No. 04-560

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 176N

BRIAN 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
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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 wellpled 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