Kendall v. Kendall

• Decision Date: 09 December 1997
• Citation: 426 Mass. 238,687 N.E.2d 1228
• Parties: , 66 USLW 3812 Barbara Zeitler KENDALL, v. Jeffrey P. KENDALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1228

687 N.E.2d 1228

426 Mass. 238, 66 USLW 3812

Barbara Zeitler KENDALL, v. Jeffrey P. KENDALL.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Oct. 7, 1997.

Decided Dec. 9, 1997.

Michael S. Greco, Boston (Melissa J. Solomon, with him) for Jeffrey P. Kendall.

David E. Cherny, Boston (Jacob M. Atwood, Plymouth, with him) for Barbara Zeitler Kendall.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

LYNCH, Justice.

This appeal arises out of a judgment of divorce nisi issued on August 20, 1996. ¹ Jeffrey P. Kendall, the defendant, appeals from provisions of the divorce judgment and a temporary order issued after Barbara Zeitler Kendall, the plaintiff, filed a complaint against him in the Probate Court for contempt of the divorce judgment. ² The plaintiff also filed a cross appeal, requesting an award of attorney's fees and reversal of the joint custody order and disposition of the marital home. We granted the defendant's application for direct appellate review.

1. Factual background. We summarize the facts found by the judge. The parties professed to hold different religious beliefs when they were married in 1988, the plaintiff being Jewish, and the defendant, Catholic. ³ The parties' fundamental religious differences would be unremarkable but for their controversial effect on their three minor children ⁴ caught in the crossfire generated by their parents. Before the parties were married, they discussed the religious upbringing of any children, and agreed that children would be raised in the Jewish faith. ⁵

In 1991, the defendant became a member of the Boston Church of Christ, a fundamentalist Christian faith. The defendant believes in Jesus Christ and that those who do not accept the Boston Church of Christ faith are "damned to go to hell" where there will be "weeping and gnashing of teeth." The defendant testified that he would like his children to accept Jesus Christ and that he "will never stop trying to save his children."

The parties' divergent views polarized in 1994 when the plaintiff adopted Orthodox Judaism. ⁶ Ariel also began studying and adhering to principles of Orthodox Judaism. Soon after the parties' beliefs drifted to opposite doctrinal extremes, the plaintiff filed for divorce in November, 1994, based on an irretrievable breakdown of the marriage, pursuant to G.L. c. 208, § 1B.

2. The court proceedings. At the outset the plaintiff sought to limit the children's exposure to the defendant's religion, and the defendant objected to any limitation on his ability to share his religious beliefs with the children. ⁷ On October 18, 1995, the judge granted the plaintiff's request for the appointment of a guardian ad litem (GAL) to "address the inter-religious conflict between the parties in particular." ⁸

In Felton v. Felton, 383 Mass. 232, 233, 418 N.E.2d 606 (1981), this court addressed the question of accommodating diverse religious practices of parents, living apart, in the upbringing of minor children. The court held that the overriding goal in any such inquiry is to serve the best interests of the children even where "the attainment of that purpose ... involve[s] some limitation of the liberties of one or other of the parents." Id. at 233, 418 N.E.2d 606.

The judge found it substantially damaging to the children to leave each parent free to expose the children, as he or she wishes, to his or her religion. The resulting judgment of divorce contained the following paragraphs: ⁹

"5. RESTRICTIONS UPON RELIGIOUS EXPOSURE: Each parent shall be entitled to share his/her religious beliefs with the children with restrictions as follows: neither may indoctrinate the children in a manner which substantially promotes their ... alienation from either parent or their rejection of either parent. The [defendant] shall not take the children to his church (whether to church services or Sunday School or church educational programs); nor engage them in prayer or bible study if it promotes rejection rather than acceptance, of their mother or their own Jewish self-identity. The [defendant] shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves. Thus, for example, [the defendant] may have pictures of Jesus Christ hanging on the walls of his residence, and that will not serve as any basis for restricting his visitation with his children. But, [the defendant] may not take the children to religious services where they receive the message that adults or children who do not accept Jesus Christ as their lord and savior are destined to burn in hell. By way of further example, [the defendant] may not shave off [Ariel's] payes. This provision shall not be construed so as to prevent [the defendant] from having the children with him at events involving family traditions at Christmas and Easter.

"In the event that there is a disagreement between the parents as to whether one or more of the children could be exposed to the religious belief(s) of [the defendant] without substantial negative impact upon their emotional health, the parents shall engage the services of Michael Goldberg, Ph.D., to act as G.A.L./ investigator/evaluator on such issues and disputes. The fee of Dr. Goldberg shall be shared equally by the parties. In the event that Dr. Goldberg is unable to serve in this capacity, then the parties shall agree upon an alternate child psychologist, or an alternate shall be selected by the Court....

"6. EXPLANATION TO CHILDREN. Neither party shall initially discuss with the children the terms and conditions of this Judgment. Within two (2) days of the date of receipt of this Judgment, the Plaintiff shall contact the Court-appointed Guardian Ad Litem, Dr. Michael Goldberg, to arrange for a meeting with the children. Dr. Goldberg shall explain to the children, in a developmentally appropriate manner, the Court's decision, with the goal being to help the children understand that they are being raised in the way they are because the Court believes that it is in their best interest. It is intended by the Court that this intervention may help the children avoid blaming themselves."

The defendant argues in this appeal that the judge's findings did not demonstrate "substantial harm" to the children so as to warrant the limitations imposed on his liberty interest in educating his children in the tenets of his religion. He challenges both the judge's factual findings of harm and the legal conclusions based on that evidence. ¹⁰

3. Standard of review. We scrutinize without deference the legal standard which the judge applied to the facts to ensure the ultimate findings and conclusions are consistent with the law. Williams v. Resolution GGF OY, 417 Mass. 377, 382, 630 N.E.2d 581 (1994), citing Marlow v. New Bedford, 369 Mass. 501, 508, 340 N.E.2d 494 (1976). The plaintiff was required to demonstrate "in detail" that exposure to the defendant's religion caused the children "substantial injury, physical or emotional, and [would] have a like harmful tendency for the future." Felton v. Felton, supra at 234, 235, 418 N.E.2d 606. We uphold the judge's factual findings unless they are clearly erroneous ¹¹; we review her legal conclusions to ensure they are based on correct legal standards. Williams v. Resolution GGF OY, supra at 382 n. 6, 630 N.E.2d 581.

4. Analysis. "[P]arents together have freedom of religious expression and practice which enters into their liberty to manage the familial relationships." Felton v. Felton, supra at 233, 418 N.E.2d 606, citing Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Those individual liberties may be restricted where there is a compelling interest. Felton v. Felton, supra. A parent's right to practice religion may be restricted only where limited exposure to that parent's beliefs is necessary to further a child's best interests. Felton v. Felton, supra. To do so, there must be an affirmative showing of harm caused by exposure to the conflicting religious teachings. Id. at 233-234, 418 N.E.2d 606.

The determinative issue is whether the harm found to exist in this case to be so substantial so as to warrant a limitation on the defendant's religious freedom. In Felton v. Felton, this court suggested that a "likely source[ ]" of proof of substantial harm "by implication" could be derived from testimony as to the child's general demeanor, attitude, school work, appetite, health or outlook. Id. at 242, 418 N.E.2d 606, citing Pope v. Pope, 267 S.W.2d 340, 343 (Mo.Ct.App.1954). The court also opined that the "wholly uncorroborated testimony" of a parent was insufficient to demonstrate harm. Felton v. Felton, supra. By implication, the court suggested that a plaintiff should consult "church, school, medical or psychiatric authorities" to support a charge that a child has been harmed by exposure to the parent's religious beliefs. Id. Moreover, the court specifically recommended the appointment of "a qualified investigator whether called a guardian or some other title) who would look into the facts, render a report, and be subject to examination by the parties." Id.

Other States have struggled to define what constitutes substantial harm. ¹² Very few have actually ruled that substantial harm had been demonstrated. ¹³ , ¹⁴

We adhere to the line of cases requiring clear evidence of substantial harm. ¹⁵ See note 12, supra. Application of the strict requirements in those cases comports with the protections of religious freedoms historically preserved under the Massachusetts Constitution. See Society of Jesus of New England v. Boston Landmarks Comm'n, 409 Mass. 38, 564 N.E.2d 571 (1990), S.C., 411 Mass. 754, 585 N.E.2d 326 (1992) (citing authorities documenting historical protection of religious freedoms).

The harm found to exist in this case presents more than the generalized fears criticized in Felton v. Felton,...