SPRINKLE (THOMAS ANDREW) VS. SMITH (JESSICA APRIL)Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
THOMAS ANDREW SPRINKLE
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 04-CI-00157
JESSICA APRIL SMITH
VACATING AND REMANDING
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BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
KELLER, JUDGE: The Domestic Relations Commissioner (the DRC) for the
Powell Circuit Court recommended that the parties’ continue their joint custody
arrangement for their two children. However, because the parties could not agree
regarding the children’s religious practices, the DRC recommended giving Jessica
April Smith (Smith) the “sole decision making authority in the area of religion.”
Senior Judge Daniel T. Guidugli 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 DRC also recommended that the parties’ visitation schedule be amended to
conform to the standard visitation schedule. Sprinkle objected to the findings of
the DRC, but the Powell Circuit Court confirmed and adopted the DRC’s
recommendations. It is from the court’s order doing so that Sprinkle now appeals.
In his appeal, Sprinkle argues that the court erred in adopting the DRC’s
recommendation that Smith be given final authority to determine the children’s
religion. Sprinkle also argues that the standard visitation schedule has the effect of
forcing him to choose between spending time with his children or practicing his
religion. For the following reasons, we vacate and remand.
Smith and Sprinkle were married on May 29, 1994, and their marriage
was dissolved on August 18, 2004. Two children were born of the marriage, Dane
Thomas Sprinkle (Dane), date of birth January 22, 1999, and Savannah Grace
Sprinkle (Savannah), date of birth October 26, 2000. As part of the dissolution,
Smith and Sprinkle agreed to joint custody of the children, with Smith as the
“primary care provider.” The agreement also set forth a visitation schedule, but it
did not address what religious training, if any, the children would receive, or who
would have any final say regarding religion if a dispute arose.
On August 29, 2006, Smith filed motions seeking sole custody and a
change in the visitation schedule. In support of her motion for sole custody, Smith
argued that Sprinkle is a member of the United Church of God and that “[t]his type
of religion is detrimental to our children and is not in their best interests.” In
support of her motion to change visitation, Smith noted that the parties had, by oral
agreement, deviated from their prior agreed to visitation schedule. However, from
Smith’s perspective, that modified schedule was no longer viable.
On September 1, 2006, Sprinkle filed a motion to modify custody,
seeking relief on a number of issues. We will only outline and address those
pertinent to this appeal. In his motion, Sprinkle noted that, since the dissolution of
their marriage, the parties had varied from the initial visitation schedule, with the
result being that he spent more time with the children than originally allotted.
Sprinkle sought additional time or, in the alternative, an order formalizing the
schedule the parties had informally followed. Sprinkle also asked that the custody
order be modified so that neither party was designated as “primary custodian.”
The court referred these matters to the DRC, who conducted a hearing
on June 26, 2007. At the hearing, Smith testified that she wanted sole custody
primarily because of Sprinkle’s affiliation with the Living Church of God (the
LCG), “a splinter group” of the World Wide Church of God. Smith testified that
she had been raised in the World Wide Church of God, an organization she
characterized as a “cult.” Smith testified that members of the LCG believe in and
follow the Christian Bible; however, they do not celebrate traditional Christian
holidays, such as Christmas and Easter. Instead, they celebrate holidays that they
believe are more in keeping with a literal interpretation of the Bible. Furthermore,
members of the LGC do not eat certain foods, such as pork and shellfish, they
celebrate the Sabbath from dusk on Friday to dusk on Saturday, and they are
discouraged from associating with people who are not members of the LGC.
During the Sabbath celebration, members of the LGC do not watch television, are
only permitted to read the Bible or materials promulgated by the LGC, and may
not participate in outside activities. As a child in school, Smith did not participate
in Christmas, Halloween, or Easter celebrations and felt like an “outsider,” and she
did not want her children to experience that isolation.
Additionally, Smith testified that, as the children become more active
in school, the LGC Sabbath will interfere with their extracurricular activities. She
noted that she had enrolled Dane in cub scouts. However, she had to withdraw him
because, during his visitation time, Sprinkle would not take Dane to any activities
on Friday night or Saturday morning. Although Savannah wanted to enroll in
cheerleading, Smith did not enroll her because she feared that Sprinkle would not
Smith also testified that the children seemed confused by the
differences in her beliefs and their father’s, and they had questioned her about
those differences. Dane has stated that he would celebrate Christmas with his
mother while he was at her house; however, he would stop doing so when be
“grew up.” Savannah refuses to eat pork and shellfish, which Smith says puts a
strain on her current family.
Finally, Smith testified that, because the parties live approximately
forty minutes apart, the current visitation schedule would interfere with the
children’s school work.
Smith’s current husband testified that Dane cried one time after
returning from a visit with his father because he was confused.
Lambert Greer, a minister with the LCG, testified regarding some of
the tenets of his faith. He also testified that the church is not a cult.
Sprinkle testified that he has never openly spoken against Smith’s
religious beliefs in the presence of the children. While he does have the children
observe the Sabbath when they are with him, he has not tried to impose that
practice on Smith. Furthermore, he has not objected to the children having
activities on Friday night or Saturday morning. To the contrary, he testified that he
would permit Smith to take the children to any such activities as long as she
returned them when they were finished.
Although Sprinkle has told the children that certain foods such as pork
and shellfish are not good for them, he has not told them to refrain from eating
shellfish or pork when they are with Smith. He does not believe that the children
are confused and, although Smith testified that she believes otherwise, he denied
that he asked the children to question Smith about her beliefs. Sprinkle views the
children’s questions about the differences between his beliefs and Smith’s as
Following the hearing, the parties submitted the transcript of the
deposition of Gregory D. May, a child/adolescent/family therapist. Dr. May, who
was not court-appointed and appears to have been retained by Sprinkle, performed
an assessment of Sprinkle, his current wife, and the children. As a result of his
assessment, Dr. May concluded that the children were well-adjusted and that they
acclimated well to both of their parents’ households. However, they did not want
their parents to argue about visitation and they expressed a desire that visitation be
fair. As to the question of religion, Dr. May suggested both parents simply be
open and honest with the children and that the children be permitted to participate
in both religions.
Based on that evidence, the DRC entered the following
11. That the Petitioner and Respondent shall
continue to share joint custody of the minor children of
the parties, with the Petitioner having primary residential
custody, however, the Petitioner shall have sole decision
making authority in the area of religion. Joint custody
contemplates the parents working and deciding together
on major aspects of the children’s lives: religion,
education, medical treatment and the like. It is obvious
the Petitioner and Respondent cannot agree on the matter
of religion and therefore, something needs to be changed.
One option would be to make the Petitioner the sole
custodian. However, Fenwick v. Fenwick, 114 S.W.3d
767, [sic] (Ky. 2003) states that “equal decision-making
power is not required for joint custody, and parties or
trial courts are free to vest greater authority in one parent
even under a joint custody arrangement.” The Court
must first find that the failure to vest greater authority in
one parent would lead to significant impairment in the
child’s emotional development. Id, [sic] at 776.
Religious differences are extremely difficult to
reconcile and are by their very nature confusing to the
children. While exposure to different faiths can be
educational for the children, the potential for emotional
harm is significant in this case where the differences are
That is not to say that the Respondent is forbidden
from practicing his faith with his children; however, the
decision of the Petitioner in regard to religion shall be
final. If there are activities that the Petitioner wants the
children to participate in and the Respondent objects on
religious grounds, the Petitioner may take the
Respondent’s objections into account, but she shall make
the final decision on participation. If the children are
visiting with the Respondent, the Respondent is free to
prepare foods in keeping with his religious practices and
the children can certainly eat what is served when they
are with the Respondent.
Decisions on participation in religious activities
are to be made by the Petitioner. The Respondent shall
respect the decision of the Petitioner regarding faith and
not attempt to interfere with this decision.
12. It is very apparent that both parents love their
children very much. While the desire to spend equal time
with the children is understandable, an equal timesharing arrangement is impractical [because of] school
schedules and the distance between the parties. The
Standard Visitation Schedule for the 39th Judicial Circuit
is more appropriate and the Respondent shall have
visitation accordingly. Both parties should be mindful
that the standard schedule emphasizes that the parties
should try to reach agreement on visitation, but if they
cannot, than [sic] the specific provisions should be
followed. (Emphasis in original.)
Sprinkle timely filed exceptions to the DRC’s recommendations;
however, the circuit court confirmed and adopted those recommendations. It is
from this order that Sprinkle now appeals.
We must vacate the trial court’s order both as to its designation of
Smith as the sole arbiter of religion and as to visitation. As to the first, the order is
inconsistent on its face. On the one hand, the trial court gave Smith “the sole
decision making authority in the area of religion” and stated that all decisions by
Smith “in regard to religion shall be final.” Furthermore, the trial court stated that
“[d]ecisions on participation in religious activities are to be made by [Smith]” and
ordered Sprinkle to “respect the decisions of [Smith]” and not “to interfere with
this decision.” On the other hand, the trial court stated that Sprinkle is not
“forbidden from practicing his faith with his children.” As we read them, these
statements are irreconcilable. If Smith has sole authority to make decisions
regarding what religious services the children may attend, then Sprinkle will, in all
likelihood, be forbidden from practicing his faith with his children. Therefore, we
must vacate the trial court’s order and remand this matter for clarification.
As to the trial court’s order regarding visitation, we find it to be
deficient as well. “We review the trial court’s visitation orders under the abuse of
discretion standard.” Wireman v. Perkins, 229 S.W.3d 919, 920 (Ky. App. 2007).
Under this standard, the trial court’s imposition of the standard visitation is not, in
and of itself, in error. However, taken in conjunction with the trial court’s order
granting Smith the sole decision making authority in the area of religion and this
Court’s holding in Wireman, we hold that the trial court’s decision regarding
visitation is deficient.
In Wireman, the father had sole custody of the couple’s minor child.
The trial court granted the mother “visitation during the school year on every
Wednesday night and every other weekend from Friday afternoon until Monday
morning.” Id. at 920. The father moved the trial court for an order requiring the
mother to take the child to the Fern Creek Christian Church on Sundays during her
visitation time. In support of his motion, the father argued that, as sole custodian,
he had the right to “determine the child’s upbringing, including his . . . religious
training.” KRS 403.330. The trial court denied the father’s motion, and he
On appeal, this Court noted that there was a lack of case law on this
issue in the Commonwealth. In reviewing case law from other jurisdictions, this
Court discovered that:
[m]ost of the courts that have faced similar issues
have ruled that statutes like KRS 403.330 must be
construed in light of the non-custodian's constitutional
rights to express her religion or lack thereof, Wisconsin
v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972) and to be meaningfully involved in the upbringing
of her child. Id.; Troxel v. Granville, 530 U.S. 57, 120
S.Ct. 2054, 147 L.Ed.2d 49 (2000). The non-custodian is
free, these courts have held, to expose the child to the
non-custodian's beliefs, provided that the exposure is not
substantially likely to result in physical or emotional
harm to the child. Chandler v. Bishop, 142 N.H. 404,
702 A.2d 813 (1997); Zummo v. Zummo, 394 Pa.Super.
30, 574 A.2d 1130 (1990); Funk v. Ossman, 150 Ariz.
578, 724 P.2d 1247 (1986). See George L. Blum,
“Religion as Factor in Visitation Cases,” 95 A.L.R.5th
533 (2002); Jennifer Ann Drobac, “For the Sake of the
Children: Court Consideration of Religion in Child
Custody Cases,” 50 Stan. L.Rev. 1609 (1998). Both
parents, in other words, retain rights to convey religious
or other fundamental beliefs to their children.
Wireman, 229 S.W.3d at 921. With regard to the father’s arguments, this Court
went on to state that:
It is true, as Wireman argues, that these potentially
conflicting rights will sometimes require accommodation
and that accommodation could result in the noncustodian being required to transport the child to
religious classes or sacramental preparation chosen by
the custodian. In Zummo v. Zummo, supra, for example,
the court held that a Catholic parent's visitation rights
were not unduly burdened by a requirement that he
accommodate his children's preparation for bar mitzvah
by presenting them at the synagogue for Sunday School
during his visitation. As the Zummo Court noted,
a parent's right to inculcate religious beliefs
in his or her child would not provide a
compelling reason to justify the denial of the
other parent's right to maintain a meaningful
parental relationship with his or her
children. If the court must choose between
meaningful visitation and the full benefits of
a desired program of religious
indoctrination, the religious indoctrination
must yield to the greater interest in
preserving the parent-child relationship.
[Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130,
Wireman, 229 S.W.3d at 921.
This Court agreed with the above cited opinions that the person with
sole custody has “the right to make the major decisions affecting the child's
education and religious training[;]” however, that person does not have the
to interfere permanently or unduly with the noncustodian's visitation. Where, as here, there is no
evidence that the child has been or is substantially likely
to be injured as a result of the non-custodian's practices,
or that indoctrination in the custodian's religion has been
frustrated, the non-custodian is not required to give up
visitation time to accommodate the custodian's chosen
church services. The trial court did not abuse its
discretion by not requiring such accommodation here.
Id. at 922.
As noted by this Court in Wireman, a trial court must consider the
impact any rulings regarding religious practices will have on a parent’s right to
visitation. The trial court herein ordered visitation pursuant to the standard
schedule, which includes weekend visitation. The trial court also granted Smith
the sole decision making authority in the area of religion. Since Sprinkle will have
visitation with the children during his Sabbath, the trial court should have
addressed what, if any, impact the granting of the authority to make decisions
regarding religion to Smith will have on Sprinkle’s right to visitation.
Finally, we note that the trial court found that “exposure to different
faiths can be educational for the children; [however] the potential for emotional
harm is significant in this case where the differences are so vast.” We can find
little, if any, support for this finding by the trial court in the record. Dr. May,
whose qualifications to testify as an expert witness were not challenged by Smith,
testified that the children seemed well-adjusted with their situation. Smith testified
that the LCG does not engage in abusive practices with regard to children.
Minister Greer described a religion that appears to be a mixture of conservative
Judiasm and evangelical Christianity, which may be different from more
mainstream Christian faiths, but does not appear to be vastly different.
The only evidence of any negative impact that Sprinkle’s religious
views might have on the children is from the testimony of Smith and her husband.
Smith testified, based on her experience, that the children might be ostracized as
they grow older because they would not be permitted to partake in various
activities. However, Sprinkle testified that he had no objection to the children’s
participation in such activities. His only concern appeared to be that, if he had to
transport the children to such activities, it would interfere with his ability to
practice his religion.
Smith testified that the children questioned her religious practices and
noted that they might be confused about the differences between her religion and
Sprinkle’s. However, the expert testimony of Dr. May contradicted supposition on
Finally, Smith’s husband testified that, on one occasion, Dane cried
because he was confused about the parties’ religious differences. In adopting the
DRC’s recommendation, the trial court appears to have relied on this confusion as
indicative of a significant potential for emotional harm. The trial court has the
duty to make such findings of fact; however, it must support those findings.
Therefore, on remand, the trial court must, in keeping with Wireman, set forth
specific findings from the record that establish that the children have “been or [are]
substantially likely to be injured as a result of [Sprinkle’s] practices, or that
indoctrination in [Smith’s] religion has been frustrated.” Wireman, 229 S.W.3d at
922. When doing so, the trial court should keep in mind that any custody/visitation
arrangement must serve the best interests of the children involved, but should not
unduly interfere with either parties’ right to practice his or her religion. See KRS
403.340 and Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. App. 2004). The trial
court could, perhaps, accomplish this by arranging for visitation that does not
include either parties’ Sabbath. However, we leave that determination to the trial
court’s sound discretion.
For the reasons set forth above, the trial court’s order is vacated and
this matter is remanded to the trial court for additional proceedings consistent with
this opinion and this Court’s holding in Wireman v. Perkins, 229 S.W.3d 919 (Ky.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charla R. Cousins
Mt. Sterling, Kentucky