IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
KATHLEEN MARIE BALL,
Petitioner/Appellee,
v.
SHAWN A. BALL,
Respondent/Appellant.
No. 1 CA-CV 19-0787 FC
FILED 12-10-2020
Appeal from the Superior Court in Maricopa County
No. FC2017-096436
The Honorable Michael S. Mandell, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL
Osborn Maledon, P.A., Phoenix
By David D. Garner (argued)
Co-Counsel for Respondent/Appellant
Riggs, Ellsworth & Porter, PLC, Mesa
By Paul C. Riggs
Co-Counsel for Respondent/Appellant
Rose Law Group, PC, Scottsdale
By Audra E. Petrolle, Logan V. Elia (argued)
Counsel for Petitioner/Appellee
BALL v. BALL
Opinion of the Court
OPINION
Judge Paul J. McMurdie delivered the Court’s opinion, in which Judge
Maria Elena Cruz joined. Presiding Judge James B. Morse Jr. specially
concurred.
M c M U R D I E, Judge:
¶1 Shawn Allen Ball (“Father”) appeals from the superior court’s
order granting Kathleen Marie Ball’s (“Mother”) petition to enforce a
parenting plan and awarding attorney’s fees and costs. We vacate the order
in part and hold: (1) the superior court erroneously interpreted the
parenting plan’s religious-education provisions; and (2) the court violated
the First Amendment of the United States Constitution by failing to abstain
from deciding whether Father’s decision to have the parties’ children attend
The Church of Jesus Christ of Latter-day Saints complied with the parenting
plan’s provision that the children may be instructed in “the Christian faith.”
For these reasons, we remand the case for further proceedings.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Mother and Father married in November 1999 and have two
minor children. In December 2017, Mother petitioned for dissolution. The
parties represented themselves during the initial dissolution proceedings,
and the court entered a default decree (“Decree”). Filed simultaneously
with the Decree was a parenting plan, signed by both parents, that they
prepared using a court-provided form (“Parenting Plan”). The court
1 We view the facts in the light most favorable to upholding the
superior court’s ruling. See Baker v. Meyer, 237 Ariz. 112, 113, ¶ 2 (App.
2015).
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Opinion of the Court
adopted the Parenting Plan’s terms as part of the Decree. The Parenting
Plan provisions relevant to this appeal are as follows:
¶3 Approximately one year after the divorce, Father joined The
Church of Jesus Christ of Latter-day Saints (“Father’s Church”), and the
children occasionally joined him at meetings. After Mother learned the
children were accompanying Father to his church, she petitioned to enforce
the Parenting Plan, claiming Father’s Church is not Christian. Mother also
asserted other violations of the Parenting Plan.
¶4 The superior court held two hearings on the enforcement
petition. During the second hearing, Mother called a youth ministry leader
from her church to testify that Father’s Church is not Christian. After taking
the matter under advisement, the superior court held that the Parenting
Plan directs that “the Children shall only be instructed in the Christian
faith” and that Father’s Church was not “Christian” within the meaning of
the Parenting Plan. For these reasons, the court held that Father could not
take the children to Father’s Church’s services. The court also found that
Father had violated other Parenting Plan provisions and granted Mother an
award of attorney’s fees.
¶5 Father appealed, and this court stayed the superior court’s
order. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
A. The Reference to “Christian” in the Parenting Plan’s Second
Clause Did Not Abrogate Father’s Right under the First Clause to
Take the Children to a Place of Worship of Father’s Choosing.
¶6 In Arizona, joint legal decision-making arrangements must
address each parent’s “rights and responsibilities” for the child’s care and
decisions regarding education, health care, and religious training. A.R.S.
§ 25-403.02(C)(1), (2). Courts are directed to adopt a parenting plan that is
“[c]onsistent with the child’s best interests.” A.R.S. § 25-403.02(B). We
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Opinion of the Court
review the interpretation of a parenting plan de novo. Jordan v. Rea, 221 Ariz.
581, 588, ¶ 15 (App. 2009).
¶7 To interpret a parenting plan, we apply the general rules of
construction for any written instrument.2 See Cohen v. Frey, 215 Ariz. 62, 66,
¶ 11 (App. 2007) (“To interpret the decree, we apply the general rules of
construction for any written instrument.”). The court may use its contempt
power to enforce an obligation only if the responsibility is “clear, specific
and unambiguous.” Munari v. Hotham, 217 Ariz. 599, 604, ¶ 22 (App. 2008)
(quoting Ex Parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995)). For that reason,
we first determine whether the plan is ambiguous. See In re Marriage of
Johnson & Gravino, 231 Ariz. 228, 233, ¶ 16 (App. 2012). A document is
ambiguous “only when [the language] can reasonably be construed to have
more than one meaning.” In re Estate of Lamparella, 210 Ariz. 246, 250, ¶ 21
(App. 2005). “[W]hether . . . language is reasonably susceptible to more than
one interpretation . . . is a question of law for the court.” Id.
¶8 The superior court found that when the Decree was entered,
“both parties were practicing the Christian faith and agreed the Children
would be instructed only in that faith.” The court further found that
“[b]ased on the evidence provided . . . Mormonism does not fall within the
2 Father argues in his reply brief that the Parenting Plan is part of the
Decree, not a contract, and thus parol evidence of the parties’ intent is
inadmissible to interpret the Parenting Plan. See In re Marriage of Zale, 193
Ariz. 246, 249, ¶¶ 9–12 (1999) (because parol evidence rule does not apply
to judgments, it cannot be applied to dissolution decrees); LaPrade v.
LaPrade, 189 Ariz. 243, 247 (1997) (stating that “‘incorporation’ and ‘merger’
are not synonymous” and addressing the legal consequences of each with
respect to marital settlement agreements and dissolution decrees). It is not
clear the authority Father cites applies with equal force to a decree, such as
the one at issue here, which adopted a stipulated parenting plan. In any
event, the superior court retains continuing authority to enforce or modify
a parenting plan regardless of the form within which those provisions are
contained. A.R.S. § 25-317(E)–(F); see also Anderson v. Anderson, 14 Ariz.
App. 195, 198 (1971) (“Although the parties are proceeding on the
agreement which is binding on them, the agreement of the parties relating
to custody matters does not in any case bind the court.”). Because we
conclude the Parenting Plan is not ambiguous, we need not answer this
question today, and will not address it further.
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Opinion of the Court
confines of Christian faith and thus instructing the Children in a faith other
than Christianity violates the Parenting Plan.”
¶9 The superior court’s ruling is based on an incorrect
interpretation of the Parenting Plan. The first clause of the
religious-education section of the Parenting Plan unambiguously states that
“[e]ach parent may take the minor children to a church or place of worship
of his or her choice during the time that the minor children is/are in his or
her care.” This language permits Father to take the children to any “place
of worship,” be it “Christian” or “non-Christian.” Nothing in the second
clause explicitly limits or narrows this authority. The superior court erred
to the extent that it found the Parenting Plan did not permit Father to take
the children to a church or place of worship of his choice.
¶10 Mother nevertheless cites Cohen v. Frey to argue that we
should “reject a commonly understood meaning of language when the
surrounding language demonstrates the words have a particular import.”
215 Ariz. at 66, ¶ 12. Mother argues that the second clause of the
religious-education section, which states that “[b]oth parents agree that the
minor children may be instructed in the Christian faith,” modifies the first
clause such that any church Father takes the children to must be within the
Christian faith.
¶11 Mother’s reliance on Cohen is misplaced. Contrary to Mother’s
argument, the second clause’s direction that the parents “may” instruct
their children in the Christian faith does not create ambiguity about the first
clause’s meaning. The use of the word “may” generally indicates
permissive intent, while “shall” and “will” denote a mandatory provision.
See City of Chandler v. Ariz. Dep’t of Transp., 216 Ariz. 435, 438–39, ¶ 10 (App.
2007); see also Hewitt v. Helms, 459 U.S. 460, 471 (1983) (recognizing that the
word “will,” like “shall” and “must,” is “of an unmistakably mandatory
character”), overruled on other grounds by Sandin v. Conner, 515 U.S. 472
(1995). The Parenting Plan repeatedly demonstrates this distinction.
¶12 The Parenting Plan provides that the parents “will make”
major medical and educational “decisions together” and directs that
“neither parent shall do anything” to hurt the other parent’s relationship
with the minor children.” (Emphasis added.) To interpret the word “may”
in the religious-education section as mandatory rather than permissive
would render the distinction between the different words meaningless. See
Walter v. Wilkinson, 198 Ariz. 431, 432, ¶ 7 (App. 2000) (“If a statute employs
both mandatory and discretionary terms, we may infer that . . . each term
carr[ies] its ordinary meaning.”). Thus, as the second clause is
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Opinion of the Court
unambiguously permissive, it allows for instruction in the Christian faith
but does not require it. Therefore, it does not operate to limit the parent’s
rights under the first clause to take the children to any “place of worship.”
¶13 Mother’s argument that this interpretation makes the second
clause superfluous is unavailing. Adopting Mother’s assertion that the
second clause limits the parents’ rights under the first clause would render
the first meaningless because the parents could no longer take the children
to a church or place of worship of their choice. Instead, the second clause is
permissive and ensures that the “children may be instructed in the
Christian faith.” This interpretation gives effect to both clauses in the
Parenting Plan’s religious-education section. See Stine, 179 Ariz. at 388
(noting that the meaning of one part of divorce decree should not render
another part meaningless).
¶14 Mother dismisses this protection as minimal, but we do not
find an explicit guarantee that the children may be instructed in the
Christian faith to be an insignificant distinction from a separate guarantee
that a parent may take the children to any religious service of the parent’s
choosing. See Funk v. Ossman, 150 Ariz. 578, 580-82 (App. 1986) (affirming
order that child could not attend “formal Jewish religious training” but
noting no objection to the child attending Jewish services). Nor does it
render either clause meaningless to give full weight to both. See 11 Samuel
Williston & Richard A. Lord, Williston on Contracts § 32:5 (4th ed.) (“[W]ords
or clauses are not to be treated as meaningless, or to be discarded, if any
reasonable meaning can be given them consistent with the whole
contract.”) (citation omitted).
¶15 Finally, Mother argues that Father waived his argument by
failing to urge this interpretation of the Parenting Plan before the superior
court. We disagree. Although Father first suggested that the court may have
to address the definition of Christianity, he later argued that the Parenting
Plan “lets [the parents] do whatever they want to do.” Although Father
admitted that he knew Mother would have a problem if he took the children
to a non-Christian church and agreed the children should be instructed in
the Christian faith, he also argued that “being or not being a Christian” was
not relevant. He discussed the word “may” in the second clause, which he
described as the “focal point,” and claimed it was permissive, not
imperative. Thus, even if Father did not zealously press his interpretation
of the Parenting Plan before the superior court, we do not find he waived
the right to do so now. See also City of Tempe v. Fleming, 168 Ariz. 454, 456
(App. 1991) (In a civil case, whether a litigant can raise on appeal an
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Opinion of the Court
argument not made in the superior court is procedural, not jurisdictional,
and may be suspended at the appellate court’s discretion.)
¶16 We recognize that the parties’ Parenting Plan was developed
from a fill-in-the-blank form and prepared by self-represented parties.
Nevertheless, the Parenting Plan plainly states that each parent (1) may take
the children to a church or place of worship of his or her choice, and (2) may
instruct the children in the Christian faith.
¶17 We conclude the superior court erred by holding that the
Parenting Plan prevented Father from taking the children to his church.
B. The Ecclesiastical-Abstention Doctrine Barred the Superior Court
from Considering Whether Father’s Church Is Part of “the
Christian Faith” under the Parenting Plan.
¶18 Even if the second clause might constrain Father’s right under
the first clause, we would nonetheless vacate the superior court’s holding
because the court violated the First Amendment of the United States
Constitution when it ruled that Father’s Church is not Christian or part of
the Christian Faith.
¶19 At the outset, we note that the plain language of the parenting
plan—as detailed above—afforded the superior court with a means to
resolve this case without engaging with the parties’ religious dispute. “In
general, . . . we should resolve cases on non-constitutional grounds in all
cases where it is possible and prudent to do so.” State v. Korzcuch, 186 Ariz.
190, 195 (1996); see also In re U.S. Currency in the Amount of $315,900.00, 183
Ariz. 208, 211 (App. 1995) (“Courts should decide cases on
nonconstitutional grounds if possible, avoiding resolution of constitutional
issues, when other principles of law are controlling and the case can be
decided without ruling on the constitutional questions.”).
¶20 However, we conclude departing from this principle of
judicial restraint is appropriate and necessary here for three reasons. First,
the ecclesiastical-abstention issue is raised by this case’s facts and fully
briefed by the parties on appeal. Cf. Schwab v. Matley, 164 Ariz. 421, 422, n.2
(1990) (finding “[p]rinciples of judicial economy,” including the potential
for the issue to arise again, that facts “squarely presented” the problem, and
that it was “specially briefed, argued, and thoroughly explored,” justified
addressing the constitutional issue). Second, we are not faced here with a
constitutional challenge to a statute or a novel question of constitutional
interpretation, but the straightforward application of a well-settled
constitutional doctrine. See, e.g., Planned Parenthood Ariz., Inc. v. Am. Ass’n
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Opinion of the Court
of Pro-Life Obstetricians & Gynecologists, 227 Ariz. 262, 269–70, ¶ 13, n.6 (App.
2011) (declining to address “larger constitutional question” of whether
Arizona Constitution provides a right to abortion); Petolicchio v. Santa Cruz
County Fair & Rodeo Ass’n, Inc., 177 Ariz. 256, 259 (1994) (finding correct
construction of relevant statutes negated need to address the constitutional
issue).
¶21 Finally, our reluctance to address constitutional issues in this
context is significantly tempered because we are concerned with a potential
violation of the separation between religious matters and the judiciary
guaranteed by the First Amendment. “The First Amendment has erected a
wall between church and state. That wall must be kept high and
impregnable. We could not approve the slightest breach.” Everson v. Bd. of
Educ., 330 U.S. 1, 18 (1947). Failing to address the ecclesiastical-abstention
issue here could risk tacitly endorsing a foray into religious disputes the
judiciary simply has no place in resolving. That cannot be.
¶22 Accordingly, we address Father’s constitutional arguments
and conclude the superior court was required to abstain from handling
Mother’s claim once it became clear the dispute concerned an ecclesiastical
matter, namely, whether Father’s Church is part of “the Christian faith.”
¶23 The Free Exercise and Establishment Clauses of the First
Amendment of the United States Constitution, as applied to the states
through the Fourteenth Amendment, “preclude civil courts from inquiring
into ecclesiastical matters.” Ad Hoc Comm. of Parishioners of Our Lady Sun
Cath. Church, Inc. v. Reiss, 223 Ariz. 505, 510, ¶ 12 (App. 2010). The Supreme
Court first described the ecclesiastical-abstention doctrine in Watson v.
Jones, 80 U.S. 679 (1879). There, the Court set forth the bedrock principle
upon which the doctrine is based:
In this country the full and free right to entertain any religious
belief, to practice any religious principle, and to teach any
religious doctrine which does not violate the laws of morality
and property, and which does not infringe personal rights, is
conceded to all. The law knows no heresy, and is committed
to the support of no dogma, the establishment of no sect.
Id. at 728. Although Watson concerned a relatively narrow dispute, its
commitment to the judiciary’s separation from religious matters was broad.
Courts have applied the ecclesiastical-abstention doctrine in many contexts.
See Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696,
712-13 (1976); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in
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N. Am., 344 U.S. 94, 116 (1952) (“The opinion [in Watson] radiates, however,
a spirit of freedom for religious organizations, an independence from
secular control or manipulation, in short, power to decide for themselves,
free from state interference, matters of church government as well as those
of faith and doctrine.”); Bruss v. Przybylo, 895 N.E.2d 1102, 1111–23 (Ill. App.
2008) (detailing the evolution of the ecclesiastical-abstention doctrine and
collecting cases).
¶24 This court has held that “ecclesiastical matters include ‘a
matter which concerns theological controversy, church discipline,
ecclesiastical government, or the conformity of members of the church to
the standard of morals required of them.’” Reiss, 223 Ariz. at 510, ¶ 12
(quoting Watson, 80 U.S. at 733). But “[d]epending on the circumstances,
civil courts can resolve at least some church-related disputes through
neutral principles of law so long as the case is resolved without inquiry into
church doctrine or belief.” Id. at 512, ¶ 19 (emphasis added); cf. Jones v. Wolf,
443 U.S. 595, 604 (1979) (“[A] State is constitutionally entitled to adopt
neutral principles of law as a means of adjudicating a church property
dispute.”); Christakis v. Deitsch, 1 CA-CV19-0344, 2020 WL 7040634, at *1,
¶ 5 (Ariz. App., Dec. 1, 2020).
¶25 Here, the court dove into an ecclesiastical matter by
addressing whether Father’s Church is part of the Christian faith. That very
question has long been a matter of theological debate in the United States.3
A secular court must avoid ruling on such issues to prevent the appearance
that government favors one religious view over another. Cf. Emp. Div., Dep’t
of Human Res. v. Smith, 494 U.S. 872, 877 (1990) (“The government may
not . . . lend its power to one or the other side in controversies over religious
authority or dogma.”); Flynn v. Estevez, 221 So.3d 1241, 1245–53 (Fla. App.
3 See, e.g., Daniel Burke, Are Mormons Christian? It’s Complicated, The
Christian Century (Jan. 20, 2012),
https://www.christiancentury.org/article/2012-01/are-mormons-
christian-its-complicated; Michelle Boorstein, After Decades of Behind-the-
Scenes Diplomacy, Leaders of Catholic, Mormon Churches Meet in Rome, Wash.
Post (March 9, 2019),
https://www.washingtonpost.com/religion/2019/03/09/after-decades-
behind-the-scenes-diplomacy-leaders-catholic-mormon-churches-meet-
rome/; Mormons in America—Certain in Their Beliefs, Uncertain of Their Place
in Society, Pew Research Center (Jan. 12, 2012),
https://www.pewforum.org/2012/01/12/mormons-in-america-
executive-summary/.
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2017) (applying ecclesiastical-abstention doctrine to “intramural
ecclesiastical kerfuffle” over Catholic school’s religion-based immunization
policy).
¶26 Moreover, although the question was presented within the
context of interpreting the Parenting Plan, the court did not resolve it
through neutral principles of law but instead engaged in the exact type of
inquiry into church doctrine or belief that the First Amendment prohibits.
At the second evidentiary hearing, the court: (1) described the issue as
“what is or is not within the definition of Christianity”; (2) allowed Mother
to present testimony from a minister from her church claiming that Father’s
Church was not part of the Christian faith; and (3) admitted into evidence
a chart purporting to compare the tenets of Father’s Church with Christian
beliefs. The court’s order specifically found “that Mormonism does not fall
within the confines of [the] Christian faith.”
¶27 Courts are not the appropriate forum to assess whether
someone who self-identifies as “Christian” qualifies to use that term. If the
superior court’s order could stand, the “harm of such a governmental
intrusion into religious affairs would be irreparable.” McCarthy v. Fuller, 714
F.3d 971, 976 (7th Cir. 2013). “Such a judgment could cause confusion,
consternation, and dismay in religious circles.” Id. Accordingly, the
ecclesiastical-abstention doctrine applies with full force in this case, and we
vacate the superior court’s order on that basis.
¶28 In so holding, we observe that a parenting plan’s
religious-education provision may be enforced without violating First
Amendment principles if the dispute does not require a court to wade into
matters of religious debate or dogma. See A.R.S. § 25-403.02(C)(2)
(consistent with child’s best interests, a parenting plan includes “each
parent’s rights and responsibilities . . . for decisions in areas such
as . . . religious training”). But see Smith v. Smith, 90 Ariz. 190, 193 (1961)
(“[A] parent may not be deprived of the custody of a child because of the
court’s disagreement with such parent as to religious beliefs.”). Statutory
authority and caselaw also permit the court, in limited circumstances, to
make decisions concerning the religious education of a child. See, e.g., A.R.S.
§ 25-403.02(D) (empowering the court to determine disputed elements of a
parenting plan); Paul E. v. Courtney F., 246 Ariz. 388, 395, ¶ 27 (under A.R.S.
§ 25-403.02(D), “if the court awards joint legal decision-making authority,
the court is authorized to resolve any conflict”); Funk, 150 Ariz. at 581–82
(court may interfere in the religious upbringing of a child where there “is a
clear and affirmative showing that the conflicting religious beliefs affect the
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general welfare of the child”) (quoting Munoz v. Munoz, 489 P.2d 1133, 1135
(Wash. 1971)).
¶29 But parents who wish to address aspects of their children’s
religious education in a parenting plan should take great care to ensure
those provisions are as specific and detailed as possible. Failure to do so
may impermissibly entangle the court in religious matters should a dispute
ever arise. This case provides a potent example of this possibility made real.
The ambiguities surrounding the phrase “the Christian faith” thrust the
court directly into a matter of theological controversy in which it could not
take part. Accordingly, we vacate the court’s order regarding religious
education also because the First Amendment precluded the court from
addressing whether Father’s Church is part of “the Christian Faith.”
ATTORNEY’S FEES AND COSTS
¶30 The superior court ordered Father to pay $3000 of Mother’s
attorney’s fees and costs under A.R.S. § 25-414(C). Because the court erred
by concluding that Father violated the Parenting Plan’s religious-education
provisions, we vacate the fees award. But because the court found other
violations of the Parenting Plan not raised on appeal, we remand to the
superior court to reconsider the award’s amount considering this opinion.
See A.R.S. § 25-414(C) (providing that “costs and attorney fees . . . shall be
paid by the violating parent” and “may” be awarded if “the custodial
parent prevails”); Palmer v. Palmer, 217 Ariz. 67, 73, ¶ 22 (App. 2007)
(vacating and remanding fee award where “[o]ur substantive
ruling . . . may affect the factors that were considered by the family court”).
¶31 Both parties request an award of attorney’s fees on appeal. In
the exercise of our discretion, we award Father his reasonable attorney’s
fees incurred on appeal. We remand to the superior court to determine a
suitable award of Father’s fees after considering the “totality of the
litigation.” See Schwartz v. Farmers Ins. of Ariz., 166 Ariz. 33, 38 (App. 1990);
see also Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 189 (App. 1983)
(appellate court is somewhat unsuited for the fact-finding inquiry
regarding attorney’s fees). After determining both fee awards, the court
shall then offset the larger award by the smaller award.
¶32 As the prevailing party on appeal, Father is awarded his costs
upon compliance with ARCAP 21.
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CONCLUSION
¶33 We vacate the superior court’s order regarding religious
education and remand the issue of attorney’s fees. We affirm the court’s
ruling otherwise.
M O R S E, J., specially concurring:
¶34 I fully join the result and paragraphs 1-17 and 30-33 of the
Opinion. Also, as discussed in paragraph 29, I join in urging parents to
address religious-education provisions in a parenting plan with great detail
and specificity to avoid impermissibly entangling courts in ecclesiastical
matters.
¶35 While I have concerns about the manner in which the superior
court addressed the parties’ dispute in this case, I decline to join the
Opinion’s remaining paragraphs. Father acknowledged in his opening brief
that “[i]f this Court decides to enforce the plain meaning of the Parenting
Plan, then there is no reason to reach the constitutional issues.” I agree.
Because paragraphs 1-17 and 30-33 of the Opinion completely resolve this
case without addressing broader constitutional issues, I would stop there.
See R.L. Augustine Const. Co., Inc. v. Peoria Unified School Dist., 188 Ariz. 368,
370 (1997) (“We will not reach a constitutional question if a case can be fairly
decided on nonconstitutional grounds.”); Goodman v. Samaritan Health Sys.,
195 Ariz. 502, 505 ¶ 11 (App. 1999) (“It is sound judicial policy to avoid
deciding a case on constitutional grounds if there are nonconstitutional
grounds dispositive of the case.”).
AMY M. WOOD • Clerk of the Court
FILED: AA
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