Norfolk Presbytery v. Bollinger

• Decision Date: 14 January 1974
• Citation: 201 S.E.2d 752,214 Va. 500
• Court: Virginia Supreme Court
• Parties: The NORFOLK PRESBYTERY v. Jerry L. BOLLINGER et al.

Page 752

201 S.E.2d 752

214 Va. 500

The NORFOLK PRESBYTERY v. Jerry L. BOLLINGER et al.

Supreme Court of Virginia.

Jan. 14, 1974.

Peter W. Rowe, Robert C. Stackhouse, Norfolk (Stackhouse, Weinberg & Stewart, Norfolk, on brief), for appellant.

Owen H. Page (Ga.), Savannah, Ga., William McL. Ferguson, Newport (Shannon T. Mason, Jr., Ferguson & Mason, Newport News, on brief), for appellees.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

The congregation of Grace Covenant Presbyterian Church in Hampton, on July 23, 1972, voted to sever its connection with The Norfolk Presbytery and The Presbyterian Church in the United States and to become an independent and autonomous church. On September 22, 1972, the Trustees of Grace Covenant, pursuant to a resolution unanimously approved at another congregational meeting, filed their petition in the trial court praying that they be permitted to convey the real estate which they held for the church, comprising the property used for a church and elementary school and parsonage property, to The Mary Atkins Christian Day School, a Virginia corporation. By order entered the same day in the ex parte proceeding the trial court, after reciting that the evidence showed that the transfer of property was 'the wish of the congregation' and that the congregation was 'the governing body of said church', directed the Trustees to effectuate the property transfer.

Within 21 days after entry of this order Norfolk Presbytery filed its motion to set aside the order as contrary to the law and the evidence and as improvidently granted. In the alternative the Presbytery moved for leave to file its petition as an intervenor and to stay the order pending decision on this motion.

The motion for leave to intervene alleged that Grace Covenant was a duly constituted church of and subject to the jurisdiction, government and discipline of The Presbyterian Church in the United States, a supercongregational body. The motion further alleged that the action of the congregation in undertaking unilaterally to withdraw, with its property, from the parent church was contrary to ecclesiastical law; that Norfolk Presbytery was the first ecclesiastical court having direct jurisdiction over Grace Covenant; that the Presbytery had a proprietary interest, as well as a jurisdictional and pastoral interest, in Grace Covenant and its property, which would be denied without due process of law if the order of September 22, 1972, became final; and that the order was 'or may be, an unwarranted interference of the State with the Church, in violation of both the State and Federal Constitutions.' The motion also stated that the Presbytery did not know of the pendency of the ex parte proceeding until after the order had been entered.

The trial court heard arguments on the motions of Norfolk Presbytery and concluded that the order of September 22, 1972, complied with the requirements of the applicable statute ¹ governing transfers of church property and that to grant the motions would necessarily involve the civil court in an impermissible determination of ecclesiastical law. From the order entered November 13, 1972, overruling its motions we granted the Presbytery an appeal.

We construe Code § 57--15 to require that a church property transfer may be ordered only upon a showing that this is the wish of the duly constituted church authorities having jurisdiction in the premises. Under predecessor statutes only the congregation's wishes were to be considered in a proceeding to authorize a church property conveyance, ² but Code § 57--15 now contemplates that the general church, or a division thereof, or certain ecclesiastical officials may be the proper parties to approve such a property transfer. In determining the proper party to approve the property transfer, the trial court must look to the organizational structure of the church. See Code § 57--9, which recognizes a distinction between an autonomous congregation and one which is part of a supercongregational or hierarchical denomination in providing for the determination of property rights upon a division of a church or congregation. Baber v. Caldwell, 207 Va. 694, 698, 152 S.E.2d 23, 26 (1967). In the case of a supercongregational church, we hold that Code § 57--15 requires a showing that the property conveyance is the wish of the constituted authorities of the general church.

In view of our construction of Code § 57--15, we hold that the trial court erred in denying the Presbytery's motion to intervene. If the Presbytery does have a proprietary interest in the Grace Covenant property, the court's approval of the conveyance sought by the Trustees would unlawfully deprive the Presbytery of this property interest. Accordingly, the Presbytery was entitled to present whatever evidence it had tending to establish its interest in the Grace Covenant property. If, upon remand, the Presbytery does establish such a proprietary interest, it will be entitled to a permanent injunction against the conveyance by the Trustees to the Day School. If, however, the Presbytery is unable to establish a proprietary interest in the property, it will have no standing to object to the property transfer. See Brown v. Virginia Advent Christian Conference, 194 Va. 909, 76 S.E.2d 240 (1953).

Each party contends, however, that regardless of statutory provisions, it must prevail under the constitutional principle of separation of church and state. The Trustees contend that judicial review of the congregation's decision to become autonomous would abridge the congregation's right to free exercise of religion and would establish the Presbytery as a state supported church. The Presbytery asserts that a ruling in favor of Grace Covenant would be an impermissible establishment of the local church and a prohibited interference in the ecclesiastical law of the general church. We reject both of these contentions, for there is no constitutional prohibition against the resolution of church property disputes by civil courts, provided that the decision does not depend on inquiry into questions of faith or doctrine. Maryland and Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970); Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Carr v. Union Church of Hopewell, 186 Va. 411, 42 S.E.2d 840 (1947).

Where a church is hierarchical, a majority of courts have held that, absent express limitations in the deed, church property is held subject to an implied trust for the general church. Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871); Presbytery of Everglades v. Morgan, 125 So.2d 762, 765 (Fla.Dist.Ct.App.1961); Note, 54 Va.L.Rev. 1451 (1968). See Annot., 52 A.L.R.3d 324 (1973). In Watson v. Jones, Supra, it was held that those who unite themselves with a hierarchical church do so with an implied consent to its government and take title to local church property subject to an implied trust for the general church. The decision of the tribunal established by the general church to resolve ecclesiastical disputes was held to be binding on local congregations and on civil courts. We are not bound by the rule of Watson v. Jones, Supra, however, for that case rested on federal law. Moreover, it did not hold that the implied trust doctrine was the only constitutional rule for resolving church property disputes.

The Trustees of Grace Covenant argue that the implied trust rule of Watson v. Jones, Supra, was held unconstitutional by Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, Supra. The latter case arose out of a dispute over church property of two local churches in Georgia that withdrew from The Presbyterian Church in the United States. Under Georgia law church property of a local congregation of a hierarchical church was held under an implied trust for the general church so long as the general church did not depart from doctrine in force when the local churches became affiliated. A jury trial was held, the jury found that there had in fact been a departure from doctrine, and judgment was entered in favor of the local churches. The Supreme Court reversed and remanded, holding that it was constitutionally impermissible under the First Amendment to require a civil court to determine whether there had been a substantial departure from the tenets of faith and practice. The court noted with approval the similar result reached in Watson v. Jones, Supra, where the court refused to decree the termination of an implied trust because of departure from doctrine of the general church.

Thus, in Hull, the Supreme Court acknowledged that civil courts may properly adjudicate disputes over church property. The First Amendment requires only that such disputes be adjudicated according to 'neutral principles of law, developed for use in all property disputes', and which do not involve inquiry into religious faith or doctrine. 393 U.S. at 449, 89 S.Ct. at 606.

Upon remand of Hull sub nom. Presbyterian Church in United States v. Eastern Heights Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert. denied, 396 U.S. 1041, 90 S.Ct. 680, 24 L.Ed.2d 685 (1970), the Georgia Supreme Court held that the implied trust rule in favor of the general church must fall because of the invalidation of the departure-from-doctrine provision which was an integral part of the rule. Without the rule the court held that there was no trust for the general church, as no trust was created by the deeds, implied by statute or required by the constitution of the general church. Therefore, the local churches retained the church property in controversy. Cf. Presbytery of Seattle, Inc. v. Rohrbaugh, 79 Wash.2d 367, 485 P.2d 615 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1246...