YOUNG (JENNIFER) VS. HOLMES (BRENDEN)
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001365-MR
JENNIFER YOUNG
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 03-J-505137
BRENDEN HOLMES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, THOMPSON, AND WINE, JUDGES.
CAPERTON, JUDGE: Jennifer Young appeals from an order of the Jefferson
Family Court whereby the court ordered the parties’ minor child, Z.H. (hereinafter,
the child) to attend St. Athanasius School in Louisville, KY for the academic year
of 2008-09. Young asserts that the court’s order violates her First Amendment
right to religious freedom and that the court could only appropriately order the
child to attend St. Athanasius by finding that he had special needs that would
require him to attend private school. We disagree and accordingly affirm the
Jefferson Family Court.
At the time of the court order of June 18, 2008, the child was five
years old and the parties, who shared joint custody, could not reach an agreement
as to where the child should attend kindergarten in the fall.1 The court held a
hearing on the matter on May 23, 2008.
Brenden Holmes testified that he desired his son to attend St.
Athanasius in Louisville while Young desired the child to attend Silver Street
Elementary school in New Albany, Indiana. Holmes lives with his parents in
Louisville, regularly attends St. Athanasius Church with the child, and had the
child baptized there without permission from Young. All of the child’s extended
family including the maternal grandparents resides in Louisville. Young works in
Louisville close to St. Athanasius. She is hoping for a promotion but has no idea
where her new position may be located or when her promotion might occur.
Holmes testified that he would assume all financial responsibility for
the child’s education costs if the child attends St. Athanasius as this would be the
best choice for the child because of the school’s test scores and the variety of
extracurricular activities for the child as he gets older. Holmes also testified that
St. Athanasius offered an on-site after-school program to help students with their
homework. Holmes next testified that when he visited Silver Street Elementary
school in New Albany, Indiana, he learned that the school’s test scores were lower
1
The parties could not reach an agreement on this issue even after mediation.
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and that it did not offer an on-site after-school program. Holmes did not look at
any public schools in Kentucky but did look at the schools Young preferred.
Holmes’ testimony was wholly based on his past experience; he felt that the
education and over-all experience provided by private schools in Kentucky was
superior to public schools.
Young testified that she had moved to New Albany, Indiana. She
wanted the child to attend public school and preferably to attend Silver Street
Elementary in New Albany, which is down the street from her new home. She
testified that Silver Street Elementary offers extracurricular activities and that the
child could ride a bus to the YMCA after-school program. According to Young,
Silver Street Elementary was a smaller school with a smaller teacher-to-student
ratio and that would be more beneficial to their son. Young did not visit any public
schools in Kentucky but did visit St. Rita in Louisville. Young testified that she
felt “judged” for not being Catholic at St. Athanasius but not at St. Rita. She
testified that she was concerned that if her child were to attend a Catholic school
but was not a practicing member of the faith that he would be singled out when the
children had religious studies.
In light of the testimony presented, the trial court determined that as
the parents sharing joint custody could not reach a decision, then the court would
resolve the conflict based upon the best interest of the child.
The trial court found that based on the testimony and the evidence
presented it was in the child’s best interest to attend kindergarten at St. Athanasius.
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The court noted that it was provided with limited documentation regarding the
schools’ academics, performance, and environment. However, based on the
parent’s testimony, the child knew some of the other children who may be
attending school at St. Athanasius, the location was more convenient for the
parties, and when combined with the academics, extracurricular activities, and onsite after-school program, should provide a positive environment.
Further, the court reasoned that all of the benefits derived from the
child attending St. Athanasius would not require travel to a secondary location. By
the child attending St. Athanasius, the extended family of both parties could attend
functions at the school involving the child. The court noted that many nonCatholic students attend parochial schools and the court empathetically stated that
it did not dictate the religious upbringing of the child, but reiterated that the
decision to send the child to St. Athanasius was based on the best interest of the
child. It is from this order that Young appeals.
Young presents two arguments on appeal.2 First, the court order
violates her First Amendment rights because it requires Young to send her child to
a religious school against her wishes. Second, the court order did not find that her
child has any special needs which would make public school unsuitable for him.
2
Holmes failed to file an appellee brief. CR 76.12(8)(c) permits this Court the following options
in this situation: “(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse
the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the
appellee's failure as a confession of error and reverse the judgment without considering the
merits of the case.” We have elected option one and have premised our analysis on her version
of the facts and issues.
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At the outset we note that the overriding principle, as correctly
determined by the trial court, is that the best interest of the child be served by the
trial court’s decision. Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky. App. 1984).
As to what constitutes the best interest of the child, any factual findings are
reviewed under the clearly erroneous standard; any decisions based upon said facts
are reviewed under an abuse of discretion standard. See 1 Ralph S. Petrilli,
Kentucky Family Law § 26.22 (1988)(citing Largent v. Largent, 643 S.W.2d 261
(Ky. 1982); Enlow v. Enlow, 456 S.W.2d 688 (Ky. 1970); Whisman v. Whisman,
401 S.W.2d 583 (1966); Hinton v. Hinton, 377 S.W.2d 888 (Ky. 1964)).
In support of her first argument, that the trial court’s order violates her
First Amendment rights, Young fails to cite any case law in support thereof to this
Court. After our review of the record sub judice, we believe Burchell, supra, to be
dispositive of this appeal. In Burchell, our Court undertook an analysis of joint
custody.
Joint custody is an arrangement whereby both
parents share the decision making in major areas
concerning their child's upbringing . . . .
If, as in the instant case, 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.
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Id. at 299-300. See also Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008);
Drury v. Drury, 32 S.W.3d 521 (Ky. App. 2000); and Hazel v. Wells, 918 S.W.2d
742 (Ky. App. 1996).
In support of the reasoning used by our Court in Burchell, we turn to
the case of Matter of Marriage of Debenham, 896 P.2d 1098 (Kan. App. 1995),
where the Kansas Court of Appeals was presented with a similar fact situation.
Citing to our decision in Burchell, the court in Debenham concluded that the trial
court’s order which utilized the best interest of the child standard and explicitly
disclaimed any religious preference by choosing the parochial school did not
violate the First Amendment. Id. at 1100.
While we believe that the explicit disclaimer of the trial court is
helpful in understanding its decision, it is not dispositive. Absent a religious
disclaimer, Young would still bear the burden of proving that the decision of the
trial court was based upon religious interests and such impropriety would not be
presumed merely because the school selected had a religious connotation in
addition to its academic offerings.
In the case sub judice, the parties as joint custodians could not agree
on a major issue concerning the education of the child. Their failure to agree
ultimately resulted in their abdication of such a decision to the trial court. After
conducting a hearing on the issue, the trial court made a determination based upon
the best interest of the child. There was substantial evidence to support the trial
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court’s decision and the trial court made neither legal error nor violated the First
Amendment.
In support of her second argument, that the trial court was required to
find that her child had special needs that made public school unsuitable for him
before ordering the child to attend private school, Young directs this Court to
Miller v. Miller, 459 S.W.2d 81 (Ky. 1970), and Smith v. Smith, 845 S.W.2d 25
(Ky. App. 1993).
According to Young these cases mandate a preference for public
school over private school, unless the child has special needs which cannot be met
by the public school system. Our reading of the cases yields a much different
result. In Miller and Smith, the trial court imposed upon the appellant the
additional cost of private education, to which the appellant objected. In the matter
sub judice, Holmes has freely undertaken the additional cost of private education.
The question before our Court is how the best interest of the child is served when
the parties are presented with multiple educational opportunities for the child.
Thus, Miller and Smith are not controlling.
In light of the aforementioned reasons we affirm the Jefferson Family
Court.
THOMPSON, JUDGE, CONCURS.
WINE, JUDGE, CONCURS IN RESULT AND FILES SEPARATE
OPINION.
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WINE, JUDGE, CONCURRING IN RESULT: I concur with the
well-reasoned opinions not only of the majority of this panel, but of the trial court
as well. However, there are some issues raised by Ms. Young I feel compelled to
address.
It is unfortunate that the parents’ inability to compromise has resulted
in a civil court making a decision in a matter which clearly falls within the core of
parental responsibility – where a child is to be educated. The conduct of these
parties is a harbinger of future court intervention in many matters which are
personal and unique to a family.
It is not uncommon for parents of different religious denomination to
marry. The decision as to what faith to raise a child or children is usually made
after much discussion, both within the family and with respective church
counselors.
Ms. Young has confused attending a parochial school with what faith
beliefs their son will practice. Every other Sunday, their son will have the
opportunity to worship at the church she attends. Likewise, their son will have the
opportunity to worship at the Catholic church Mr. Holmes attends. Both parents
will have the opportunity to teach their son about the richness of their particular
faith tradition.
Ultimately, the child will make a decision as to where he prefers to
worship. Hopefully both parents will respect that decision. Based upon his
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parents’ “walk” and “talk”, he may choose where his mother or father worship, or
he may reject both.
The trial court was responsible only for deciding where the child will
attend school. Ms. Young and Mr. Holmes are still responsible for the moral
compass which will direct their son’s life.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Katherine A. Ford
Louisville, Kentucky
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