                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                                In re the Matter of:

                      Donna J. Peace, Petitioner/Appellee,

                                          v.

                 Edward D. Peace, Sr., Respondent/Appellant.

                              No. 1 CA-CV 13-0150
                               FILED 5-8-2014


             Appeal from the Superior Court in Navajo County
                          No. S0900D020070343
                    The Honorable Ralph Hatch, Judge

               AFFIRMED IN PART, REVERSED IN PART


                                    COUNSEL

Edward D. Peace, Sr., Pinetop
Respondent/Appellant
                            PEACE v. PEACE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1            Edward D. Peace, Sr. (“Husband”) appeals from a family
court order modifying parenting time and finding him in contempt of
court for unpaid costs, attorneys’ fees, and child support.         In a
contemporaneously published opinion, we separately address Husband’s
argument related to the family court’s order and judgment for $13,000
(plus accruing interest) of social security benefits paid to Husband as a
representative payee on behalf of the minor children.             In this
memorandum decision, we address Husband’s remaining claims and
affirm the family court order.

                 FACTS AND PROCEDURAL HISTORY

¶2            In July 2007, Donna J. Peace (“Wife”) filed a petition for
dissolution of marriage, seeking physical custody of the parties’ four
children and an award of child support. In August 2009, the family court
entered a signed decree of dissolution referencing and incorporating its
previous rulings on the division of the parties’ assets and liabilities, child
support and custody, and spousal maintenance, including a July 2009
ruling on child support in which the family court found Husband was
wilfully underemployed and ordered him to pay arrearages of $21,010.00
and monthly child support of $597.00. This court affirmed the family
court order in Peace v. Peace, 1 CA-CV 09-0668, 2011 WL 192896 (Ariz.
App. Jan. 20, 2011) (mem. decision).

¶3           In June 2012, Wife filed petitions to modify parenting time
and for contempt.       Relevant to this decision, Wife requested a
modification of parenting time because Husband’s housing situation was
unstable and Husband’s conduct demonstrated a lack of interest in
continuing overnight visits. Among other claims in her petition for
contempt, Wife alleged that Husband was delinquent in satisfying court
ordered child support arrearages, costs, and attorneys’ fees.




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                          Decision of the Court

¶4            In response, Husband filed cross-petitions for contempt and
to modify parenting time and child custody. Husband also filed a
“Petition to Set Aside Orders,” through which he sought to modify the
family court’s previous order on the basis that his previously-
undiagnosed post-traumatic stress disorder (“PTSD”) — related to his
service while stationed in Korea as a medic in the U.S. Army during the
Vietnam War — interfered with his ability to be gainfully employed
and/or to pay off such arrearages pursuant to the court’s order.

¶5            After hearings on August 29 and October 5, the family court
found Husband in contempt because he owed and had willfully refused to
pay Wife child support, costs, and attorneys’ fees, including $20,107.00 in
child support arrearages (excluding interest). The court further found
that, even if he suffered from PTSD, Husband, an attorney by training,
remained willfully under-employed by working part-time at a fast food
restaurant. The court’s signed order converted the unpaid child support,
costs, and attorneys’ fees into a civil judgment.

¶6            The family court also modified parenting time to reflect the
changed habits of the parties and because of Husband’s housing
instability. The portion of the order that modifies parenting time states:

      During the school year the Court does award [Husband]
      day-time parenting time on the first weekend of every
      month from Saturday at 9:00 AM until 6:00 PM; and on the
      third week-end of every month from Sunday at 9:00 AM
      until 6:00 PM; and a weekday visit during the second and
      forth weeks of every month on Wednesday from 4:00 PM
      until 7:00 PM. During the summer school vacation months
      the [Husband’s] Wednesday visits will be from 9:00 AM
      until 6:00 PM. [Wife] and [Husband] will alternate Christmas
      day every year. [Wife] will have Christmas day in odd
      numbered years and [Husband] will have it in even
      numbered years.

Husband filed a motion for new trial, which the family court denied.




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                           Decision of the Court

¶7            Husband filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9 and
Arizona Revised Statutes (“A.R.S.”) section 12-2101(B) (West 2014). 1

                              DISCUSSION

      I.     Modification of Parenting Time

             A.     Religious Liberties

¶8            On appeal, Husband argues the family court order
modifying parenting time violates his religious liberties under the First
Amendment of the United States Constitution and the Arizona Free
Exercise of Religion Act. Husband failed to raise these claims before the
family court.

      Normally, an appealing party may not urge as grounds for
      reversal a theory which he failed to present below. . . .
      However, this rule is procedural and not jurisdictional. The
      rule is for the benefit of the party against whom the defense
      is newly asserted on appeal and is intended to prevent
      surprise.

Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984)
(citations omitted). We address Husband’s religious liberties arguments
because Wife failed to file a brief pursuant to ARCAP 13(b).

                    1.     Establishment Clause

¶9           Husband argues the family court order modifying parenting
time violated the Establishment Clause of the First Amendment by listing
Christmas as a visitation day to the exclusion of the holy days of
Husband’s professed Bahá’í Faith. The First Amendment of the United
State Constitution prohibits state action “respecting an establishment of
religion.” U.S. Const. amend. I; Everson v. Bd. of Educ., 330 U.S. 1 (1947)
(applying the Establishment Clause to the states by incorporation through
the Fourteenth Amendment).




1      We cite the current Westlaw version of the applicable statutes,
rules, and constitutional provisions because no revisions material to this
decision have since occurred.



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                           Decision of the Court

¶10              Relying on the United States Supreme Court’s “endorsement
test” jurisprudence, Husband argues the family court order “creates a
perception in the mind of a reasonable observer that the court is either
endorsing Christianity or disapproving of the Baha’i Faith.” Pursuant to
the endorsement test, “[e]xamination of both the subjective and the
objective components of the message communicated by a government
action is . . . necessary to determine whether the action carries a forbidden
meaning.” Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J.,
concurring); see also County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989)
(“The effect of the [challenged state action] depends upon the message
that the government’s practice communicates: the question is what
[observers] may fairly understand to be the purpose of the [challenged
state action].” (citation and quotation omitted)). “What is crucial is that a
government practice not have the effect of communicating a message of
government endorsement or disapproval of religion.” Lynch, 465 U.S. at
692.

¶11           In this case, the challenged family court order states in
relevant part: “[Wife] and [Husband] will alternate Christmas day every
year. [Wife] will have Christmas day in odd numbered years and
[Husband] will have it in even numbered years. Christmas day is from
9:00 AM until 6:00 PM.” Viewed objectively, this statement does not
violate the endorsement test. Viewed subjectively, Husband’s argument is
belied by the mediation agreement to which he consented. Apportioning
visitation between the two parents, the mediation agreement listed a
number of Bahá’í Faith holy days and also stated: “Christmas Day and
Christmas Week will be rotated annually.” Husband did not express any
concerns about Christmas Day in the mediation agreement or initial order
establishing parenting time; thus Husband cannot persuasively claim the
reference to Christmas Day in this order has the effect of communicating a
message of government endorsement of Christianity or disapproval of the
Bahá’í Faith.

¶12           Husband also argues that the family court order’s inclusion
of Christmas as a visitation day “coerces Husband and his children to
participate in Christianity.” We disagree. The family court order, like the
mediation agreement before it, lists Christmas as a visitation day between
Husband and his four school-aged children presumably because
Christmas is a federal holiday that the children will be guaranteed to have
off from school, thus giving Husband an extra day with his children every
other year.




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                          Decision of the Court

                    2.     Arizona Free Exercise of Religion Act

¶13             Husband argues that because the family court order does
not grant him visitation with his children during holy days of the Bahá’í
Faith, 2 it violates the Arizona Free Exercise of Religion Act (“FERA”). As
a threshold matter, in order to invoke the heightened scrutiny established
by FERA, Husband must demonstrate that the family court order
substantially burdens his free exercise of religion. See A.R.S. § 41-
1493.01(B) (“Except as provided in subsection C, government shall not
substantially burden a person’s exercise of religion even if the burden
results from a rule of general applicability.”). “[T]he term substantially
burden is intended solely to ensure that this article is not triggered by
trivial, technical or de minimis infractions.” A.R.S. § 41-1493.01(E).

¶14            Here, Husband does not demonstrate that the family court
order substantially burdens his exercise of religion, because the
modification of parenting time has, at most, a de minimis effect. Although
the order does not guarantee that Husband will be able to celebrate the
Bahá’í Faith holy days with his children, the order does not bar him from
doing so. 3 Further, the order does not even have the incidental effect of
barring Husband from celebrating these holy days if he cannot secure
visitation. Thus, the family court order does not infringe upon Husband’s
religious liberties.

             B.     Reducing and Modifying Husband’s Parenting Time

¶15          Husband argues the trial court abused its discretion by
modifying parenting time to reduce Husband’s total number of visitation
days and awarding him visitation on Sunday, a day Husband is regularly
scheduled to work. Because Husband fails to cite any legal authority in
support of this argument, we decline to reach the merits. See ARCAP
13(a)(6) (an opening brief must set forth “[a]n argument which shall


2       For an explanation of the Bahá’í Calendar, see National Spiritual
Assembly of the Bahá’ís of the United States, The Bahá’í Calendar,
http://www.bahai.us/welcome/principles-and-practices/bahai-calendar
(last visited May 5, 2014).

3     We also note that Wife’s testimony at the August 29 contempt
hearing suggests that Husband can negotiate with Wife regarding
parenting time in addition to those days mandated by the court order,
which would include Bahá’í holy days.



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                             PEACE v. PEACE
                            Decision of the Court

contain the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities,
statutes and parts of the record relied on.”); Polanco v. Indus. Comm’n of
Ariz., 214 Ariz. 489, 492 n.2, ¶ 6, 154 P.3d 391, 394 n.2 (App. 2007).
Accordingly, we affirm the family court order modifying parenting time.

       II.    Contempt for Failure to Pay Child Support

¶16           Husband appeals that portion of the family court’s order
related to Wife’s petition for contempt. A finding of civil contempt is not
appealable. See, e.g., Berry v. Superior Court, 163 Ariz. 507, 508, 788 P.2d
1258, 1259 (App. 1989) (“The rule is well established that civil contempt
adjudications are not appealable.”). In the exercise of our discretion,
however, we elect to treat Husband’s appeal from the family court’s
contempt order as a petition for special action and accept special action
jurisdiction. See State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30,
¶ 18, 66 P.3d 70, 73 (App. 2003) (citation omitted); A.R.S. § 12-120.21(A)(4).

              A.     Social Security Benefits

¶17          Husband appears to argue that, beginning in April 2010, the
children’s social security benefits should have off-set the child support
arrearage owed by Husband, and therefore should have mitigated “any
claim of contempt of court or failing to attempt to pay court ordered
amounts.” In support of his argument, Husband cites Section 26(B)(1) of
the Arizona Child Support Guidelines, which states:

       B. Benefits, such as Social Security Disability or Insurance,
       received by a custodial parent on behalf of a child, as a result
       of contributions made by the parent paying child support
       shall be credited as follows:

       1. If the amount of the child’s benefit for a given month is
       equal to or greater than the paying parent’s child support
       obligation, then that parent’s obligation is satisfied.

A.R.S. § 25-320 app. (“Guidelines”). However, the Guidelines do not end
with Husband’s quoted excerpt. Instead, the next section states:

       2. Any benefit received by the child for a given month in
       excess of the child support obligation shall not be treated as an
       arrearage payment nor as a credit toward future child support
       payments.



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                           Decision of the Court

Guidelines, § 26(B)(2) (emphasis added). Beginning in April of 2010, Wife
became the representative payee and started receiving the social security
payments on behalf of the children. However, Wife is not claiming, and
the family court did not find, that Husband failed to pay child support
beginning in April 2010; instead, it appears from this record that
Husband’s arrearages primarily stem from a July 2009 family court order
for child support payments that Husband never satisfied.            Thus,
Husband’s argument fails.

             B.     Post-Traumatic Stress Disorder

¶18           Husband argues that the family court erred by finding that
Husband wilfully refused to pay court ordered attorneys’ fees, costs, and
child support arrearages. Specifically, Husband argues that the court
discounted evidence that he suffers from PTSD. This argument is without
merit. The family court expressed doubt that Husband suffered from
PTSD, and we defer to that court’s determination to the extent the issue is
one of credibility. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258,
262 (App. 2009). The family court nonetheless found that, even if
Husband has PTSD, he has remained willfully under-employed. The
family court based its holding, at least in part, on its own observations of
Husband’s handling of this case, including Husband’s demonstrated legal
knowledge and ability. Therefore, on this record, we cannot say that the
family court erred.

                             CONCLUSION

¶19          We affirm that portion of the family court’s order modifying
parenting time, finding Husband in contempt, and entering judgment for
unpaid child support arrearages, costs and attorneys’ fees.




                                   :MJT




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