In Re Cianciotto

No. 02-440
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 106N
IN RE
DOMENICO VINCENZO CIANCIOTTO,
a Minor Child,
JOSEPH S. MARKS,
Petitioner and Cross-Appellant,
and
EDNA KATHERINE KENT,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. BDF-90-923,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Respondent and Appellant:
Edna K. Kent (pro se), Missoula, Montana
For Petitioner and Cross-Appellant:
Mark P. Yeshe, Attorney at Law, Helena, Montana
Submitted on Briefs: January 9, 2003
Decided: April 24, 2003
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, 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 The Petitioner, Joseph Marks, moved the District Court for the First Judicial District
in Lewis and Clark County to modify an existing parenting and visitation plan for Domenico
(Dominic) Cianciotto. The Respondent, Edna Kent, is Dominic's primary custodian. The
District Court modified the parties' parenting plan, scheduled visitation between Joseph and
Dominic, and placed restrictions on conversations that Joseph could have with Dominic.
Edna appeals the District Court's order and Joseph cross-appeals. We affirm in part, and
reverse in part, the order of the District Court.
¶3 The issues on appeal are whether the District Court abused its discretion when it
ordered visitation on one Sunday per month between Dominic and Joseph and limited what
Joseph and other members of his family could say during those visits.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Joseph and Edna are the natural parents of Dominic, who was born on May 18, 1989.
Dominic is in the primary custody of Edna, who lives with her husband Steve Kent, whom
she married in 1995. Joseph has joint custody of Dominic, pursuant to the District Court's
original decree issued on May 31, 1990.
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¶5 Since March 1990, Joseph and Edna have periodically modified their parenting plan
with respect to visitation and support. In 1993, Edna, Steve, and Dominic were "born-again"
as Christians, decided to home school Dominic, and all three are very involved with their
church and church activities. Dominic attends church activities each Thursday and Sunday.
¶6 The parties have very different lifestyles and religious views, which have contributed
to sporadic visitation between Joseph and Dominic. On May 23, 2000, Joseph filed a motion
with the District Court for a new parenting plan, an appointment of a guardian ad litem, and
a parenting evaluation.
¶7 On November 16, 2000, the District Court granted Joseph's motion for a guardian ad
litem and appointed Sara McKiernan to serve as Dominic's guardian and to provide a
recommendation to the court regarding a parenting plan and Dominic's best interests. The
District Court also granted Joseph's motion for a parenting evaluation and ordered the parties
to submit to an evaluation by Philip Bornstein, Ph.D. Bornstein met with the family and
provided a report of his findings and conclusions to McKiernan and the court. McKiernan
also met with the family several times, together and individually, and provided a report to
the District Court on February 14, 2001.
¶8 In McKiernan's report, she stated that Joseph and Edna were amiable people, but that
their openly-expressed negative feelings toward each other as well as their religious and
lifestyle differences had placed unnecessary stress on Dominic. McKiernan's report provided
a suggested parenting plan that would gradually re-involve Joseph in Dominic's life.
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¶9 On June 6, 2001, the District Court considered McKiernan's and Bornstein's reports,
had a discussion with Dominic on April 12, 2001, and ordered a parenting plan that
established visitation between Joseph and Dominic. The District Court ordered visitation
for Joseph with Dominic on four Saturdays beginning June 16, 2001. If McKiernan
determined it was in Dominic's best interests, the court ordered that Joseph be allowed
visitation with Dominic from Friday until Sunday morning on alternate weekends.
¶10 On December 10, 2001, McKiernan sent a letter to the court to inform it that the
original parenting plan, which required her to consult with Dominic before arranging
visitation, was too "overwhelming" for Dominic and suggested that Joseph and Edna make
arrangements for visitation. The parties were unable, however, to agree on arrangements for
visitation, and the District Court requested that McKiernan provide a visitation schedule for
Dominic. On February 25, 2002, McKiernan recommended that Joseph visit, from Friday
to Saturday one weekend per month and Friday until Sunday evening one weekend per
month. McKiernan noted that extending Joseph's visit until Sunday evening would cause
Dominic to miss attending church activities once per month.
¶11 The District Court entered an order on February 27, 2002, informing the parties of its
intent to adopt McKiernan's schedule. Neither party appealed the District Court's order
regarding its intent to adopt McKiernan's schedule. However, Joseph requested a
clarification to set forth the exact hours for each visit, and on April 8, 2002, Edna filed a
response to Joseph's request, stating that the District Court should amend the parenting plan
to accommodate Dominic's need and desire to attend church on Sundays.
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¶12 On May 9, 2002, the District Court entered its order adopting McKiernan's schedule,
with some adjustments to reflect the exact visitation hours that Joseph should have with
Dominic. Edna filed a motion to reconsider, which the District Court denied on June 6,
2002. Edna appealed the order of the District Court on June 10, 2002, and Joseph cross-
appealed on June 20, 2002.
STANDARD OF REVIEW
¶13 We review a district court's findings of fact to determine whether they are clearly
erroneous. In Re Custody of Arneson-Nelson, 2001 MT 242, ¶ 15, 307 Mont. 60, ¶ 15, 36
P.3d 874, ¶ 15. Findings of fact are clearly erroneous where they are not supported by
substantial credible evidence, a district court misapprehends the effect of the evidence, or
where review of the record convinces this Court that a mistake has been made. Arneson-
Nelson, ¶ 15. We will reverse a district court's decisions related to the modification of the
custody or visitation of a child only where a clear abuse of discretion is demonstrated.
Arneson-Nelson, ¶ 15.
DISCUSSION
ISSUE 1
¶14 Did the District Court abuse its discretion when it ordered Sunday visitation between
Dominic and Joseph?
¶15 The District Court provided for visitation on every other weekend with the second
monthly visitation to take place between 7:00 p.m. on Friday and 7:00 p.m. on Sunday. As
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a result, Dominic cannot attend church activities on Sunday one weekend each month. The
District Court noted in its order that:
The Court is quite concerned about Dominic's religious beliefs and the respect
to which they are entitled. The schedule announced above may conflict with
Dominic's scheduled religious observations. Unfortunately, that is what must
occur in cases such as this. However, the Court would hope that Joseph would
have a great deal of respect for Dominic's deeply held religious convictions
and do his best to see that they are accommodated.
¶16 Edna contends that the District Court abused its discretion when it ordered that
Dominic visit with Joseph on one Sunday per month because it failed to provide specific
findings of fact with respect to Dominic's wishes concerning visitation with Joseph. Edna
also contends that the District Court's order interferes with Dominic's wishes and his
constitutional right to the free exercise of religion.
¶17 Joseph contends that the District Court did not need to make specific findings
regarding Dominic's wishes because both parties were aware of his wishes, and that the
District Court did not need to comply with Dominic's wishes when it implemented a
parenting plan that reflected Dominic's best interests. In addition, Joseph contends that the
visitation on one Sunday per month, even if it is an infringement upon Dominic's exercise
of religion, was not an abuse of discretion if in Dominic's best interest.
¶18 When determining a parenting plan for a child, § 40-4-212, MCA, provides that a
District Court must consider the wishes of the child, although a district court is not required
to determine visitation based on a child's preferences. In Re Marriage of Arrotta (1990), 244
Mont. 508, 513, 797 P.2d 940, 943. We have held that where a district court has interviewed
a child as to his or her wishes with respect to custody, that a district court must consider the
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wishes of a child and must make a specific finding as to that child's wishes. In Re Marriage
of Kaasa (1979), 181 Mont. 18, 24, 591 P.2d 1110, 1114; In Re Marriage of Kramer (1978),
177 Mont. 61, 69, 580 P.2d 439, 444. We have applied the same standard to cases involving
visitation with a noncustodial parent. Custody of Maycelle D. (1984), 213 Mont. 225, 229-
30, 691 P.2d 410, 412.
¶19 We also held in Maycelle that if a district court decides to not follow the child's
wishes, the district court should state in its findings the reasons that it did not follow the
child's wishes. Maycelle, 213 Mont. at 230, 691 P.2d at 412. However, where the record
clearly indicates what a child's wishes are, there is no need for a district court to publish
specific findings as to the child's wishes. In Re Marriage of Arbuckle (1990), 243 Mont. 10,
14, 792 P.2d 1123, 1125. In Arbuckle, we explained the policy behind the directive to
district courts to provide a record of their interviews with children as follows: "[w]ithout the
record of the interview and without specific findings as to the wishes of the children, counsel
and this Court do not know with any degree of certainty the basis for the District Court's
conclusions on custody matters." Arbuckle, 243 Mont. at 14, 792 P.2d at 1125 (quoting In
re Marriage of Brown (1978), 179 Mont. 417, 425-26, 587 P.2d 361, 366).
¶20 The record in this case clearly shows that both parties were aware of Dominic's
wishes. The reports from Dr. Bornstein and McKiernan, as well as the statements by Joseph
and Edna show that Dominic wishes to have visitation time with Joseph, but that he also
would like to pursue his church activities on Thursdays and Sundays and would like to
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participate in them as much as possible, even if that means that he will miss some visitation
time with Joseph.
¶21 Edna contends that, in light of Dominic's wishes, the District Court erred when it
failed to specifically state its reasons for not following Dominic's preferences for visitation.
However, we note that the District Court's order that established Dominic's parenting plan
explicitly adopted McKiernan's February 25, 2002, recommendation for visitation, which
stated, "it is my belief that Dominic's best interests will be served by setting a schedule that
does not involve him in any planning or decision making." In part, that conclusion was
based upon her prior December 10, 2001, report to the court where she expressed her opinion
that the previous parenting plan was not in Dominic's best interests. McKiernan stated:
It is my opinion, and it could very well be in error, that the stress of
"choosing" his visitation is becoming overwhelming for Dominic. . . . It may
make Dominic's life much easier if the burden of his being in charge of visits
comes to an end. I truly believe that now is the time for the parents to do the
scheduling and communicating between themselves, and neither Joe Marks
nor Edna Kent [are] in disagreement with this.
Accordingly, we conclude that the District Court did provide sufficient information in its
order to explain why it disregarded Dominic's wishes.
¶22 We will next consider whether the District Court abused its discretion by not
following Dominic's preferences and whether its parenting plan violated Dominic's right to
the free exercise of religion by providing for visitation between Joseph and Dominic on
Sunday evenings. Section 40-4-227(1), MCA, provides that:
It is the policy of the state of Montana:
(a) to recognize the constitutionally protected rights of parents and the
integrity of the family unit;
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(b) to recognize a child's constitutionally protected rights, including all
fundamental rights unless those rights are specifically precluded by laws that
enhance their protection; and
(c) to ensure that the best interests of the child are met in parenting
proceedings.
¶23 We recognize that a district court, pursuant to the criteria set forth in § 40-4-212,
MCA, may consider "all relevant parenting factors" when determining a parenting plan based
upon the best interests of a child. In In Re Marriage of Ulland (1991), 251 Mont. 160, 169,
823 P.2d 864, 870, we stated:
The trial judge is singularly equipped to assess a young child's ability to
formulate and articulate her custody wishes and weigh that preference in light
of the other evidence and factors enumerated in § 40-4-212, MCA. In re
Marriage of Merriman (Mont.1991), 807 P.2d 1351, 1354, 48 St.Rep. 275,
276. A child's expressed wishes are not determinative of best interest.
Marriage of Merriman, 807 P.2d at 1354, 48 St.Rep. at 276.
Following the policy guidelines set forth in § 40-4-227(1), MCA, and the determination of
a child's best interests set forth in § 40-4-212, MCA, the District Court concluded that it was
in Dominic's best interests to visit with Joseph from Friday until Sunday evening, one
weekend each month, despite Dominic's desire to attend church. The record amply supports
that spending additional time with Joseph was in Dominic's best interests. We conclude that
the District Court did not abuse its discretion when it ordered Sunday visitation between
Joseph and Dominic, despite Dominic's wishes to attend church activities.
¶24 While Edna contends that the visitation schedule violates her and Dominic's rights to
freely exercise their religious beliefs, Joseph also has a constitutional interest in the parent-
child relationship. See Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388,
1394-95, 71 L.Ed.2d 599. Edna has cited no authority to suggest that the District Court
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improperly balanced those competing interests. Rule 23(a)(4), M.R.App.P., requires that she
do so before we may disturb the District Court's conclusion.
¶25 For these reasons, we conclude that the District Court did not abuse its discretion
when it ordered Sunday visitation between Joseph and Dominic, and we affirm the decision
of the District Court on direct appeal.
ISSUE 2
¶26 Did the District Court abuse its discretion when it admonished Joseph and his family
members to not discuss religion and other matters with Dominic?
¶27 The District Court also stated in its parenting plan that "[t]he Court again admonishes
Joseph and his family to not discuss Dominic's church, religious views, court matters, or
Edna and her new husband."
¶28 Joseph contends that the District Court's admonishment was an overly broad
restriction on his right to free speech and that the District Court lacked the jurisdiction to
restrain his family members' speech because they are not parties to this matter. Edna admits
that the District Court's restriction is overly broad "and should be made specific as to any
restrictions it places on Joe's speech with respect to his conversations with Dom."
¶29 While the District Court's use of the word "admonish" suggests that the District Court
intended to warn Joseph and his family, rather than order Joseph and his family to refrain
from engaging in certain conversations with Dominic, to the extent that the District Court's
Order implies such a directive, we agree with the parties that the District Court's
admonishment, as an order to Joseph and his family members, was overly broad. First, it
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is apparent that Joseph's family members are not subject to these proceedings, and the
District Court lacked the authority to regulate their speech or conduct. In addition, to the
extent that the District Court's admonishment prohibits Joseph from expressing his own
views as a parent, it is also an overly broad restriction. We have held that a state may, in
limited circumstances, regulate speech where the curtailment is necessary to advance a
significant and legitimate state interest. State v. Lance (1986), 222 Mont. 92, 103, 721 P.2d
1258, 1266. The State's interest in this case is the promotion and protection of Dominic's
best interests, and is a significant and legitimate state interest. However, precluding Joseph
from engaging in any form of discussion of the matters listed in the admonishment is not
necessary to protect Dominic's best interests.
¶30 Joseph agrees that the District Court can and should restrict a parent's speech where
it is detrimental to a child's best interests, and further agrees that the District Court could
require him to discuss the mentioned subjects "in a respectful manner." In addition, it
follows that Joseph has the duty to promote Dominic's best interests by protecting him from
disparaging comments by Joseph's friends and family regarding these family matters.
Accordingly, we reverse the decision of the District Court to the extent that it unnecessarily
restricted Joseph's right to freely express his own views and remand to the District Court to
reformulate appropriate instructions which may be necessary for Dominic's best interests but
do not unnecessarily restrict Joseph's right to freely express his own religious beliefs or
disbelief, or otherwise unduly restrict his right to free expression.
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¶31 For the foregoing reasons, the decision of the District Court is affirmed in part,
reversed in part, and remanded for further proceedings consistent with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
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