HOFFMAN (CRAIG) VS. GEORGE (SARAH ELIZABETH)Annotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PATRICIA WALKER FITZGERALD, JUDGE
ACTION NO. 05-CI-503735
SARAH ELIZABETH GEORGE
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BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY, SENIOR
HENRY, SENIOR JUDGE: Craig Hoffman appeals from orders of the Jefferson
Circuit Court which directed that his daughter, Lily,2 would attend kindergarten at
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
The child’s name is spelled “Lily” in the appellate briefs and “Lilly” in the trial court’s orders;
we have employed the spelling used by the parties.
a parochial school preferred by her mother, Sarah Elizabeth George. Hoffman
argues that the decision violates his constitutional rights. We affirm.
Craig Hoffman and Sarah Elizabeth George are the parents of
Elizabeth Paige “Lily” Hoffman, who was born on September 4, 2002. Hoffman
and George dated for several years before Lily’s birth, but they never married nor
did they ever live together. They arrived at a joint custody arrangement whereby
Lily resides for equal amounts of time with each parent.3 Lily attended Plainview
preschool with both parents’ approval until she approached kindergarten age in
2006. At that point, Hoffman and George could not agree on an elementary school
for Lily. Hoffman, who was raised as an Anglican and has attended a Lutheran
church for over fifteen years, preferred St. Matthew’s Elementary, a public school.
George, who is a lifelong Roman Catholic, favored Holy Spirit Parish School, a
Roman Catholic parochial school.
A trial on this matter was held before the family court on June 1,
2007. The trial court heard testimony from the parents and also from Hoffman’s
expert witness, Debbie Montgomery. Montgomery, who has served as a special
education teacher, a high school counselor and a court liaison with the Jefferson
County Public School system, testified as to the excellence of the academic
programs at St. Matthew’s Elementary, its welcoming atmosphere and its diverse
student population. Father Frederick W. Klotter, the pastor of St. Martin of Tours
Lily resides with Hoffman on Mondays and Tuesdays, with George on Wednesdays and
Thursdays, and alternates between parents on Fridays and weekends.
Catholic Church in Louisville, and an expert in canon law, testified on George’s
behalf as to the merits of a parochial education.
Following the trial, the family court issued an order containing
extensive findings of fact. We set forth the passages which are particularly
pertinent to this appeal:
Mr. Hoffman has conducted an extensive effort to
locate a school which he believes will provide the best
education for his daughter. During his search he
investigated both public and parochial schools. He did
not express any religious or philosophical opposition to a
parochial school, but wants the best fit for his daughter.
He has selected St. Matthews Elementary School, where
he thinks Lily would receive an excellent education. St.
Matthews Elementary School is a public school which
has received acclaim for its programs, parent
involvement, and student achievement. It offers a wide
variety of educational, sports, and community programs.
In addition to the structure of the program, Mr. Hoffman
feels that St. Matthews offers an excitement and
enthusiasm that he has not seen at other schools.
Ms. George also considered several different
schools and looked at both public and parochial schools.
Ms. George desires for Lily to attend Holy Spirit Parish
School. Ms. George has selected this school on the basis
of two criteria which are important to her: academic
excellence and religion.
Holy Spirit is smaller than St. Matthews
Elementary. While St. Matthews has 550 students in
grades kindergarten-fifth, with four kindergarten classes,
Holy Spirit has 409 students in grades kindergarteneighth and has two kindergarten classes. Ms. George
finds the size and atmosphere at Holy Spirit to be warmer
and more nurturing and believes that this environment
would better suit Lily, who [sic] she described as shy.
Holy Spirit also has received national acclaim for its
programs and standardized tests show that its students
excel academically. Holy Spirit also has demonstrated
strong parent involvement and community programs.
Finally, it is extremely important to Ms. George that her
daughter be raised in a Catholic school. She considers
her Catholic faith to be an essential element of her being
and wants her daughter to attend parochial school as did
she and other members of her family.
The trial court noted that both schools are convenient to the parents’ homes and
that George had agreed to assume the cost of the parochial education. In
conclusion, it stated that
Mr. Hoffman’s attorney has argued that this case is not
about religion, it is about education, and he is correct.
However, the Court has been presented with two highly
appropriate schools for this child where neither is
identifiably superior to the other. The only other factor
that has been presented to the court is Ms. George’s
strong desire to have her child attend a parochial school,
an option that does not appear in and of itself to be
objectionable to Mr. Hoffman. As there is no other
factor which directs the Court in its selection of schools,
given Ms. George’s very strong preference and family
tradition of attending Catholic schools, the Court will
direct that Lily be enrolled in Holy Spirit Parish School[.]
Hoffman filed a motion to alter, amend or vacate the judgment or for a
new trial, arguing that the court’s decision violated his constitutional rights. The
trial court denied the motion, noting that while
Mr. Hoffman now says that he has a strong objection to
having his daughter attend a Catholic school, Mr.
Hoffman did not make such an objection known to the
Court at the time of trial and in fact the unrefuted
testimony was that Mr. Hoffman had seriously
considered another Catholic school for the child, to the
point that he had the child tested for purposes of
determining eligibility for enrollment.
This appeal followed.
In making a significant decision regarding a child’s upbringing, such
as determining where it will attend school, the trial court is directed to consider the
best interests of the child:
If . . . the parties to a joint custody agreement are
unable to agree on a major issue concerning their child's
upbringing, the trial court, with its continuing jurisdiction
over custody matters, must conduct a hearing to evaluate
the circumstances and resolve the issue according to the
child's best interest. Once the parents have abdicated
their role as custodians to the trial court, its decision is
binding on the parties until it is shown that the decision is
detrimental to the child physically or emotionally, or is
no longer in his best interest.
Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky. App. 1984).
The appellate standard of review of such a decision
includes a determination of whether the factual findings
of the family court are clearly erroneous. A finding of
fact is clearly erroneous if it is not supported by
substantial evidence, which is evidence sufficient to
induce conviction in the mind of a reasonable person.
Since the family court is in the best position to evaluate
the testimony and to weight the evidence, an appellate
court should not substitute its own opinion for that of the
family court. If the findings of fact are supported by
substantial evidence and if the correct law is applied, a
family court’s ultimate decision regarding custody will
not be disturbed, absent an abuse of discretion. Abuse of
discretion implies that the family court’s decision is
unreasonable or unfair.
B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005) (citations omitted).
Hoffman argues that the trial court’s ruling favors a religious
institution, namely Holy Spirit Parish School, and thereby violates his rights under
the First Amendment of the United States Constitution and Article Five of the
Kentucky Constitution, which provides in part that “No preference shall ever be
given by law to any religious sect, society or denomination . . . nor shall any man
be compelled to send his child to any school to which he may be conscientiously
However, as the trial court noted in its order denying Hoffman’s
motion to alter, amend or vacate the judgment, Hoffman never raised these
constitutional objections at the trial. This is confirmed by our review of the trial
record, wherein Hoffman’s own testimony refutes his contentions on appeal. The
appellant “will not be permitted to feed one can of worms to the trial judge and
another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222
(Ky. 1976). For example, when describing his search for an appropriate school for
his daughter, Hoffman openly testified that he looked at ten schools, “parochial,
private and public.” Furthermore, he never disputed George’s testimony that he
had seriously considered St. Albert the Great, a parochial school located near his
home, as a potential school for Lily, and that he had gone as far as having Lily
tested for admission. Evidence was also presented that Lily had been baptized as a
Roman Catholic and that Hoffman had attended the baptismal ceremony, at which
he had agreed that the child would be raised in that religion. Although Hoffman
testified that he felt the baptism was a generic “Christian” ceremony and that he
had never agreed to raise Lily as a Roman Catholic, he never expressed a
conscientious objection to such an upbringing. Similarly, when Hoffman testified
that Lily attends the Lutheran church with him on alternate Sundays and that she is
familiar with prayers and Bible stories, his stated goal was to show that Lily gets
“enough religion at home” and was not in need of further religious education at
school, not to argue that his constitutional rights would be infringed upon if she
attended a Roman Catholic elementary school.
The trial court made extensive findings of fact, all of which are
supported by substantial evidence. It did not abuse its discretion in deciding that
Lily should attend Holy Spirit, because that decision is neither unreasonable nor
unfair in light of the evidence presented at trial.
For the foregoing reasons, the orders of the Jefferson Circuit Court are
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harold L. Storment
B. Mark Mulloy