Dawkins v. DAWKINS (40,956) ( 1958 )

The opinion of the court was delivered by

Jackson, J.:

This was a divorce case in the court below between the wife of a minister and her husband. We have the unusual situation in which the husband’s church and a bank which holds a mortgage on certain church property became defendants in the divorce case. It is unusual, but not unheard of in our former cases for third parties to be involved in divorce cases. (Breidenthal v. Breidenthal, 182 Kan. 23, p. 28, 318 P. 2d 981, and authorities cited.) The bank and the church became defendants due to the fact that Mrs. Dawkins, the plaintiff, made certain claims upon property standing in the name of the church, and on which the bank holds a mortgage.

The trial court, after a trial which we are advised lasted the better part of two weeks, granted a divorce to the plaintiff wife and gave her custody of two minor children. The court also in awarding alimony and child support made the unusual finding that the minister and the church were one, and in effect, held that all of the church property belonged to the minister. The trial court decreed that a certain building known as the parsonage, located at 903 Argentine Blvd., Kansas City, Kansas, should be set. over and decreed to be the property of the plaintiff wife. The title of this property was and is in the name of the trustees of the church and is covered by a mortgage in original amount of $45,000 which mortgage likewise covers the church building. The trial court likewise set aside for lack of consideration a quitclaim deed made by the wife and husband to the board of trustees of the church covering the parsonage and other church properties to which the' wife had made claim in a previous petition for separate maintenance. This deed was executed during an attempted reconciliation between the minister and his wife.

The trial court stated its conclusions in a part of its opinion on page 282 of the abstract reading as follows: •

“What is the situation with respect to the operation of this church? There aren’t any books worthy of the name prior to the year 1957. The evidence leads me to believe that Reverend Dawkins was answerable only to his conscience in connection with the disbursement of church funds. Now, I think Reverend Dawkins has a conscience; I am not convinced that he made away with church funds. But the fact that he, alone, had the control over them is important in arriving at the true state of affairs in this case.

“With reference to the trustees of the Gospel Tabernacle, the Court finds that this was not a legimately-operating, independent board, but that the board was, in fact, a straw board created by Reverend Dawkins to meet a legal necessity, to-wit: the requirements of the R. F. C. . . .

“Fraud is not the question here. But the deed by which Reverend and Mrs. Dawkins conveyed certain properties to the trustees (Exhibit 36) will be held to be invalid and of no force or effect because (1) no consideration for such deed is shown, and (2) the situation is the same as if Carl Henry Smith, for example, were to sign a deed as Carl Smith, conveying property to himself as Henry Smith. The grantor, R. E. Dawkins (joined by his wife) and the grantee are one and the same, in view of the Court’s findings that the trustees simply provided a method by which Reverend Dawkins carried on the business of the Church.”

The abstract in this case, including exhibits, runs to the length of some 330 pages. There is also a counter abstract, entirely in the form of questions and answers of 250 pages. The court has been hindered because the pleadings in the case have not been included in either the abstract or counter abstract despite the length thereof. Closer attention should be given to the rules of the court pertaining to appeals. • (See Rule 5.)

In this appeal, we are concerned only with the rights of the Gospel Tabernacle of which the Reverend Mr. Dawkins is the pastor.

The church is appealing and asserts that the property of the church has been taken and given to Mr. Dawkins, and that his wife has been allowed alimony therefrom. As will be seen from the above quoted part of the court’s opinion, the basis of the court’s decision was that the Reverend Mr. Dawkins absolutely controlled the operation of the church and the actions of its board of trustees, and that therefore, since the church was an unincorporated society, Dawkins and the church were one and the same thing. After reading the long record, we would agree with the trial court on most of the facts which show that the pastor of this church was its undisputed leader and guided its policies and its doings; that he was the leading light in its foundation some twenty-seven years ago; that apparently he controlled the action of the board of trustees. It is also true that up until after the flood of 1951, the church had no board of trustees, but the pastor ran the church himself. Mr. Dawkins testified that prior to about 1952, he was sole trustee of the church’s property and that the church affairs of the Gospel Tabernacle were carried on in that manner.

We feel that the trial court misconceived the legal position of the pastor under all of the above facts. He was a trustee, a fiduciary, expressly and by operation of law, and while he did exercise complete control, the property was not his own personal property, but the property of the church.

The idea of a sole trustee in the person of the pastor is not new. The Roman Catholic Church has long held property in the name of its bishops as corporation soles. (See Searle v. Rom. Cath. Bishop of Springfield, 203 Mass. 493, 89 N. E. 809; Elack’s Law Dictionary, p. 410.) Likewise, the domination of a board of deacons, a board of elders, or a vestry by the minister is not unknown in Protestant churches. This domination often occurs even when the church is incorporated.

The parsonage and all of the property here concerned, and to which the church now makes claim, stands in the name of the board of trustees of the church. Furthermore, as noted above, the wife released any claim she had been asserting by signing the quitclaim deed covering all of this property at the time of the attempted reconciliation. The unfortunate circumstance that the reconciliation did not work out would not give the court the power to cancel that deed and also the pre-existing title of the church and give the property to the church trustee personally, partially at least, for the benefit of his wife.

The reports of this court are full of cases involving the property rights of unincorporated church societies. None that have come to the court’s attention involve the claim of the pastor’s wife for alimony in the church property, but all uphold the sanctity of the claim of the religious body as to the property dedicated to pious and religious uses. It makes no difference whether the dedication to such use be made by the public or by the members of the unincorporated society.

In the early case of Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 1 Pac. 109, Mr. Justice Brewer speaking for the court said:

“It is enough to say, that after a variety of decisions and legislation the law seemed to culminate and be settled by the statute of 43 Elizabeth, chap. 4, (1601,) commonly called ‘the statute of charitable uses/ and from that time on the validity of appropriations to such uses was considered a settled thing at the common law. And while in this country that statute as a whole has not been accepted as of force in all the states, yet the principle which underlies it has been universally recognized, at least so far as any question like the one before us is concerned. Thus in Trustees v. Canal Co., 9 Ohio St. 287, the court said:

“ ‘But one of the earliest demands of every social community upon its lawgivers, at the dawn of its civilization, is adequate protection to its property, and institutions, which subserve public uses, or are devoted to its elevation, or consecrated to its religious culture, and its sepulchres; and in a proper case, the courts of our state might be driven into the recognition of some principle analogous to that contained in the statute of Elizabeth, as a necessary element of our jurisprudence/

“And in the case of The Town of Pawlet v. Clark, 9 Cranch, 332, the supreme court of the United States by Story, Judge, uses this language:

“ ‘For the reasons then that have been stated, a donation by the crown for the use of a non-existing parish church, may well take effect by the common law as a dedication to pious uses, and the crown would thereupon be deemed the patron of the future benefice when brought into life. And after such a donation it would not be competent for the crown to resume it at its own will, or alien the property without the same consent which is necessary for the alienation of other church porperty/ ”

See also our later cases of Hughes v. Grossman, 166 Kan. 325, at page 330, 201 P. 2d 670; Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638; Kansas Baptist Convention v. Smith, 178 Kan. 123, 283 P. 2d 503; Jackson v. Jones, 130 Kan. 488, 287 Pac. 603; and United Brethren, Etc., v. Mount Carmel Community Cemetery Ass'n, 152 Kan. 243, 103 P. 2d 877.

Many of the above cases involve schisms in religious societies. Actually, there has been a schism in the church in this case. The wife and most of her witnesses were former members of the church who had severed their relations with the church and its pastor because of doctrinal differences. As such former members, they have no right to impair the title of the church property and the fiduciary relation of the pastor of the church to his charge. This court differs with the trial court as to the law to be applied to the facts found by the trial court. Therefore, the portion of the trial court’s decree setting aside the deed of March 12, 1957, and in any other manner casting doubt upon any property belonging to the church should be and the same is hereby reversed.

The other portions of the trial court’s decision are dealt with in the companion appeal this day decided, see Dawkins v. Dawkins, No. 40,957, page 336.

It is so ordered.