Kulstad v. Maniaci
| Decision Date | 30 November 2010 |
| Docket Number | No. DA 10-0205.,DA 10-0205. |
| Citation | 358 Mont. 230,2010 MT 248,244 P.3d 722 |
| Parties | Michelle KULSTAD, Plaintiff and Appellee, v. Barbara L. MANIACI, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Linda Osorio St. Peter, St. Peter Law Offices, P.C.; Missoula, Montana, Austin Nimocks, Alliance Defense Fund; Scottsdale, Arizona.
For Appellee: Michael G. Alterowitz, Alterowitz Law Offices, P.C.; Missoula, Montana, Elizabeth L. Griffing, ACLU of Montana Foundation; Missoula, Montana, Susan G. Ridgeway, Attorney at Law; Missoula, Montana.
¶ 1 Barbara Maniaci appeals from the order of the District Court adopting a Final Parenting Plan, which granted sole custodyoF L.m. aND A.M., minor children, tO appelleE michellE kulstad. she also challenges the imposition of a protective order restricting the parties' access to the children's therapy notes and products. We affirm theFinal Parenting Plan and vacate the District Court's determination that § 40-4-225, MCA, is unconstitutional.
¶ 2 We restate the issues on appeal as follows:
¶ 3 1. Did the District Court err by adopting a Final Parenting Plan granting residential custody of the children to Kulstad?
¶ 4 2. Did the District Court rely on evidence from the Child and Family Services Division (CFSD), and deny Maniaci a meaningful opportunity to confront and cross-examine expert testimony, in violation of Maniaci's due process rights?
¶ 5 3. Did the District Court err by denying Maniaci access to the children's therapy records based on the constitutional right of privacy?
¶ 7 This custody matter has been before the Court on several prior occasions. The decision in Kulstad v. Maniaci, 2009 MT 326, 352 Mont. 513, 220 P.3d 595 ( Kulstad I ), discusses in detail the parties' relationship to each other and to the children. Here, we summarize those facts and provide additional facts necessary for this appeal.
¶ 8 Maniaci and Kulstad met in late 1995 and were domestic partners from 1996 until 2007. Maniaci and Kulstad brought L.M. into their household in 2001 and A.M. from Guatemala in 2004. As same-sex partners, the parties were advised that only one of them would be legally eligible to adopt the children. They agreed that Maniaci would be the adoptive parent, though both of them would function as co-parents.
¶ 9 Kulstad filed a petition in January 2007 to dissolve the parties' relationship and to obtain a parental interest in the children, which was resisted by Maniaci. After a hearing, the District Court issued a pre-trial ruling which concluded that Kulstad had established a parent-child relationship with the children and adopted an interim parenting plan designating Maniaci as the residential custodial parent and granting Kulstad visitation with the children. The court also entered other orders in preparation for trial. Cindy Miller, Ph.D. (Dr. Miller), was appointed to conduct a parenting plan evaluation. Dr. Miller was also authorized by the court to appoint a guardian ad litem (GAL) and a therapist for the children. Jo Antonioli, attorney, was subsequently appointed as GAL, and Paul Silverman, Ph.D. (Dr. Silverman), was designated as the children's therapist. According to Dr. Silverman and Dr. Miller, the children suffer from significantattachment disorders and have difficulty regulating themselves emotionally. The Court also ordered the parties to participate in the Positive Alternatives for Children Team (PACT) Program, which is a group of community professionals who work in difficult custody cases to reduce the adversarial impact of the proceeding on children and improve use of financial resources. The PACT Program consisted of Dr. Miller, Dr. Silverman, and Antonioli.
¶ 10 After a bench trial in May 2008, the District Court awarded Kulstad a parental interest in the children. The court also issued an interim parenting schedule and directed the GAL to submit formal recommendations for a final parenting schedule after one year, at which time the court indicated it would issue a ruling on a Final Parenting Plan. Maniaci appealed and, in October 2009, this Court affirmed the District Court in Kulstad I.
¶ 11 On or around November 27, 2009, Maniaci traveled to Tennessee on apparent family matters, telling the children she would return on December 21, 2009. Maniaci was then the primary custodian, and the parties agreed that Kulstad would take care of the children for the three weeks Maniaci would be in Tennessee. On December 7, 2009, Maniaci's attorney wrote to Antonioli, informing her that Maniaci was relocating to Tennessee. As of March 2010, Maniaci had neither returned to Montana nor seen L.M.or A.M. since November of 2009. The resulting de facto parenting arrangement has been that the children have resided full-time with Kulstad.
¶ 12 Antonioli, as GAL, requested that the parties submit their parenting plan proposals to her by the end of November 2009. Maniaci submitted an initial proposal on November 30, 2009, and then submitted a revised proposal in December reflecting her move to Tennessee. Maniaci proposed that the children reside with her in Tennessee, with Kulstad having visitation with the children during the summer and on various holidays. In response to questions from Antonioli, Maniaci filed a second revised proposal which clarified Kulstad's parenting time in the summer and allowed for Kulstad to have additional visitation with the children. Kulstad proposed that the children reside with her during the school year, with Maniaci parenting the children in Montana for one-half of the summer and Christmas break, along with certain school vacations. Kulstad's proposal also allowed Maniaci to visit the children in Montana for up to one week per month.
¶ 13 The PACT Program submitted a final report in January 2010 recommending that Kulstad have residential custody of the childrenand Maniaci having parenting time which would be exercised in Montana. If Maniaci moved back to Montana, the schedule could be modified to a 50/50 shared parenting arrangement if found to be in the best interests of the children. If Maniaci remained in Tennessee, consideration could be given, after two years, to the children traveling to Tennessee for Maniaci's parenting time if "circumstances have changed such that [Maniaci] is no longer attempting to indoctrinate the children" and was in the children's best interests. The GAL's recommended Final Parenting Plan advised that Kulstad have residential custody of the children and that Maniaci have parenting time in Montana up to one week each month and time over spring break and Christmas.
¶ 14 The District Court conducted a hearing on the Final Parenting Plan. Maniaci did not appear or testify. Testimony was received from Kulstad, Antonioli, Dr. Miller, Dr. Silverman, Maniaci's therapist Jennifer Walrod, CFSD supervisor Nicole Grossberg, CFSD social worker Cherrill Rolfe, among others. On April 1, 2010, the District Court entered its Findings of Fact and Conclusions of Law and Order on the Final Parenting Plan which granted Kulstad sole custody of the children, with supervised visitation for Maniaci in Montana, until such time as Maniaci complies with the PACT report.
¶ 16 Following the District Court's award of parenting rights to Kulstad in September 2008, Antonioli sought a Temporary Protective Order (TPO) seeking to restrict the parties' access to the therapy notes and products, including video recordings, of the children's therapist, Dr. Silverman. Antonioli's request was precipitated by concerns expressed by Dr. Silverman and Dr. Miller that the therapy notes were being utilized to further the adversarial goals of the attorneys and provision of them was contrary to the children's best interest. Although Maniaci had not been given an opportunity to respond to Antonioli's motion, the District Court granted the TPO.
¶ 17 In March 2009, Maniaci filed a Petition for a Writ of Supervisory Control with this Court requesting that the TPO be vacated. We ordered briefing on whether a child's therapist can withhold therapy notes or videos from a parent based on the therapist's concern for the best interest of the child and the counseling relationship. We thereafter granted Maniaci's petition in part and remanded the matter, directing the District Court to provide Maniaci an opportunity to address Antonioli's motion for a TPO. The District Court conducted a hearing in which Dr. Silverman, Dr. Miller, Dr. Bach, and Maniacitestified. On September 29, 2009, the District Court ordered that the protective order would remain in place. Reasoning that L.M. and A.M.'s privacy rights superseded the parties' requests for the records, the court concluded that § 40-4-225, MCA, was unconstitutional.
¶ 18 Maniaci appeals from these orders.
¶ 19 Maniaci argues, pursuant toIn re Marriage of Guffin, 2009 MT 169, 350 Mont. 489, 209 P.3d 225, that the Final Parenting Plan violated her constitutional right to travel. Kulstad responds that this issue was waived—that no evidence or arguments were presented in District Court to support Maniaci's constitutional right to travel claim. Maniaci replies that she preserved this constitutional issue because it was "a focal point of the trial" and "inherently incorporated" into the District Court parenting guidelines.
¶ 20 Generally, "[a] constitutional issue is waived" if not presented to the district court. In re Custody of Arneson-Nelson, 2001 MT 242, ¶ 37, 307 Mont. 60, 36 P.3d 874. The rationale behind this rule is to promote judicial economy and to " 'bring[ ] alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.' " State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (quoting City of Missoula v. Asbury, 265 Mont. 14, 20, 873 P.2d 936,...
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