Vieke v. Heikkinen , 2005 MT 176N ( 2005 )

No. 04-560
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 176NBRIAN VIEKE,
Plaintiff and Appellant,
v.
DONNA HEIKKINEN,
Defendant and Respondent.
APPEAL FROM: The District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DV 2004-99,
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert C. Kelleher, Jr., Attorney at Law, Butte, Montana
For Respondent:
Daniel R. Sweeney, Attorney at Law, Butte, Montana
Submitted on Briefs: June 15, 2005
Decided: July 12, 2005
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal
Operating Rules (Memorandum Opinions), we determine that Montana law clearly controls
the legal issues raised in this appeal. Further, pursuant to Section I, Paragraph 3(d)(v), the
following decision shall not be cited as precedent but shall be filed as a public document
with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause
number and result to the State Reporter Publishing Company and to West Group in the
quarterly table of noncitable cases issued by this Court.
¶2 Brian Vieke (Vieke) appeals from the District Court’s dismissal of his complaint.
Vieke brought suit against Donna Heikkinen. Vieke appeals. We affirm.
BACKGROUND
¶3 Vieke alleges the following facts in his complaint. Vieke and Heikkinen had been
living together when Heikkinen gave birth to Jorianne Vieke (Jorianne). Before Jorianne was
even a year old, the parties separated. The parties instituted a case in district court
concerning parental rights. That district court refused to terminate Vieke’s parenting rights.
Cassie is Heikkinen’s daughter by a previous marriage whom Vieke has treated like his own
daughter. Vieke alleges that Heikkinen has interfered with the natural love and affection
Jorianne and Cassie had for him by inducing their “young and impressionable minds and
emotions to hate [him].”
¶4 Vieke had attended the Assembly of God Church in Butte for twenty years. In 2001,
Heikkinen told the elders of that church that she had a restraining order against Vieke, so he
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could not be in the same church with her. The ushers forcibly ejected Vieke from the church
in view of all of the other parishioners, thus causing Vieke great embarrassment and
emotional distress. Because he could no longer attend the Assembly of God Church, Vieke
began attending the Abundant Life Church in Butte. One Sunday, Heikkinen came to that
church after Vieke had arrived. Shortly thereafter, two men approached him and told him
that a restraining order required him to leave the church. Vieke felt he was having a
tachycardia attack. The District Court dismissed Vieke’s lawsuit by holding that he should
have pleaded the alleged parental alienation in the parental rights case. The District Court
further held that Vieke’s religious freedom allegation fails to state a claim upon which relief
can be granted. Vieke appeals.
¶5 We restate Vieke’s issues on appeal as follows:
¶6 1. Does Montana Constitution Article II, Section 16, require recognition of a cause
of action by one parent against the other parent for alienating the affections of a child?
¶7 2. Does § 45-5-631(1), MCA, that provides for criminal sanctions for interference
with parent-child contact, create a civil cause of action against a party who violates the
statute?
¶8 3. Does a party have a right to an injunction preventing another party from using an
order of protection as a sword to keep the first party out of his church?
STANDARD OF REVIEW
¶9 For the purposes of a Rule 12(b)(6), M.R.Civ.P., motion, the movant admits all well-
pled allegations in the complaint. Missoula City-County Air Pollution Control Bd. v. Bd. of
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Envtl. Review (1997), 282 Mont. 255, 259, 937 P.2d 463, 466. Rule 12(b)(6), M.R.Civ.P.,
decisions are conclusions of law that this Court reviews de novo. Missoula City-County Air
Pollution Control Bd., 282 Mont. at 259, 937 P.2d at 466.
DISCUSSION
I. Cause of Action for Alienating the Affections of a Child
¶10 Vieke contends that Montana Constitution Article II, Section 16, requires this Court
to create a cause of action for deliberate alienation of a child’s natural affection for her
parent. That section provides that “[c]ourts of justice shall be open to every person, and
speedy remedy afforded for every injury of person, property, or character.” Nevertheless,
Vieke fails to argue this issue in his brief. Instead, he argues about the abolition of
interspousal tort immunity. Rule 23(a)(4), M.R.App.P., requires an appellant’s brief to
contain the “contentions of the appellant with respect to the issues presented, and the reasons
therefor . . . .” “It is not this Court’s obligation to guess a party’s precise position or to
develop legal analysis that may support that position.” Harland v. Anderson Ranch Co.,
2004 MT 132, ¶ 33, 321 Mont. 338, ¶ 33, 92 P.3d 1160, ¶ 33. Accordingly, we decline to
address this argument.
II. Cause of Action Under § 45-5-631(1), MCA
¶11 Vieke argues that the criminal statute § 45-5-631(1), MCA, necessarily creates a civil
cause of action. For further support, he cites § 27-1-601, MCA: “All civil causes of action
for alienation of affections of husband or wife are hereby abolished.” The canon expressio
unius est exclusio alterius means the expression of one thing implies the exclusion of
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another. State v. Good, 2004 MT 296, ¶ 17, 323 Mont. 378, ¶ 17, 100 P.3d 644, ¶ 17. Thus,
Vieke argues that, because the State has specifically abolished claims for alienation of
affections for husband or wife, it must have implicitly meant to create a cause of action for
alienating the affections of children. Vieke cites cases involving interference with custodial
rights. See, e.g., McEntee v. New York Foundling Hosp. (N.Y. Sup. Ct. 1959), 194 N.Y.S.2d
269.
¶12 By creating a criminal statute, the Legislature does not necessarily create a civil cause
of action. By abolishing one cause of action, the Legislature does not create another.
III. Right to Attend Religious Services
¶13 Vieke argues Heikkinen was improperly using the restraining order to exclude him
from church. However, he cites only § 45-5-221, MCA, which is Montana’s hate crimes
statute, as granting him the right to attend a church of his choice without hindrance or
harassment.
¶14 A hate crimes statute does not lead to a conclusion that Vieke’s freedom of religion
was violated. As he did earlier, Vieke fails to develop his argument with relevant citations.
For the reasons set forth under Rule 23(a)(4), M.R.App.P., and above, we decline to address
this argument.
¶15 Affirmed.
/S/ W. WILLIAM LEAPHART
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We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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