IN RE: the Marriage of ANGELA and JOHN BELL. _ ANGELA BELL–KRAUS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Buddy Clark for Appellant.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Lisa R. McCall;  Law Offices of Brian K. Brandmeyer and Brian K. Brandmeyer for Respondent.

John Bell appeals from an order entered in a child custody dispute.   We affirm.

BACKGROUND

This appeal arises from a marital dissolution action between Bell and Angela Bell–Kraus.   On May 11, 2010, the trial court entered a status-only judgment of dissolution, expressly reserving other issues.   The only reserved issue relevant to this appeal is the custody of the parties' two minor children, who were born in May 2003 and June 2004.

Bell–Kraus is Jewish, and Bell is a member of the Mormon church.   They raised their children in the Jewish faith from birth.   Beginning in July 2009, however, while this matter was pending (and one month after Bell–Kraus obtained a domestic violence restraining order against Bell), Bell began to involve the children in Mormon religious education.   Bell–Kraus claims that the children have been suffering confusion and distress as a result.

In April 2009, the parties stipulated and the court ordered, pursuant to Evidence Code section 730, that Dr. Anthony Aloia would conduct a child custody evaluation.   Dr. Aloia has conducted over 900 court-ordered child custody evaluations.   He interviewed the parties, their two minor children (separately and also together in various combinations with their parents and others), extended family members, and other relevant individuals, in addition to reviewing certain documents.   On December 15, 2009, he submitted his report, which was unfavorable to Bell. Bell retained his own expert, Dr. Duke Bussey, to prepare a report in rebuttal.

Dr. Aloia's report addressed the issue of religious education.   Dr. Aloia concluded that the children were confused by the Mormon religious instruction Bell has provided them and by Bell's attempts to convince them that they are “Mormon and Jewish.”   The children did not know that Bell was a Mormon until July 2009, when he began to involve them in Mormon religious education, which conflicts with the children's psychological and religious identity as Jewish children.

The child custody issues were tried to the court on June 10 and 11, 2010.   Dr. Aloia, Dr. Bussey, Bell–Kraus, Bell, and other witnesses testified.

Dr. Aloia testified that Bell's practice, beginning in July 2009, of involving the children in Mormon religious education was not the product of “religious conviction based on sincere motive” but rather was “another means of controlling and intimidat[ing] [Bell–Kraus] as well as the children.” ¹  Dr. Aloia testified, “I don't think this is a religious issue as much as it is an issue of using something in the children's experience against their former spouse.   And it is a weapon that is being used.   And the children are suffering because of it.   That is my finding and what I intended to document in my written report.”   Dr. Aloia further testified that if Bell were to continue “taking the children to, say, the Mormon Temple or to Sunday school or involving them in Mormon religious events, celebrations,” such conduct “would result in a substantial threat of harm, psychological harm, to the children.”   He also gave the following partial summary of the basis for that conclusion:  “The issue is the children's identity.   Up until July of 2009, they are four and five years old.   They were raised as Jewish children with Jewish customs and practices.   They celebrated Jewish holidays.   They were attending a Jewish community center and receiving Jewish education.  [¶] Both children reported surprise and confusion that their father took them to the Mormon religious education classes.   They thought he had changed religions.   They were aware that he wore, for at least a time, a Jewish star around his neck.   He disclosed that to me during interviewing.   That as far as those children could see that they are Jewish children, raised as Jewish children and became confused when the teachings that they were being exposed to were contradictory or confusing in terms of their own religious education and their identity.”

In his trial testimony, Dr. Bussey did not take issue with Dr. Aloia's conclusion that Bell's practice of involving the children in Mormon religious education posed a substantial threat of psychological harm to the children.   Dr. Bussey testified that, on the basis of the “limited data” that he was able to obtain, he “really only questioned a limited number of conclusions and recommendations” in Dr. Aloia's report, none of which related to religion.

After hearing argument from counsel, the court issued its statement of decision orally.   Only one aspect of the court's child custody ruling is at issue on this appeal.   In its oral statement of decision, the court ruled that Bell “is prohibited from having the children participate in any religious training classes, including Sunday schools or bible study classes, but not limited to that, without the written consent of [Bell–Kraus].   This order expires on the twelfth birthday of each child.”   Bell timely appealed from the court's order.²

DISCUSSION

On appeal, Bell raises only the following two arguments.   First, he contends that Dr. Aloia did not “have sufficient evidence to conclude exposure to the Mormon religion was harmful to the children.”   Second, he contends that the trial court erred when it concluded that the evidence was sufficient to justify prohibiting Bell from continuing his Mormon religious education of the children without Bell–Kraus's consent.   We conclude that Bell's arguments lack merit.

Both parents have a constitutional right to the free exercise of religion.   Consequently, “a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed.”  (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 505;  see also In re Marriage of Mentry (1983) 142 Cal.App.3d 260, 269 [judicial intervention in the children's religious upbringing must be “conditioned upon a clear affirmative showing of harm or likely harm to the child”];  In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 117 [same].)

The evidence before the trial court met that standard.   Dr. Aloia testified, on the basis of extensive experience and extensive contact with the parties and the children, that continuation of Bell's practice of involving the children in Mormon religious education “would result in a substantial threat of harm, psychological harm, to the children.”   That testimony is fully supported by Dr. Aloia's report and his testimony at trial, including his conclusions concerning the “children's identity” as “Jewish children” and the manner in which the children have already “suffer[ed]” because of Bell's conduct.   Bell's own expert, Dr. Bussey, did not take issue with any of Dr. Aloia's conclusions or recommendations relating to religion.

Bell's challenges to the sufficiency of the evidence consist of selective and misleading characterizations of the record.   For example, Bell asserts that “[t]he evidence showed [Bell–Kraus] had not set foot in a synagogue during the entire time [she and Bell] were together.”   As support for that contention, Bell cites the following question and answer from cross-examination of Dr. Aloia:  “Did [Bell–Kraus] inform you that she hadn't been in a synagogue the whole six years and nine months that she had lived with [Bell?] She had never been in a synagogue during the whole time of their marriage.  [¶] Did she inform you of that?”  “No.” Bell omits the next question and answer:  “Did she tell you she had been in a synagogue?”  “Yes. She told me that she had attended Jewish services, yes.”   Bell cites no evidence that what Bell–Kraus told Dr. Aloia was false, and our own review of the record has revealed none.

Similarly, Bell attributes to Dr. Aloia the statement that Bell “is not sincere in his beliefs and religion,” and Bell points out that he is an elder in the Mormon church.   But as we have already noted, Dr. Aloia never questioned the sincerity of Bell's religious beliefs.  (See footnote 1, ante.)

For all of the foregoing reasons, we conclude that, under the standards articulated in relevant case law, the evidence was sufficient to justify the trial court's order concerning the children's religious upbringing.

DISPOSITION

The order is affirmed.   Respondent shall recover her costs of appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Dr. Aloia never questioned the sincerity of Bell's religious beliefs.   Rather, he questioned the sincerity of Bell's motives in involving the children in Mormon religious education.   Dr. Aloia likewise never exhibited any bias against the Mormon faith or in favor of the Jewish faith.   He specifically referred to the Mormon faith as a “wholesome faith” and stated that he “absolutely respect[s] ․ Mr. Bell's or anybody else's right to practice any faith that they want to.”.  FN1. Dr. Aloia never questioned the sincerity of Bell's religious beliefs.   Rather, he questioned the sincerity of Bell's motives in involving the children in Mormon religious education.   Dr. Aloia likewise never exhibited any bias against the Mormon faith or in favor of the Jewish faith.   He specifically referred to the Mormon faith as a “wholesome faith” and stated that he “absolutely respect[s] ․ Mr. Bell's or anybody else's right to practice any faith that they want to.”

FN2. Bell–Kraus's motions to seal the child custody report, to seal the respondent's brief filed on August 10, 2011, and to augment the record on appeal are granted..  FN2. Bell–Kraus's motions to seal the child custody report, to seal the respondent's brief filed on August 10, 2011, and to augment the record on appeal are granted.

CHANEY, J. JOHNSON, J.