Draskovich v. Pasalich, 172A13

• Decision Date: 20 March 1972
• Docket Number: No. 172A13,172A13
• Citation: 280 N.E.2d 69,151 Ind.App. 397
• Parties: Nick DRASKOVICH et al., Defendants-Appellants, v. Nova PASALICH et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 69

280 N.E.2d 69

151 Ind.App. 397

Nick DRASKOVICH et al., Defendants-Appellants, v.Nova PASALICH et al., Plaintiffs-Appellees.

No. 172A13.

Court of Appeals of Indiana, Third District.

March 20, 1972.

Charles W. Ainlay, George E. Buckingham, Goshen, for appellants.F. Leroy Wiltrout, Elkhart, of counsel.

John W. Montgomery, South Bend, for appellees.

SHARP, Judge.

This case involves a dispute between two contesting groups in the Serbian Estern Orthodox Church and School Parish of St. Peter and St. Paul in South Bend, Indiana, hereinafter called local church, for the use and control of the church property.

To understand the contentions of the parties it is necessary to outline certain developments within the Serbian Eastern Orthodox Church whose See is in Belgrade, Yugoslavia, hereinafter called Mother Church, particularly certain events in the year 1963 and since.

Generally the Mother Church is a part of the Eastern Orthodox branch of the Christian religious community which traces its practices through the division with the Roman Catholic Church in the 11th Century to the Council of Nicea in the year 325 A.D.There have been literally libraries written describing these historical events.One of the most succinct statements in this regard is set forth by the Supreme Court of Michigan in Hanna v. Malick, 223 Mich. 100, 193 N.E. 798(1923).

The rites, doctrines, polity and practices of the Serbian Eastern Orthodox Churches are closely related to those of the Eastern Orthodox Churches which developed in other eastern European and near eastern areas such as the Russian, Greek, Bulgarian and Romanian Eastern Orthodox Churches, and were the result of several centuries of development.Thus, the rites, doctrines, polity and practices are often complex and difficult for the uninitiated to understand.This fact is well born out in this case where we have a trial that lasted eight weeks producing a transcript of 4229 pages in nine separate volumes.A substantial portion of the trial of this case was an in-depth consideration of the rites, doctrines, policy and practices of the Mother Church and the Serbian Eastern Orthodox Diocese of the United States of America and Canada, hereinafter called United States and Canada Diocese, as well as the local church.

Prior to May 10, 1963, the local church was a constituent part of the United States and Canada Diocese of the Mother Church.This diocese as then constituted comprised the entire territory of the United States and Canada and was one of the dioceses of the Mother Church.The spiritual head of the Mother Church was the Serbian Patriarch and the power of appointment was vested in the Holy Assembly of Bishops, also known as the Holy Episcopal Council.Before May 10, 1963, Bishop Dionisije was designated as Bishop of the United States and Canada Diocese by the Holy Assembly of Bishops.On that date the Holy Assembly with the approval of the Patriarch divided the United States and Canada Diocese into three new dioceses and added some new territory from Africa and South America.New Bishops were appointed in each of the three new diocess.Bishop Dionisije opposed this division and sought the support of others.Dionisije was later defrocked on March 15, 1964.In general, the Plaintiffs-Appellees are supporters of Dionisije in the local church and the Defendants-Appellants are loyal to the Mother Church and desire to retain the hierarchical connection with the Mother Church.

In 1966, the Appellees brought an action for injunction to prohibit the Appellants from exercising control and ownership of the property in South Bend, Indiana.The prayer for relief in the Appellees' Petition for Injunction is revealing of the subject matter of the action.It states:

'WHEREFORE, plaintiffs pray that the defendants comprising the Board of Trustees of the church and the defendantWalter Milovich and each and every person acting in consort with them be restrained and enjoined from convening, conducting or holding any meeting of the membership of the church on March 22, 1964, and from submitting thereto any proposal to determine, by majority vote or otherwise, whether the membership of the church recognizes church affiliation with the mother church, the Serbian Orthodox Holy Synod, the Serbian Orthodox Holy Council of Bishops, and the Serbian Orthodox Bishop Firmillion Ocakoljich, or from doing any other act or causing any other member or group of members of the church to do any act calculated or intended to or which might separate or tend to separate the church from the Serbian Eastern Orthodox Diocese of the United States of America and Canada in defiance of the ecclesiastical laws, usages, customs and principles which are accepted by all members of the church prior to the pretended dissolution of the Serbian Eastern Orthodox Diocese of the United States of America and Canada in 1963 pending the giving of notice to the defendants of the hearing and the hearing on plaintiffs' application for temporary injunction, and that after due notice and hearing the defendants and all others acting in consort with them be temporarily and permanently enjoined as prayed for herein and plaintiffs be granted all other and proper relief.'

The trial court entered special findings and conclusions and granted a permanent injunction for the Appellees on August 15, 1968.The essential finding and conclusion which is in dispute is the determination that the Mother Church was without legal authority to divide the United States and Canada Diocese and therefore such action was null and void.Such decision necessarily removes the control and use of the property where the local church is located from the group which has remained faithful to the mother Church.

The period between August 15, 1968, when the trial court entered judgment and late 1971 was taken up in the lengthy process of perfecting this appeal.This appeal was originally filed in the Supreme Court of Indiana which transferred it to this court for consideration on the merits by order on January 10, 1972.The Appellants have also filed a Brief in four volumes consisting of 1020 pages for our consideration.We realize that in cases such as this emotions run high.Counsel for all parties and the trial judge have handled this difficult case in a highly professional manner and are to be commended.

There are two questions which we must consider:

1.The nature of the church organization involved in this dispute.

2.Whether the decision of the trial court transgressed the boundaries of the First Amendment to the Constitution of the United States.

Notwithstanding the limitations imposed on the civil courts, which we will detail later, the civil courts can (and indeed must in some cases) look at ecclesiastical documents and related evidence concerning religious rites, doctrines, polity and practices for the limited purpose of determining the nature of the church organization.

The landmark and oft cited case, Watson v. Jones, 80 U.S. 67913 Wall 679, 20 L.Ed. 666(1872), sets forth and defines the three general categories of such organizations, the same being congregational, connectional and hierarchical.While the facts often do not fit neatly into these molds, and some church organizations represent a blend of more than one kind, the definitions are sufficient for us here.

We are here asked to review a massive volume of documentary evidence related to this and other issues.It is still the law of Indiana that upon appellate review the appellate tribunal is in as good a position as the trial court to interpret documentary evidence.Both parties have urged this rule on this court for a proper determination and have relied on Wiltrout, Indiana Practice, Vol. 3, § 2786.

In Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120(1952), the Supreme Court of the United States said: 'hierarchical churches may be defined as (1) those organized as a body with other churches (2) having a similar faith and doctrine (3) with a common ruling convocation or ecclesiastical head . . .'344 U.S. 110, 73 S.Ct. 151.

Some of the relevant articles are set forth and discussed below.The constitution of the United States and Canada Diocese contains 163 articles covering 33 pages in the transcript and the constitution of the Mother Church contains 269 articles which is published in a booklet of 82 pages.In addition there are the by-laws of the local congregation for the year 1916 which consists of 31 articles and the 1953 by-laws of the local congregation consisting of 86 articles for the church in addition to 32 articles for the local church club.There is also the articles of incorporation of the Serbian Society of St. Peter and St. Paul's Church of South Bend, Indiana, in 1928 consisting of four articles.

Article 1 of the Diocesan Constitution provides:

'The Serbian Orthodox Diocese in the Northern States of America and Canada is considered ecclesiastically-judicially as an organic part of the Serbian Patriarchate in the Kingdom of Yugoslavia and enjoys all the benefits which originate therefrom.'

Article 2 of the Diocesan Constitution provides:

'All statutes and rules which regulate the ecclesiastical-canonical authority and position of the Serbian Orthodox Church in the Kingdom of Yugoslavia are also compulsory for the Serbian Orthodox Diocese in the United States of North American and Canada, with the exception of specific cases which must be formulated with regard to local circumstances in accordance with ecclesiastical and judicial principles.'

Article 3 of the Diocesan Constitution provides:

'The jurisdiction of the Serbian Orthodox Diocese in the United States of America and Canada with its Diocesan See in Chicago, includes the entire political territory of the United States of America and Canada, which as such by its geographical location enjoys full administrative freedom and accordingly, it can independently regulate...