Preview:

RENDERED: AUGUST 28, 2009; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2008-CA-001365-MR JENNIFER YOUNG APPELLANT

v.

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.

-2-

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. -3-

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.

-4-

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

Download 2008-ca-001365.pdf

Kentucky Law