Compton v. Gilmore

• Decision Date: 25 February 1977
• Docket Number: No. 12058,12058
• Citation: 98 Idaho 190,560 P.2d 861
• Parties: Robert W. COMPTON, Plaintiff-Appellant, v. Martha R. Compton GILMORE, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 861

560 P.2d 861

98 Idaho 190

Robert W. COMPTON, Plaintiff-Appellant, v. Martha R. Compton GILMORE, Defendant-Respondent.

No. 12058.

Supreme Court of Idaho.

Feb. 25, 1977.

Robert S. Williams, Moscow, for plaintiff-appellant.

Allen V. Bowles, Moscow, for defendant-respondent.

BISTLINE, Justice.

This appeal raises a challenge to an order modifying a final divorce decree whereby a father was enjoined from providing religious training to his five year old daughter. We reverse that order.

Robert and Martha Compton were married in October, 1961, and have one child, Kari, born on April 22, 1969. Robert (plaintiff-appellant) was granted a default divorce in December of 1971, with the court awarding custody of Kari to her mother, Martha, and, as also requested, '50% visitation rights' to her father, Robert. In October of 1972, Martha (defendant-respondent) moved for a modification, alleging difficulties in interpreting the '50%' language. A hearing was held two weeks later; and the decree was modified leaving custody in Martha, with Robert's visitation set at three weekends and one midweek visitation per month.

In the following month, November of 1972, Martha, without consulting Robert, made the decision that it was in Kari's best interest for Kari to live with Robert, who was by then married to Marilyn; Kari then lived with Robert and Marilyn with Martha having such visitation as she deemed proper. All of the foregoing was accomplished without asking for any court guidance or approval.

In the spring of 1974, however, Martha made a new decision; this was that Kari would be better off living with her; in August of 1974 Kari was later returned to Martha. Meanwhile, Martha has been living with Todd Gilmore.

On November 6, 1974, Martha (not yet Gilmore) filed a new motion seeking to cut Robert's visitation down to one 30-hour weekend per month, and one summer month, primarily alleging her belief that it would be better for Kari if Robert's visitations were confined to what she thought had been reasonable when she had been the visiting parent. Eight days after the filing, Todd and Martha culminated their two-year courship with a marriage ceremony. A hearing on Martha's motions followed three weeks after her marriage to Todd Gilmore. An order was entered on February 10, 1975 (amended on March 19, 1975), limiting Robert's visitation to the one weekend per month, six weeks in the summer, and alternating holidays.

Two months later Robert filed his motion claiming a material change in circumstances due to his imminent move to Boise. He requested extended holiday and visitation rights, this to be in lieu of his one-a-month weekend visits. Martha filed an opposing affidavit in which she alleged that conduct on Robert's part tended to undermine her relation with Kari. She contended that Kari was 'receiving input from plaintiff (Robert) which results in her becoming temporarily antagonistic toward defendant (Martha) and causing Kari to question defendant's basic goodness.' This affidavit goes on to say that such was evidenced by, among other things, a remark of little Kari: 'You and Todd (Mr. Gilmore) are walking away from God.'

Robert's motion was heard in July of 1975, and an order entered on August 2, 1975, in which his future visitation and phone call rights were spelled out in the minutest detail. The order specified that each party 'refrain from ever speaking to Kari about the other parent in a derogatory manner.'

Robert was also ordered to 'refrain from providing formal religious training for Kari Compton,' and the entry of such order he assigns as error, challenging it as in violation of his (and Kari's) right to freedom of speech and of religion as provided in both the United States and Idaho Constitutions. Robert argues that the restraining order is too vague and ambiguous to be understood, much less to be enforced by a contempt citation, and thus a violation of his right to due process of law.

Martha argues that, by statute, the court is empowered to address all issues relating to the child's care and welfare, I.C. § 32-705; she contends that Robert's constitutional right to freedom of speech and religion is outweighed when it comes in conflict with the State's interest in the welfare of the child. She argues further that the court order is not constitutionally vague since its meaning, construed in light of the whole record, is clear. She argues that:

'The Court's order requires the appellant to restrict the meetings that Kari Comption is taken to and to restrain the significance which appellant places on the religious aspects of his home life while Kari Compton is present.'

We find no need to reach such lofty constitutional questions. The record is uncontradicted that prior to the hearing in December of 1974, Martha had never complained, or even intimated to Robert that his religious guidance of Kari was creating a problem of any kind. Religion went entirely unmentioned by the court either in oral remarks on the conclusion of testimony or in the order emanating from that hearing.

In her affidavit opposing Robert's request for better summer and holiday visitation rights, Martha was quick to assure the court that 'the additional time Kari has spent at home since December 10, 1974, has helped eliminate the confusion as to who are authority figures in her life.' Kari's supposed 'guilt' feelings and her supposed 'bizarre' behavior after visits with her father were by Martha attributed to the very fact that there were such visits, and also to Robert's supposed indiscreet discussion of parental conflicts-but never as to religious indoctrination on his part. In their pleadings, neither party made any issue regarding the other's role in Kari's upbringing, religious, as to Robert, or nonreligious, as to Martha.

At the July, 1975, hearing virtually all testimony on the topic of religion was elicited by the court, and this only after the court overruled an objection by Robert's consel when Martha's counsel touched upon it in examining her. As between the parties, the testimony showed that there had been only one communication on the subject. Thereafter, according to Robert's uncontradicted testimony, 'she (Martha) has not made any other effort to interfere with my relationship with my child as far as religion goes.'

Early in this hearing, the court announced:

'So that I don't forget what * I am going to do in this final order, I am going to order you now to refrain from that kind of religious training of the child when * * * she is with you.'

Robert immediately inquired, 'Could you be explicit on that?' and the court replied, 'I will be.' However, during concluding remarks, the court said only: 'You're going to have to cool it a bit about religion when she is with you . . .. I can't be more specific than that.'

Various recommendations regarding religious training were then made to both parents, but the court remarked, 'that is not an order. It is just a recommendation to you.' And the court explicitly stated:

'I can't tell you not to take her to church . . .. I don't feel it would be right to order you not to go to church when she is in your home.'

The bench expressions of the trial court were proper and wholly in accord with the salutary general rule applicable to this type of situation, which we observe to have been well stated by the Washington Supreme Court as follows:

'Thus the rule appears to be well established that the court should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child. . . . Where the trial court does not follow the generally established rule of noninterference in religious matters in child custody cases without an affirmative showing of compelling reasons for such action, we are of the opinion that this is tantamount to a manifest abuse of discretion.' Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133, 1135 (1971).

Here, there had been no such 'affirmative showing that the conflicting religious beliefs affect the general welfare of the child.' Indeed, the court's sole relevant finding of fact was that the child exhibited 'strange,' 'unusual' and 'aggressive behavior' after visits with her father. No finding was made that such behavior was in any way caused by the religious differences of the parents.

Nor would this record support a finding of any 'compelling reasons' to justify an exception to the general rule of noninterference. Such reasons typically are found only in situations where 'there is a serious danger to the life or health of a child as a result of the religious views of a parent.' Stapley v. Stapley, 15 Ariz.App. 64, 485 P.2d 1181, 1187 (1971).

Had the trial court not delegated his factfinding processes to counsel, it is doubted that the order under challenge and necessitating this appeal would have been entered. Clearly the trial court, in his bench remarks, expressed a different view after first stating such an order would be entered.

Some trial judges make their own findings and conclusions, but others delegate that duty. We call attention of bench and bar alike to a statement we recently made:

'IRCP 52(a) requires the judge in all actions tried upon the facts without a jurty to 'find the facts specially and state separately (his) conclusions of law thereon and direct the entry of the appropriate judgment'.' In re Estate of Stibor, 96 Idaho 162, 163, 525 P.2d 357, 358 (1974).

Therein we quoted approvingly from the Supreme Court of New...