Landis, In re

• Decision Date: 27 July 1982
• Citation: 5 Ohio App.3d 22,448 N.E.2d 845
• Parties: , 5 O.B.R. 24 In re LANDIS et al. *
• Court: Ohio Court of Appeals

Page 22

5 Ohio App.3d 22

448 N.E.2d 845, 5 O.B.R. 24

In re LANDIS et al. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

July 27, 1982.

Syllabus by the Court

Judicial enforcement of a separation agreement requiring a noncustodial parent to pay tuition for his children's education at a religiously oriented school does not constitute unconstitutional state support of such religiously oriented school under the Establishment Clause or the Free Exercise Clause of the First Amendment to the United States Constitution, nor the Religious Freedom Provision of the Ohio Constitution.

Kemp, Schaeffer & Rowe Co., L.P.A., and Harold R. Kemp, Columbus, for appellee Christina Landis.

Michael L. Close, Columbus, for appellant Rex Landis.

WHITESIDE, Presiding Judge.

Petitioner-appellant, Rex Landis, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and raises a single assignment of error, as follows:

"The trial court erred in enforcing by contempt a separation agreement incorporated into a final decree of dissolution requiring husband to pay for child's education at a religious institution by reason of the same being unenforceable under the terms of the Ohio Constitution, Article One, Section Seven, and the United States Constitution, First and Fourteenth Amendments."

The marriage of the parties was dissolved by a decree of dissolution approving and incorporating a separation agreement executed by the parties, providing that appellee, Christina Landis, have the care, custody and control of the minor children of the parties and that appellant would pay child support in a stipulated amount and, in addition, that:

" * * * Husband further agrees that the minor children of the parties shall attend Maranatha Christian School and that he will pay all tuition for each child for said schooling until each of them completes high school."

The decree was entered December 1, 1977, and appellant paid tuition for the school as required by the separation agreement at least until January 1981 when he filed a motion for modification of this provision of the separation agreement, contending that circumstances had changed so as to make the requirement unreasonable, unfair and burdensome, and because he did not understand the "long term implications of such an open-ended school tuition provision" at the time of the execution of the separation agreement. This motion apparently was overruled by entry entered May 22, 1981. A few weeks later, appellant filed a motion for relief from judgment, raising essentially the same issues as raised in his previous motion, which motion for relief from judgment was subsequently withdrawn. In September 1981, appellee filed a motion for a citation in contempt, alleging, as is germane here, that appellant had failed to pay the tuition for the parties' minor children's attendance at Maranatha Christian School. By a memorandum opposing this citation in contempt, appellant, for the first time, raised the contention that enforcement of this provision of the separation agreement would constitute a violation of the First and Fourteenth Amendments to the United States Constitution. An evidentiary hearing was conducted, resulting in an order of the trial court finding appellant in contempt for failure to pay tuition expenses in accordance with the separation agreement incorporated into the dissolution decree.

The essential issue upon appeal is whether enforcement of a separation agreement requiring a noncustodial parent to pay tuition for his children's education at a religiously oriented school constitutes unconstitutional state support of such religiously oriented school.

Specifically, appellant contends that enforcement of the separation agreement constitutes infringement upon the First Amendment to the United States Constitution, which has been held applicable to the states through the Fourteenth Amendment and states that Congress shall make no law prohibiting the free exercise of religion or respecting an establishment of religion. The Free Exercise Clause secures the right of religious belief and the right to practice and propagate one's faith unrestricted by government. The Establishment Clause prohibits the government's aiding one religion preferring one religion over another or aiding all religions. Construed in accordance with numerous United States Supreme Court decisions, taken together the two clauses require governmental neutrality in religious matters. Similarly, Section 7, Article I, Ohio Constitution provides in pertinent part that:

"All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. * * * "

In support of his contention that enforcement of the separation agreement provision that he pay for his children's tuition at the religious school would be unconstitutional, appellant relies primarily upon the Lucas County Court of Common Pleas decision in Hackett v. Hackett (1957), 77 Ohio Law Abs. 98, 146 N.E.2d 477 , which was affirmed by the court of appeals in Hackett v. Hackett (1958), 78 Ohio Law Abs. 485, 150 N.E.2d 431.

The issue involved in Hackett is somewhat different from that involved herein. In Hackett, the noncustodial parent attempted to compel the custodial parent to send their minor child to a parochial school in accordance with provisions of the separation agreement incorporated in a divorce decree, but contrary to the wishes and beliefs of the custodial parent. The Sixth District Court of Appeals stated at page 489, 150 N.E.2d 431:

" * * * The husband seeks to continue a practice, not compatible with the mother's wishes, which he could not harmoniously resolve while yet a member of the household. The child is now under the mother's custody. The promise was one dealing with a service which she is now not willing or completely able to satisfactorily perform. The child is as much her child as that of the defendant-appellant with the additional fact that she has been awarded custody in an action in which a decree was entered because of his aggressions. She is now the head of the household of which he is no longer a member. * * *

" * * * it is our conclusion that the provisions of the Separation Agreement, dealing with the promise of the mother to see to it that the daughter, placed in her custody, be reared in the Catholic Faith and attend a school affiliated with the Catholic Church, cannot be enforced by judicial decree. * * * "

The Hackett trial court stated at page 100, 146 N.E.2d 477:

" * * * when the mother sends the child to this school she too supports and maintains the Catholic school and Catholic faith. * * *

"Regardless of what the mother assented to or solemnly promised, if the court were to compel her now * * * to keep her promise, that would appear to be compelling her to support or maintain a certain 'form of worship, against her consent.' Moreover, that would be an unpermitted 'interference with her rights of conscience.' * * *

" * * * Surely, it would be regarded as using the State 'as an engine for any purpose of the' Church to call upon the authority and power of the State to coerce the mother to send the child against her consent to any school extolling the tenets of any religion. * * * "

The gist of the decision in Hackett is that the custodial parent has a right to determine what school the child will attend, and enforcement of an agreement to send the child to a parochial school espousing religious beliefs contrary to the conscience and beliefs of the custodial parent constitutes an infringement upon her free exercise of religion.

The Ninth District Court of Appeals reached a similar conclusion, although in a case involving divided custody, stating in Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, 347 N.E.2d 552 [75 O.O.2d 250], at page 162, 347 N.E.2d 552:

" * * * Since plaintiff had actual care and control, and sought an order to change schools, there is no conflict between her desires and the court order concerning public versus religious schools, and the issue of freedom of religion.

"The defendant, thus, has no standing to raise that constitutional issue, because the constitutional protection is afforded to the person having personal care and control of the children. * * * "

Majnaric also involved a divorce decree incorporating a separation agreement providing for education of children in a parochial school, and the court earlier in the decision held that the custodial parent generally has the right to determine which school the child will attend. This is consistent with the general rule that the right to determine the school children will attend, religious or secular, rests with the custodial parent where the parents are divorced or separated. Also, it has been generally held that prior agreements seeking to control the religious training of children will not be enforced against such a custodial parent frequently upon grounds of impracticality, lack of consideration, or the welfare of the child. Thus, in O'Neill v. O'Neill (1965), 45 Misc.2d 1, 255 N.Y.S.2d 776, it is stated at 255 N.Y.S.2d page 778:

" * * * As a mother has and will have custody of the child, it would lead to great conflict and probable injury to the child's psychological well-being to attempt to compel the mother to raise the child against the mother's will in a religion that is different from the religion of the mother's home and that would represent for the child a sharp, compulsory break from the religion with which she now feels herself to be affiliated and which she knows is the religion in which her mother wishes to raise her."

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