion to petition the United States Supreme Court for-a writ of

certiorari on the above-styled cause. The grounds on which this

petition for a writ of certiorari will be based are thatthis honor-

able court, by affirming the trial court’s judgment and approving

the' decision of the Court of Appeals, has acted in-violation of

the First and Fourteenth Amendments to the United States Con-

stitution in that:

' A,

The action of the trial court in basing i its order changing the

" custody of minor children on the religious habits and preferences

_ Of the respective parents and on the failure of appellant to send

‘the children to Catholic schools violates the First Amendment

to the United States Constitution as applied to the states ‘through

" A-36

the Fourteenth Amendment to the United States Constitution,

"in that it 7 appellant of er poe freedom of

phe.

B.

The action iad the trial court in ordering that there sib be

no support for the college-age ¢ children of the parties during the

school year unless. they attended Catholic schools violates the

First Amendment to the United States Constitution as applied

to the states through the Fourteenth Amendment to the United ;

States Constitution, in that it deprives appellant of her guaranteed.

freedom of religion. In addition, this order violates the “estab-

lishment” ‘clause of the United States Constitution in that a

“civi! magistrate” has undertaken to enter an order which forces

the college-age children of the parties to attend a college of a

_ particular faith. : zs

. W. . .

PETITION FOR A STAY OF THE MANDATE

PENDING REVIEW IN THE UNITED STATES

SUPREME COURT

&.

In the event this honorable court should deny. the ili for

rehearing filed herewith, appellant petitions this honorable. court

' for an order staying the mandate in the above-styled cause to

‘allow appellant time-to prepare and file a petition for certiorari ‘

in the United States Supreme Court, and for that Court to dispose

of said petition, in accordance with the Rulessof that Court. The

petition for certiorari would be based on the points set forth in

the notice of intention to petition the, United States Supreme

Court for agwrit of certiorari as set forth i in Paragraph III above.

Appellant would remind this honorable court that a- $4,000

supercedeas bond is still filed in this case and would still be- in

effect. , : .

et

YX ~

e. -

eS C

of this case by the United States Supreme Court, appellant peti-

- 1967.°

_ CHARLES M. BREWEh, ESQ.

_ Attorney for Appellee

, . er ye

~

— S IV. SA ae -

PETITION FOR A TEMPORARY STAY OF THE

MANDATE PENDING A PETITION TO THE UNITED

STATES SUPREME COURT FOR A STAY. OF THE

MANDATE PENDING DECISION BY THE _

UNITED STATES SUPREME COURT,

In the’ event that this honorable court should deny the petition a

for rehéaring and should further deny the. petition for an order

staying the mandate in‘the above-styled cause pending a review on

tions thisshonorable court for a 30-day stay of the mandate to

allow. appellant to petition the United States Supreme Court for

an order staying the mandate pending the. filing and disposition

of a petition for certiorari in the United States: Supreme Court.

- DATED at Phoenix, Arizona, this 27th day of November, st

Respectfully pe

JOHN J. DICKINSON. sdf

224 Luhrs ae

Phoenix, Affzona t

mae: Attorney for Appellant > !

COPY of the foregoing served

this 27th day of November,

1967, on: :

216 Luhrs Building —

Phoenix, Arizona

A-38

APPENDIX G

SUPREME COURT

STATE OF ARIZONA

PHOENIX

CHERYL MERTH (OVENS) ALLISON,

Apyetions,

v. No. 8941-PR

JAMES M. OVENS, JR,,

. : Appellee.

The following action was taken by the Supreme Court of

_ the State of Arizona on January 9, 1968, in regard to the above-

— entitled cause:

“ORDER: - Appellant's motions for rehearing, for stay of

the mandate pending review by the U.S. Supreme

Court, and for a.tempotary stay of the mandate

pending a petition to the United States Supreme °

Court —. DENIED.” |

To—John J. Dickinson

_ 224 Luhrs Building

Phoenix, Arizona

Charies M. Brewer

216 Luhrs Building

Phoenix, Arizona _

i. +. ‘HAWKINSON, Clerk

) ‘ By Lucile Brooks

Assistant Clerk

- A-39

APPENDIX H | | 4

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

> To the Honorable the Superior Court of the ine of Arizona

in and for ‘the County of Maricopa. / C

Filed Jan. 12, 1968 by Ken Randall, Deputy.

GREETING: .

Whereas, lately i in the Sciperioc Court of the State. of Arizona

in and for the County of Maricopa, befote you in a cause between

_ CHERYL MERTH (OVENS)

GERBER ALLISON, |

Plaintiff,f ma .

: No. 51803

Vv. on Mandate

JAMES M. ‘OVENS, JR.,

o Defendant,

Cause No. 51803

said Superior Court entered its judgment on the 13th.day of

September, 1965, in favor of the defendant and against the

plaintiff,

as by the inspection of the record of the said Superior Court,

which was brought into the Court of Appeals, Division One, of

the State of Arizona by virtue of an appeal by plaintiff ................

si iasninlpnchtsindiibisenebenemiinismanzenntedeievintatans agreeably to the law in such

case made and provided fally and at large appears.

And Whereas, in November, in the year of our Lord one

thousand nine hundred and sixty-six, the said Cause came on

bis 34

*

sd ESS =

-

Ss Sheth

AAO,

to be heard before the said Court of pom Division bee and

was ; submitted for decision after argument of counsel.

On Consideration Whereof, it was on the twenty-ninth day .

of December in the year of our Lord one thousand nine hundred

and sixty-six, ordered by said Court that the judgment of the

_ said Superior Court in this cause, appealed from be, and .the

same is hereby affirmed.

‘Whereupon, on February 9, 1967, cen filed a Petition

for Review by the Supreme: Court, on consideration of which

the said Supreme Court on March 29, 1967, ordered that the

Petition for Review be granted. On consideration whereof, it

-was on the 22d day of November, 1967; ordered that part of

the Court of Appeals decision in regard to the order for tem- _

porary custody is vacated, We hold the lower court was without

jurisdiction to order temporary custody of the children pending.

appeal. In all. other respects the * judgment of the lower-court is -

affirmed..

You therefore are’ hereby aacaied that

such proceedings be had in said cause, as

-aecording to the detision and order of

this Court, and as according to rient and

nes and to law, ought to be had.

Witness, the Eonorable Ernest W. McFar- .

land, Chief Justice of the Supreme Court —

of the: State of Arizona, the tenth day of

January, in the year_of our Lord one thou-

sand nine hundred and sixty-eight.

/s/ Sylvia Hawkinson .

Clerk of the Supreme Court

of the State of Arizona