Heartland Presbytery v. The Presbyterian Church of Stanley, Inc.

No. 114,404

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

HEARTLAND PRESBYTERY,
Appellee/Cross-appellant,

v.

THE PRESBYTERIAN CHURCH OF STANLEY, INC.,
Appellant/Cross-appellee.

SYLLABUS BY THE COURT

1.
The acquiescence doctrine establishes that parties who voluntarily accept the
benefit or burden of a judgment lose their right to appeal.

2.
Parties waive their right to appeal if their actions clearly and unmistakably show
an inconsistent course of conduct or an unconditional, voluntary, and absolute
acquiescence. However, a waiver is not implied from measures that parties take to protect
their rights following the entry of judgment.

3.
The First Amendment to the United States Constitution and Section 7 of the
Kansas Constitution Bill of Rights prohibit the government from interfering with a
person's right to freely exercise his or her religious beliefs. In addition, the government is
prohibited from compelling a person to support a particular religion or form of worship.

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4.
The First Amendment allows hierarchical religious organizations or
denominations to establish their own rules and regulations for internal governance and to
create tribunals for adjudicating disputes that arise within the organization.

5.
Where a local congregation voluntarily affiliates with a hierarchical religious
organization or denomination in accordance with the rules of that church body, church
law governs the right of dominion, control, and disposal of church property.

6.
In cases involving disputes over the ownership or control of church property
arising out of a schism, civil courts will take jurisdiction only to assure the regularity of
business practices and to protect the right of private use and ownership of property.

7.
In cases involving a church property dispute arising out of a schism in a
congregation affiliated with a hierarchical religious organization or denomination that has
established internal tribunals for the resolution of internal disputes, Kansas courts apply
the principle of hierarchical deference.

8.
Under the hierarchical deference approach, civil courts must defer to the decision
of the highest tribunal of the hierarchical church body to which the issue has been
presented.

9.
In applying the hierarchical deference approach in cases involving a property
dispute arising out of a schism in a local congregation affiliated with a hierarchical

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denomination, Kansas courts should answer three questions from a secular perspective:
(1) Was the congregation affiliated with a hierarchical church body or denomination prior
to the schism? (2) Does the hierarchical church body or denomination have its own rules
and procedures for the resolution of property disputes arising out of a schism within its
congregations? and (3) Has there been a determination of the property dispute by the
highest tribunal of the hierarchical church body or denomination to which the issue has
been presented? If the answers to each of these questions is in the affirmative, then a civil
court must accept the decision of the church tribunal as binding.

10.
Lower courts are duty bound to follow Kansas Supreme Court precedent, absent
some indication the court is departing from its previous position.

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed February 17,
2017. Affirmed.

J. Brett Milbourn and R. Keith Johnston, of Walters Bender Strohbehn & Vaughan, P.C., of
Kansas City, Missouri, for appellant/cross-appellee The Presbyterian Church of Stanley, Inc. (Dennis
Hamblin, Steve Lemieux, and Kay Sprouse).

Lee M. Smithyman, of Smithyman & Zakoura, Chartered, of Overland Park, for The
Presbyterian Church of Stanley, Inc.

Allan V. Hallquist and Christina M. Pyle, of Husch Blackwell LLP, of Kansas City,
Missouri, for appellee/cross-appellant Heartland Presbytery.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

BRUNS, J.: This case involves a church property dispute arising out of a schism
that developed between the members of the Presbyterian Church of Stanley, Inc. (PCOS).
Since 1983, the PCOS has been affiliated with the Presbyterian Church (U.S.A.), which is
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a hierarchical religious denomination. Unfortunately, a disagreement arose between the
members of the congregation relating primarily to certain theological positions taken by
the Presbyterian Church (U.S.A.) over the past several years. In 2014, a majority of the
members present at a congregational meeting voted to have the PCOS leave the
Presbyterian Church (U.S.A.)—referred to as the "leaving" faction—while a minority of
the members present at the meeting voted to continue its affiliation with the
denomination—referred to as the "staying" faction.

Heartland Presbytery—a governing arm of the Presbyterian Church (U.S.A.)—
brought this quiet title and declaratory judgment action in an attempt to preserve the
congregation's property for the use and benefit of the staying faction, whose members
desire for the PCOS to remain in fellowship with the Presbyterian Church (U.S.A.). In
response, the leaving faction filed a counterclaim seeking similar relief on behalf of those
who voted for the PCOS to disaffiliate from the Presbyterian Church (U.S.A.). Although
the district court found that the PCOS did not hold its property in trust for the
Presbyterian Church (U.S.A.), it deferred to a determination issued by a tribunal of
Heartland Presbytery that those members who desire to continue the PCOS's affiliation
with the Presbyterian Church (U.S.A.) are entitled to the disputed church property.

Shortly after they filed a notice of appeal, the appellants—and others who desired
to have the congregation disaffiliate from the Presbyterian Church (U.S.A.)—resigned as
members of the PCOS and started a new congregation affiliated with a different
denomination. On appeal, we find that the appellants did not acquiesce or waive their
right to appeal by exercising their right to leave the congregation after the district court
entered its judgment. Turning to the merits, we find that the district court correctly
applied the principle of hierarchical deference—which has long been recognized in
Kansas—in determining which of the two factions should have control of the property of
the PCOS following the schism. Furthermore, we find that there is no reason for Kansas

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courts to retreat from the hierarchical deference approach in resolving church property
disputes arising out of a schism. Thus, we affirm the district court's decision.

FACTS

The PCOS congregation originally formed in 1979, at which time it was affiliated
with two hierarchical church bodies—the United Presbyterian Church in the United
States of America (UPCUSA) and the Presbyterian Church in the United States (PCUS).
In 1983, the UPCUSA and the PCUS merged to form the Presbyterian Church (U.S.A.)—
hereafter referred to as "PCUSA". Similar to the two denominations from which it was
formed, the PCUSA is also a hierarchical church body. Consequently, the PCOS has been
officially affiliated with the PCUSA for more than 33 years.

The PCOS, throughout its history, has also been part of what is now known as
Heartland Presbytery—the governing arm of the PCUSA that is composed of
congregations in metropolitan Kansas City. Prior to 1983, Heartland Presbytery was
named the Kansas City Union Presbytery because it served both the UPCUSA and the
PCUS. In the late 1970s, the Kansas City Union Presbytery began efforts to plant a
mission congregation in southern Johnson County that would eventually become the
PCOS.

On December 3, 1978, the Kansas City Union Presbytery began holding worship
services in the basement of the Bank of Stanley. A part-time pastor supplied by the
Presbytery led the services. The following month, the Presbytery approved a petition
signed by 27 families requesting that a commission be established to officially organize
the congregation. On May 5, 1979, the Presbytery purchased 5.8 acres of land located
near 148th and Antioch in Johnson County as a building site for a new congregation.
Finally, on August 10, 1979, the PCOS was officially incorporated in the State of Kansas.

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 The Articles of Incorporation filed by the PCOS in 1979 stated:

"This corporation is organized for the purpose of supporting worship of Almighty
God and instruction in the Christian religion, according to the Constitution of The United
Presbyterian Church in the United States of America and the Presbyterian Church in the
United States."

Likewise, the bylaws approved by the PCOS in 1979 provided:

"The by-laws of the Presbyterian Church of Stanley as a corporation shall always
be subject to the Constitution and laws of the State of Kansas, and also to the
Constitution of the United Presbyterian Church in the United States of America and the
Presbyterian Church in the United States."

In February 1983, Pastor Richard Ramsey and a lay member of the PCOS
participated in a meeting of the Kansas City Union Presbytery. At the meeting, a Plan of
Reunion, which provided for the merger of the UPCUSA and the PCUS, was
unanimously approved. The Plan of Reunion also adopted the proposed Constitution of
the PCUSA, which includes the Book of Confessions and the Book of Order. The Book of
Confessions sets forth the core doctrinal beliefs of the PCUSA, including the Nicene
Creed, the Apostles' Creed, the Scots Confession, the Heidelberg Catechism, the Second
Helvetic Confession, the Westminster Declaration of Barmen, the Confession of 1967,
and a Brief Statement of Faith. The Book of Order sets forth the Foundations of
Presbyterian Polity, the Form of Government, the Directory for Worship, and the Rules
of Discipline.

The Book of Order provides that "the congregations of the [PCUSA] wherever
they are, taken collectively, constitute one church, called the church." As a hierarchical
denomination, officials of successive ranks govern the PCUSA. At the congregation
level, voting members elect a council known as the Session, which is composed of lay
elders and the pastor or pastors. In turn, the Presbytery governs the congregations in a
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particular geographic district. Next, a group of presbyteries in a region is called a Synod.
Finally, the ultimate authority in the PCUSA rests with the General Assembly, which is
made up of commissioners elected by the presbyteries.

Among other things, the Book of Order states that

"[a] 'congregation' . . . refers to a formally organized community chartered and
recognized by a presbytery as provided in this Constitution. Each congregation of the
Presbyterian Church (U.S.A.) shall be governed by this Constitution. The members of the
congregation put themselves under the leadership of the session and the higher councils
(presbytery, synod, and General Assembly)." (Emphasis added.)

In the Book of Order, the PCUSA directs its congregations to form a corporation
where permitted to do so by civil law. Moreover, the Book of Order provides that a
congregation organized as a corporation has the power "to receive, hold, encumber,
manage, and transfer property, real or personal, for the congregation . . . all subject to the
authority of the session and under the provisions of the Constitution of the Presbyterian
Church (U.S.A.)." (Emphasis added.) The Book of Order further states that the property
owned by a congregation "is a tool for the accomplishment of the mission of Jesus Christ
in the world." (Emphasis added.)

In addition, the Book of Order provides:

"All property held by or for a congregation . . . whether legal title is lodged in a
corporation, a trustee or trustees, or an unincorporated association, and whether the
property is used in programs of a congregation or of a higher council or retained for the
production of income, is held in trust nevertheless for the use and benefit of the
Presbyterian Church (U.S.A.)." (Emphasis added.)

Regarding the resolution of disputes between factions over "Property of
Congregation in Schism," the Book of Order states:

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 "The relationship to the [PCUSA] of a congregation can be severed only by
constitutional action on the part of the presbytery [citation omitted]. If there is a schism
within the membership of a congregation and the presbytery is unable to effect a
reconciliation . . . the presbytery shall determine if one of the factions is entitled to the
property because it is identified by the presbytery as the true church within the [PCUSA].
This determination does not depend upon which faction received the majority vote within
the congregation at the time of the schism." (Emphasis added.)

For many years, the PCOS flourished as a congregation of the PCUSA and
Heartland Presbytery. By 2014, the congregation had grown to more than 1,000
members. Moreover, until the disputes developed that ultimately led to the schism, the
PCOS, the PCUSA, and Heartland Presbytery worked closely together on such things as
purchasing property, obtaining loans, and funding mission projects. The PCUSA and
Heartland Presbytery also approved, ordained, and installed all of the pastors called to
serve the PCOS. Over the years, pastors and lay members of the PCOS served on various
committees and commissions of the Presbytery. In addition, pastors and lay members of
the PCOS served as commissioners of the Synod of Mid-America and the General
Assembly of the PCUSA.

Prior to the schism, the PCOS borrowed money on several occasions and
purchased additional land. Until 2013, Heartland Presbytery guaranteed all of the
mortgage loans obtained by the PCOS. The maintenance of the property was paid for by
the PCOS primarily using donations from its members. As required by the Book of Order,
the PCOS requested and obtained the Presbytery's approval prior to acquiring or
encumbering its real property. Moreover, the PCOS submitted the minutes of its Session
meetings to the Presbytery for review and approval as required by the Book of Order.

Unfortunately, the relationship between the PCOS, the PCUSA, and Heartland
Presbytery began to deteriorate over the past several years as many of the congregation's
members became disillusioned with certain theological positions taken by the PCUSA.

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These positions—identified in a document prepared by the Session of the PCOS entitled
"The PC (USA) and PCOS: Where We Stand"—related to core ecclesiastical issues
including the divinity of Jesus Christ, the exclusivity of Christianity for salvation, and the
authority of Scriptures. In addition, disputes also arose over the PCUSA's teachings on
human sexuality and other related issues.

In 2011, a small group of members at the PCOS began discussing these doctrinal
concerns as well as the possibility of withdrawing from the PCUSA. On October 2, 2011,
the PCOS amended its bylaws—evidently without informing Heartland Presbytery. The
2011 bylaw amendments struck the language from the 1979 bylaws that provided that the
PCOS "as a corporation shall always be subject to the Constitution and laws of the State
of Kansas, and also the Constitution of the [UPCUSA] and the [PCUS]." This wording
was replaced with language stating that in matters of civil law and corporate governance,
the PCOS would be subject to the laws of the State of Kansas but that the PCOS would
be "governed in ecclesiastical and spiritual matters of order and structure by the
Constitution of the [PCUSA]."

In August of 2013, the PCOS refinanced its mortgage with a private bank as
opposed to refinancing with the Church Development Corporation as it had when
refinancing in the past. Heartland Presbytery approved the refinancing but had no
knowledge that the PCOS represented to the bank that the property was not subject to any
liens, encumbrances, or defects of any nature. A few months later, the Session decided to
enter into a period of formal discussions within the congregation regarding the
relationship between the PCOS and the PCUSA. About that time, the document entitled
"The PC (USA) and PCOS: Where We Stand" was distributed to members of the
congregation. It presented the possibility of seeking "a new denominational affiliation"
and stated that "[a]s our denomination moves further away from the authority of the Bible
as God's infallible Word, and Jesus Christ as the only way to salvation, we find ourselves
increasingly out of step with our partner congregations."

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 In early 2014, the Session held a series of meetings with members of the PCOS to
discuss the question of whether the congregation should take steps to sever its affiliation
with the PCUSA. Around the same time, a group of members who did not want to
withdraw from the PCUSA distributed a document entitled "Stay" in which they stated
reasons why the PCOS should continue its affiliation with the denomination.
Additionally, several members of the PCOS filed a complaint with Heartland Presbytery
alleging that the Session had taken action that was prohibited by the Book of Order.

In August 2014, the Session voted to recommend to the congregation that the
PCOS "disaffiliate" from the PCUSA. The Session also recommended that the PCOS
consider affiliation with the ECO: Covenant Order of Evangelical Presbyterians (ECO).
The ECO is a relatively new denomination established in 2012 by former members of the
PCUSA who also had concerns about certain theological positions the national church
body had taken. Moreover, the Session scheduled a congregational meeting on October 5,
2014, to consider these issues.

On July 22, 2014, a group of members of the PCOS who did not support the
Session's move towards ending the congregation's affiliation with the PCUSA filed a
complaint with the Permanent Judicial Commission of Heartland Presbytery. In the
complaint, the group alleged that the PCOS Session had engaged in multiple
irregularities, including violations of the Book of Order, by taking action to lead the
congregation to sever its affiliation with the PCUSA. In particular, the complaint
requested that the Permanent Judicial Commission direct the Session to cease and desist
any actions found to be inconsistent with the Constitution of the PCUSA.

As authorized by the Book of Order, Heartland Presbytery appointed an
Administrative Commission to act on its behalf in addressing issues related to the PCOS.
On August 28, 2014, the Permanent Judicial Commission issued a Stay of Enforcement
in which it ordered the Session of the PCOS to suspend the upcoming congregational

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meeting. The same day, it was decided that the Administrative Commission should
assume jurisdiction over the congregation.

On August 29, 2014, the Administrative Commission sent a letter to the Session
advising that it had assumed jurisdiction over the congregation and directing that certain
items necessary for the continued operation of the PCOS be turned over to the
Commission. In response, the Session and the Board of Trustees of the PCOS advised the
Administrative Commission that they would not comply with its directions. They also
informed the Commission—through an attorney—that they disavowed the Constitution
of the PCUSA to the extent that it speaks to issues regarding ownership of church
property. The Session of the PCOS also filed an Objection to Stay of Enforcement with
the Permanent Judicial Commission.

On September 10, 2014, an Administrative Commission of the Heartland
Presbytery determined that there was a schism within the membership of the PCOS.
Furthermore, the Commission declared that those members of the PCOS who continue to
remain faithful to the teachings of the national church body and who abide by the Book of
Order constitute the true church within the PCUSA. A few weeks later, the Commission
also took action to dissolve the pastoral relationship between the Reverend Eric
Laverentz and the PCOS for his role in advocating for the congregation's separation from
the PCUSA and in denying the authority of the Permanent Judicial Commission to issue
the Stay of Enforcement.

Notwithstanding the action taken by Heartland Presbytery and the fact that the
Book of Order does not allow a congregation to disaffiliate from the PCUSA by a vote of
the congregation, an election was held on October 5, 2014. Of those voting at the
meeting, 348 members voted in favor of the congregation withdrawing from the PCUSA
and 94 members voted in favor of the congregation continuing its affiliation with the

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PCUSA. Although the numbers were slightly different, the majority present at the
meeting also voted in favor of the congregation joining the ECO.

At no point, however, has Heartland Presbytery taken action to sever the
relationship between the PCOS and the PCUSA. Likewise, neither the PCUSA nor
Heartland Presbytery have taken action to ratify the vote taken by the congregation.
Instead, the Permanent Judicial Commission held a trial on November 13, 2014.
Following the trial, the Permanent Judicial Commission issued a decision determining
that:

"a. The action of the Session to call a congregational meeting for October 5,
2014, for the purpose of 'disaffiliation' is found to have been irregular, and that any
actions taken at that meeting or any other such improperly called meeting of the
congregation are held to have no binding effect.

"b. The Session be enjoined from calling any further congregational meeting for
the purpose of 'disaffiliating' from [PCUSA] or affiliating with another Reformed body,
or changing corporate documents to diminish the relationship of the corporation or the
congregation with [PCUSA].

"c. The Session be enjoined from spending congregational funds for
advancement of unconstitutional purposes; from selling, encumbering, or leasing real
property without expressed approval of the Presbytery (G-4. 026); and from permitting or
directing Trustees to perform these activities.

"d. The Session comply with duly issued directives of the Administrative
Commission."

Heartland Presbytery filed this action in district court seeking a judgment
declaring that the real and personal property of the PCOS is held in trust for the use and
benefit of the PCUSA. The Presbytery also sought to quiet title to the property in favor of
the members of the staying faction who desire to maintain affiliation with the PCUSA. In
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response, a counterclaim was filed on behalf of the members of the leaving faction
seeking similar relief. Throughout the pretrial stage of the lawsuit, the two factions
continued to share the church property. However, worship services and other activities
were conducted separately.

The district court held a 2-day bench trial beginning on June 2, 2015. At trial, the
parties stipulated to the admission of 350 exhibits. In addition, Heartland Presbytery
offered the testimony of two lay members of the PCOS who are part of the staying
faction, a member of the Administrative Commission appointed by Heartland Presbytery,
and the Executive Presbyter of Heartland Presbytery.

The Executive Presbyter, the Reverend Charles Spencer, testified regarding the
position of the PCUSA relating to the property owned by local congregations:

"It is the nature of our denomination that property is understood to belong not to
any particular people, but to the whole church, all generations. And in order to protect the
present interest in that, we want to make sure that loans are appropriate and safe and
secure. And so in order to be good shepherds and stewards of the denomination's interest
in a church property, all loans must be approved by the presbytery."

Reverend Spencer also explained the system of adjudicating disputes within the
PCUSA:

"All governing bodies above the session have a permanent judicial commission
that deals with issues of discipline within the church. They handle two types of cases:
One [is] called remedial cases, those cases in which some governing body has acted with
some irregularity or deficiency; and then the other is disciplinary cases and that is where
an individual is perceived to have acted in some way contrary to scripture [or] the Book
of Confessions.

....

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 "Governing bodies of the Presbyterian Church are required to conduct their
business in accord with the constitution of the church and the terms of the Book of Order.
And if you fail to do something that you're required to do, it's a delinquency. If you do
something you are prohibited from doing, it is an irregularity."

He further testified regarding the PCUSA's internal appeal process:

"[F]irst of all, depending on what the decision is and at what time you raise an objection,
you can ask [the] permanent judicial commission to review the work. You can also
appeal to the permanent judicial commission of the synod, and if you were displeased
with a decision there, you could appeal to the permanent judicial commission of the
general assembly."

In their defense, the leaving faction offered the testimony of Reverend
Laverentz—who was no longer a member of the PCUSA or the PCOS—and three lay
members of the PCOS. Reverend Laverentz testified that it was not his intention to lead
the PCOS out of the PCUSA when he became its senior pastor in 2007. By the summer of
2014, however, he had decided that it would be preferable to have the PCOS join another
denomination. He candidly admitted that the Book of Order did not allow a congregation
to unilaterally withdraw from the PCUSA without approval of the Presbytery. Moreover,
he recognized that not all of the members of the PCOS wanted the congregation to
withdraw from the PCUSA.

On July 15, 2015, the district court issued a comprehensive 40-page memorandum
decision, including 85 findings of fact. In the memorandum decision, the district court
analyzed the limited role of the courts in church-related property disputes. The district
court then examined the two primary approaches to resolving church property disputes
approved by the United States Supreme Court—the hierarchical deference approach and
the neutral-principles approach. As noted by the district court, the hierarchical deference
approach, which was first articulated by the United States Supreme Court in Watson v.
Jones, 80 U.S. 679, 728, 20 L. Ed. 666 (1871), provides that when a church property
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dispute has been resolved by the highest judicatory tribunal of a hierarchical church, civil
courts must accept such a decision as final and binding. On the other hand, the neutral-
principles-of-law approach, which was approved as an alternative option for resolving
church property disputes in Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775
(1979), provides that civil courts should examine the documents relating to property
rights and apply them in a purely secular manner. 443 U.S. at 603-04.

The district court applied the neutral-principles approach to conclude that the
PCOS did not hold its property in trust for the use and benefit of the PCUSA. Next, the
district court turned to the question of which of the two factions within the PCOS was
entitled to control the congregation's property in light of the schism. To answer this
question, the district court applied the hierarchical deference approach, finding that this
approach had been utilized by Kansas courts in resolving church property disputes for
many years. In addition, the district court noted that the 2013 Kansas Legislature had
expressly rejected a bill that would have required Kansas courts to abandon the principle
of hierarchical deference for a neutral-principles approach in cases involving competing
claims to church property. Ultimately, the district court decided that it must defer to the
decision of a tribunal of the Heartland Presbytery that the members of the faction desiring
to continue the congregation's longstanding affiliation with the PCUSA are entitled to the
property of the PCOS.

After the appellants filed a notice of appeal on behalf of the leaving faction,
Heartland Presbytery filed a notice of cross-appeal in which it alleged that the district
court erred in failing to find that the PCOS held its property in trust for the PCUSA. Two
days later, the three named trustees voluntarily resigned as members of the PCOS.
Moreover, while this case was pending on appeal, the parties filed several motions with
this court. One of the motions sought the dismissal of this appeal on the ground that the
leaving faction had acquiesced in the district court's judgment. This motion was assigned
to our court's three-judge motions panel, which considers motions filed in cases on appeal

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that have not yet been assigned to a panel for final decision. Although the motions panel
denied the motion to dismiss, the parties were directed "to brief any jurisdictional issues,
including acquiescence, for the panel assigned to hear the merits of this appeal."

ANALYSIS

Issues Presented

On appeal, there are three primary issues presented. First, whether we should
dismiss this appeal because the appellants acquiesced to the district court's judgment
regarding the disputed church property. Second, whether the district court appropriately
applied the principle of hierarchical deference in deferring to Heartland Presbytery's
decision that the members who desire for the congregation to maintain its affiliation with
the PCUSA are entitled to the PCOS's property. Third, whether Kansas courts should
abandon the hierarchical deference approach in resolving church property disputes arising
out of a schism in favor of a neutral-principles approach.

Acquiescence and Waiver of Right to Appeal

At the outset, we note that both of the competing factions claim they have the
authority to represent the PCOS in this appeal. On the one hand, the appellants—three
former trustees of the PCOS who are part of the leaving faction—contend that they
continue to represent the interests of the congregation. On the other hand, the staying
faction contend that they represent the interests of the congregation. In addition,
Heartland Presbytery—who initially filed this action in the district court—not only seeks
to protect the interests of the PCUSA but also advocates on behalf of the staying faction.

Both Heartland Presbytery and the staying faction contend that the appellants have
waived their right to appeal by acquiescing to the district court's judgment. Specifically,
they argue that the three former trustees of the PCOS who are the appellants in this

16
appeal acquiesced to the district court's judgment by voluntarily relinquishing their
memberships in the PCOS—and by helping to start a new congregation affiliated with a
different denomination—after the notice of appeal was filed. In response, the appellants
argue that although "at first blush" their actions may appear to be inconsistent with their
challenge to the district court's judgment, they did not intend to abandon their claims
relating to the property owned by the PCOS. Rather, the appellants argue that they felt
compelled in good conscience to renounce their ecclesiastical association with the PCOS
in light of its continuing affiliation with the PCUSA following the district court's
judgment.

The acquiescence doctrine establishes that parties who voluntarily accept the
benefit or burden of a judgment lose their right to appeal. Alliance Mortgage Co. v.
Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006); see Hemphill v. Ford Motor Co., 41
Kan. App. 2d 726, 728, 733, 206 P.3d 1 (2009). "'The gist of acquiescence sufficient to
cut off a right to appeal is voluntary compliance with the judgment.'" Varner v. Gulf Ins.
Co., 254 Kan. 492, 494, 866 P.2d 1044 (1994) (quoting Younger v. Mitchell, 245 Kan.
204, Syl. ¶ 1, 777 P.2d 789 [1989]). Parties waive their right to appeal only if their
actions "'"clearly and unmistakably show an inconsistent course of conduct or an
unconditional, voluntary and absolute acquiescence."' [Citations omitted.]" Uhlmann v.
Richardson, 48 Kan. App. 2d 1, 17, 287 P.3d 287 (2012).

"Because acquiescence involves jurisdiction, the matter raises a question of law
subject to our unlimited review." Alliance Mortgage Co., 281 Kan. at 1271; see Cypress
Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). Whether a
party intends to waive his or her legal rights, however, depends on the facts. Varner, 254
Kan. at 497. Furthermore, "it is generally the rule that a waiver is not implied from
[postjudgment] measures taken by an appellant in defense of and to protect his [or her]
rights or interest." McDaniel v. Jones, 235 Kan. 93, 104, 679 P.2d 682 (1984); see also
Bank IV Wichita v. Plein, 250 Kan. 701, 709, 830 P.2d 29 (1992) (postjudgment

17
protective measures taken in the event that the appellate court might affirm the judgment
did not waive right to appeal).

In arguing that the appellants acquiesced in the district court's judgment, Heartland
Presbytery and the staying faction rely on Simpson v. Mullineaux, 188 Kan. 139, 141, 360
P.2d 893 (1961). In Simpson, the Kansas Supreme Court found: "It is well settled law
that members of a church may not voluntarily withdraw and then endeavor to claim some
right in the church property." 188 Kan. at 141. However, it is important to note that
Simpson did not involve an issue of acquiesce in a district court's judgment. Instead, the
members of the congregation who sought to partition church property in Simpson had
already left and resigned their memberships before filing their lawsuit.

Although Simpson is one of many Kansas cases that speak to the issue of which
faction should be entitled to control church property following a schism, we find it to
provide little—if any—guidance on the issue of acquiescence. In the present case, it is
undisputed that the appellants were still members of the PCOS at the time the lawsuit was
filed, and they continued to be members of the congregation for a short period after filing
this appeal. Likewise, the appellants in this case have consistently maintained a good
faith argument that Kansas law relating to church property disputes should be changed
and that the will of the majority of the members—now former members—who voted to
disaffiliate from the PCUSA should prevail.

As recognized in Simpson, the First Amendment to the United States Constitution
and Section 7 of the Kansas Constitution Bill of Rights protect the right of all people—
including the appellants—"to go to the church of their choice, or to leave such church."
188 Kan. at 142. As such, even though we find this issue to be a close call, we do not find
that the actions of the appellants demonstrate that they have unconditionally, voluntarily,
and absolutely acquiesced in the district court's judgment. Rather, we find that the actions
taken by the appellants following the filing of their notice of appeal can reasonably be

18
classified as measures taken to protect their right to continue to worship according to the
dictates of their own consciences in the event that we affirm the district court's judgment.
Thus, we conclude that the appellants did not waive their right to appeal.

Law Applicable to Church Property Disputes in Kansas

The First Amendment to the United States Constitution states, in part: "Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof." Similarly, Section 7 of the Kansas Constitution Bill of Rights states, in part, that
"[t]he right to worship God according to the dictates of conscience shall never be
infringed; nor shall any person be compelled to attend or support any form of worship;
nor shall any control of or interference with the rights of conscience be permitted . . . . "
Accordingly, "[t]he law knows no heresy, and is committed to the support of no dogma,
the establishment of no sect." Watson v. Jones, 80 U.S. at 728.

"[T]he First Amendment 'permit[s] hierarchical religious organizations to establish
their own rules and regulations for internal discipline and government, and to create
tribunals for adjudicating disputes over these matters.'" Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC, 565 U.S. 171, 187, 132 S. Ct. 694, 181 L. Ed. 2d
650 (2012) (Hosanna-Tabor) (quoting Serbian Orthodox Diocese v. Milivojevich, 426
U.S. 696, 724, 96 S. Ct. 2372, 49 L. Ed. 2d 151 [1976]). Moreover, "civil courts are
bound to accept the decisions of the highest judicatories of a religious organization of
hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical
rule, custom, or law." 426 U.S. at 713.

"The jurisdiction of the courts to address matters involving church affairs is
limited." Church of God in Christ v. Board of Trustees, 26 Kan. App. 2d 569, 572, 992
P.2d 812 (1999) (New Jerusalem). Where a local congregation affiliates with a
denomination in conformity with the rules constituting the ecclesiastical law of that

19
church body, "'the right of dominion, control and disposal of church property . . . is
governed by church law.'" In re Testamentary Trust of Keys, 40 Kan. App. 2d 503, 515,
193 P.3d 490 (2008) (quoting United Brethren, Etc. v. Mount Carmel Community
Cemetery Ass'n, 152 Kan. 243, Syl. ¶ 1, 103 P.2d 877 [1940]). Thus, in cases involving
disputes over the ownership or control of church property, civil courts will take
jurisdiction only "'to assure the regularity of business practices and the right of private
use and ownership of property.'" Keys, 40 Kan. App. 2d at 515-16 (quoting New
Jerusalem, 26 Kan. App. 2d 569, Syl. ¶ 2).

a. Principle of Hierarchical Deference

Here, the district court applied the principle of hierarchical deference in ultimately
ruling in favor of the faction of members who desired for the PCOS to maintain its
affiliation with the PCUSA. The United States Supreme Court established this legal
principle in Watson v. Jones, 80 U.S. at 727. Specifically, the Supreme Court held:

"The right to organize voluntary religious associations to assist in the expression and
dissemination of any religious doctrine, and to create tribunals for the decision of
controverted questions of faith within the association, and for the ecclesiastical
government of all the individual members, congregations, and officers within the general
association, is unquestioned. All who unite themselves to such a body do so with an
implied consent to this government, and are bound to submit to it. But it would be a vain
consent and would lead to the total subversion of such religious bodies, if any one
aggrieved by one of their decisions could appeal to the secular courts and have them
reversed." 80 U.S. at 728-29.

In Watson, the United States Supreme Court also distinguished between two types
of church property disputes—those involving "a strictly congregational or independent"
church organization and those involving a congregation that is part of a "hierarchical"
denomination or church body. 80 U.S. at 724-26. In cases involving a schism in an
independent or nondenominational congregation, the Supreme Court held that "the rights

20
of such bodies to the use of the property must be determined by the ordinary principles
which govern voluntary associations." 80 U.S. at 725. In cases involving a schism within
a congregation affiliated with a hierarchical denomination, however, the Supreme Court
held that civil courts "are bound to look at the fact that the local congregation is itself but
a member of a much larger . . . religious organization, and is under its government and
control, and is bound by its orders and judgments." 80 U.S. at 726-27.

It is important to recognize that rarely—if ever—do disputes over the ownership
or control of church property arise in a secular vacuum. As in the present case, disputes
between factions over who has the right to control a local congregation's property
frequently arise out of an underlying disagreement regarding issues relating to theological
or internal church polity. See Watson, 80 U.S. 679 (church property dispute arose out of
theological dispute over the issue of slavery); Kedroff v. St. Nicholas Cathedral, 344 U.S.
94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952) (church property dispute arose over
conflicting claims between archbishops over use of cathedral); Serbian Orthodox
Diocese, 426 U.S. at 724-25 (church property dispute arose out of the removal of a
bishop). Thus, where church property disputes have been presented to and decided by
church tribunals of a hierarchical denomination, the United States Supreme Court has
found it to be appropriate for civil courts to "accept such decisions as final, and as
binding on them, in their application to the case before them." 80 U.S. at 727.

We note that the United States Supreme Court decided Watson before the First
Amendment was applied to the States through the Fourteenth Amendment. Likewise, it
was decided prior to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188
(1938), in which the Supreme Court found that there was no federal common law and that
federal courts must apply the law of the state. Nevertheless, we note that the Supreme
Court has since indicated on numerous occasions that the principle of hierarchical
deference announced in Watson is rooted in the First Amendment Religion Clauses and is
applicable to the States through the Fourteenth Amendment. See Serbian Orthodox

21
Diocese, 426 U.S. at 710-11; Presbyterian Church v. Hull Church, 393 U.S. 440, 447-48,
89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Kedroff, 344 U.S. at 116. Likewise, we note that
Kansas courts have recognized the principle of law set forth in Watson for many years.
See United Brethren, etc., v. Mount Carmel Community Cemetery Ass'n, 152 Kan. 243,
247, 103 P.2d 877 (1940)(quoting Watson, 80 U.S. at 680, when stating: "'In such cases
where the right of [church] property . . . is dependent on the question of doctrine,
discipline, ecclesiastical law, rule, or custom, or church government, the civil court will
accept that decision as conclusive, and be governed by it in its application to the case
before it.").

More than 135 years ago, the Kansas Supreme Court found that "[a] person who
voluntarily joins a church, and tacitly at least agrees to be bound by all rules and
regulations of such church, cannot afterwards be allowed to wholly ignore and disregard
such rules and regulations." Venable v. Baptist Church, 25 Kan. 177, 182 (1881).
Moreover, in Jackson v. Jones, 130 Kan. 488, 491, 287 P. 603 (1930), our Supreme Court
held that

"'[t]he separation or secession of part of the members from a church does not . . . lessen
the rights of those adhering to the organization . . . and the courts, when called upon, will
award the property . . . to those who continue to adhere to the doctrine, tenets, and rules
of the church as they existed before the division.'"

Similarly, in Hughes v. Grossman, 166 Kan. 325, Syl. ¶ 3, 201 P.2d 670 (1949),
our Supreme Court concluded that "[a]s a general rule a schism in a church does not
destroy the church's identity nor lessen the rights of individual members adhering to its
original doctrine, tenets and rules before the division." See also Simpson, 188 Kan. at 141
("When it can be decided by church law or ecclesiastical hierarchy which group
represents the true doctrine of the church, that group will receive the whole of the church
property."); Whipple v. Fehsenfeld, 173 Kan. 427, 432, 249 P.2d 638 (1952) (quoting
Hughes, 166 Kan. 325, Syl. ¶ 4, stating: "'When a schism occurs in a church the . . .
22
question is which of the rival factions adheres to the . . . original tenets, beliefs, rules and
practices of the organization and . . . the civil courts when called upon will award the
church property to those who continue to adhere thereto.'"); accord Church of God in
Christ, Inc. v. Stone, 452 F. Supp. 612, 616 (D. Kan. 1976).

More recently, the Kansas Supreme Court explained the principle of hierarchical
deference in Kennedy v. Gray, 248 Kan. 486, 807 P.2d 670 (1991), as follows:

"The First and Fourteenth Amendments permit hierarchical religious
organizations to establish their own rules and regulations for internal discipline and
government and to create tribunals for adjudicating disputes over these matters. When
this choice is exercised and ecclesiastical tribunals are created to decide disputes over the
government and direction of subordinate bodies, the Constitution requires that civil courts
accept tribunal decisions as binding upon the courts." 248 Kan. 486, at Syl. ¶ 3.

Although Kennedy did not involve a dispute over church property, our Supreme
Court analyzed the different rules that apply when a congregation is affiliated with a
hierarchical church "with a governing body, set rules of procedure, and an internal
appeals procedure" as opposed to a congregational or nondenominational church "in
which the congregation makes all decisions by a majority vote." 248 Kan. at 493. In a
hierarchical church, our Supreme Court found that deference should be given to the
highest church body to which an issue has been presented. 248 Kan. at 493 (citing
Serbian Orthodox Diocese, 426 U.S. at 708-09). On the other hand, in a congregational
or nondenominational church, our Supreme Court found that secular principles of law
that are "applicable to public and private lay organizations and to civil governments as
well" should be applied. 248 Kan. at 494.

Similarly, in New Jerusalem, 26 Kan. App. 2d at 573, our court found that "[w]hen
a local religious organization has acquired property through the contributions and
sacrifices of many members, past and present, all of who have adhered to certain

23
doctrines . . . [of] a particular national denomination, no faction may be permitted to
divert the church property to another denomination . . . ." Moreover, we have held that
"[n]either state nor federal courts may undertake the resolution of quintessentially
religious controversies, whose resolution the First Amendment commits exclusively to
the highest ecclesiastical tribunals of the Church." Church of God in Christ, Inc. v. Board
of Trustees, 47 Kan. App. 2d 674, Syl. ¶ 4, 280 P.3d 795 (2012). Thus, we find that
where a dispute over the control of church property arises out of a schism within a
congregation that is affiliated with a hierarchical denomination and a decision regarding
the issue has been made by the highest tribunal of that denomination to which the issue
has been presented, civil courts are to accept the decision of the tribunal as binding.

Furthermore, we find that civil courts can apply the principle of hierarchical
deference in such cases by answering the following straightforward questions from a
purely secular perspective:

 First, was the congregation affiliated with a hierarchical church body or
denomination prior to the schism?

 Second, does the hierarchical church body or denomination have its own
rules and procedures for the resolution of property disputes arising out of a
schism?

 Third, has there been a determination of the property dispute by the highest
tribunal of the hierarchical church body or denomination to which the issue
has been presented?

If the answers to each of these questions is in the affirmative, then a civil court
must accept the decision of the church tribunal as binding.

24
 In the present case, it is undisputed that the PCOS has a longstanding affiliation
with the PCUSA, which is a hierarchical church body. It is also undisputed that the
PCUSA has its own internal rules and procedures regarding how a local congregation can
terminate or sever its affiliation with the denomination. See Book of Order, Section G-
4.0207. These internal rules and procedures also discuss how to determine which faction
of members should be entitled to the congregation's property in the event of a schism. See
Book of Order Section G-4.0207. Likewise, it is undisputed that on September 10, 2014,
the Administrative Commission of the Heartland Presbytery determined that there was a
schism within the membership of the PCOS and declared that those members of the
congregation who desire to continue the PCOS's affiliation with the PCUSA are entitled
to the congregation's property.

Furthermore, the Permanent Judicial Commission of the Heartland Presbytery
affirmed the decision of the Administrative Commission following a hearing held on
November 13, 2014. As indicated above, the Permanent Judicial Commission expressly
concluded:

 "The action of the Session to call a congregational meeting for October 5, 2014,
for the purpose of 'disaffiliation' is found to have been irregular, and that any
actions taken at that meeting or any other such improperly called meeting of the
congregation are held to have no binding effect."

 "The Session be enjoined from calling any further congregational meeting for the
purpose of 'disaffiliating' from [PCUSA] or affiliating with another Reformed
body, or changing corporate documents to diminish the relationship of the
corporation or the congregation with [PCUSA]."

 "The Session be enjoined from spending congregational funds for advancement
of unconstitutional purposes; from selling, encumbering, or leasing real property
without expressed approval of the Presbytery (G-4. 026); and from permitting or
directing Trustees to perform these activities."

25
  "The Session comply with duly issued directives of the Administrative
Commission."

We, therefore, conclude that the district court properly applied the principle of
hierarchical deference in this case. In particular, we conclude that the district court
appropriately deferred to the decision of Heartland Presbytery regarding which faction of
members within the PCOS should be entitled to the congregation's property as a result of
the unfortunate schism that has developed.

b. Neutral-Principles Approach

The appellants contend that Kansas should abandon the principle of hierarchical
deference and replace it with some form of the neutral-principles approach as allowed in
Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979). In Jones v. Wolf,
which was a 5-4 decision of the United States Supreme Court, the majority held that
using a neutral-principles approach in resolving church property disputes does not violate
the First Amendment. 443 U.S. at 603-04. It is important to recognize, however, that the
majority did not overrule Watson v. Jones, 80 U.S. 679, nor did it mandate the use of the
neutral-principles approach by state courts in church property disputes. Instead, the
majority in Jones v. Wolf expressly found that "'a State may adopt any one of various
approaches for settling church property disputes'" so long as it does not violate the First
Amendment. 443 U.S. at 602; see also Heartland Presbytery v. Gashland Presbyterian
Church, 364 S.W.3d 575, 589-90 (Mo. App. 2012) ("[T]he First Amendment does not
dictate that a State must follow a particular method of resolving church property
disputes.").

In approving the neutral-principles approach as an option to be used in resolving
church property disputes, the majority in Jones v. Wolf acknowledged that civil courts
may still be required "to examine certain religious documents" in attempting to determine

26
the intent of the parties. 443 U.S. at 604. Furthermore, the majority recognized that when
religious concepts are incorporated into documents such as a deed, a corporate charter, or
the constitution of the general church, courts must "defer to the resolution of the doctrinal
issue by the authoritative ecclesiastical body." 443 U.S. at 604 (citing Serbian Orthodox
Diocese, 426 U.S. at 709). Unfortunately, although the majority approved the neutral-
principles approach in theory, it gave little guidance on how it should actually be applied
and, instead, remanded the case to the Georgia Supreme Court for application. 443 U.S.
at 606-08.

Writing for the four dissenting justices in Jones v. Wolf, Justice Lewis F. Powell,
Jr., cautioned that if a state court disregards a decision of the highest tribunal within a
hierarchical church body regarding which faction is entitled to control a congregation's
property following a schism, it "effectively will have reversed the decisions of doctrine
and practice made in accordance with church law." 443 U.S. at 613. According to the
dissent, "[t]his indirect interference by the civil courts with the resolution of religious
disputes within the church is no less proscribed by the First Amendment than is the direct
decision of questions of doctrine and practice." 443 U.S. at 613. Finally, the dissent
cautioned that those who "depart from Watson v. Jones . . . will travel a course left totally
uncharted by this Court." 443 U.S. at 616.

We note that as recently as 2012, a unanimous United States Supreme Court cited
Watson v. Jones favorably in its Hosanna-Tabor opinion. 565 U.S. at 185-86. In
Hosanna-Tabor, the Supreme Court held that an employment disability law could not be
enforced against a hierarchical church body for terminating a minister. 565 U.S. at 196.
In reaching this conclusion, the Supreme Court looked to Watson and its progeny for
guidance, finding that these decisions involving disputes over church property "confirm
that it is impermissible for the government to contradict a church's determination of who
can act as its ministers." 565 U.S. at 185-87 (citing Watson, 80 U.S. 679; Kedroff, 344
U.S. 94; and Serbian Orthodox Diocese, 426 U.S. 696).

27
 Significantly, the Hosanna-Tabor court reiterated that Watson "'radiates . . . a
spirit of freedom for religious organizations, an independence from secular control or
manipulation—in short, power to decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine.'" 565 U.S. at 186
(quoting Kedroff, 344 U.S. at 116). Interestingly, the Supreme Court did not mention the
Jones v. Wolf opinion in Hosanna-Tabor. Although we will not speculate as to the reason
for this omission, it seems clear that the United States Supreme Court has not abandoned
the principle of hierarchical deference as a constitutionally sound way for state courts to
resolve disputes arising within a hierarchical denomination.

Of course, both the district court and this court are "duty bound to follow Kansas
Supreme Court precedent, absent some indication the court is departing from its previous
position." See Hoesli v. Triplett, Inc., 303 Kan. 358, 360, 361 P.3d 504 (2015); State v.
Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128 (2015). In the more than 37 years since
Jones was decided, we cannot find any appellate cases in which a neutral-principles
approach has been applied in resolving a dispute over church property rights arising out
of a schism within a congregation affiliated with a hierarchical denomination. Moreover,
we do not find any indication that our Supreme Court desires to repudiate the principle of
hierarchical deference that has served the citizens of Kansas well for many years.

Although the appellants rely on Gospel Tabernacle Body of Christ Church v.
Peace Publishers & Co., 211 Kan. 420, 506 P.2d 1135 (1973), there is nothing in the
decision that would indicate that Gospel Tabernacle was affiliated with a hierarchical
denomination. Rather, the congregation is described as an unincorporated organization.
211 Kan. at 421. Furthermore, the case did not involve a dispute between factions within
the church over property but involved the issue of whether the congregation's former
minister had the right to transfer church property without authorization from the members
of the congregation. 211 Kan. at 422.

28
 The appellants also cite Purdum v. Purdum, 48 Kan. App. 2d 938, 301 P.3d 718
(2013), in support of their argument. In Purdum, the majority held that the First
Amendment precludes a civil court from exercising jurisdiction over the subject matter of
a defamation action arising out of statements allegedly made during an ecclesiastical
annulment proceeding in the Roman Catholic Church. As such, Purdum did not involve a
dispute over church property. Although the majority in Purdum cited Jones v. Wolf, 443
U.S. at 595, for the premise that excessive entanglement between church and state
violates the Establishment Clause of the First Amendment, it also cited Watson v. Jones,
80 U.S. at 679, for the proposition that the First Amendment gives churches the freedom
to govern themselves without interference from civil courts. 48 Kan. App. 2d at 948, 951.

In addition, as noted by the district court in its memorandum decision, the Kansas
House of Representatives defeated H. Substitute for S.B. No. 18 (2013 Session). This bill
would have required Kansas courts to apply the neutral-principles approach to church
property disputes, including those arising out of a decision by a majority of members to
have a congregation to terminate its affiliation with a hierarchical denomination.
Although the bill was reintroduced in the 2015 legislative session as H.B. No. 2161, this
legislation died in the House Judiciary Committee. Thus, it appears that the Kansas
Legislature is satisfied with Kansas courts continuing to apply the principle of
hierarchical deference to resolve church property disputes arising out of a schism in a
congregation affiliated with a hierarchical church body or denomination.

c. Strict v. Hybrid Neutral-Principles Approaches

We recognize that after Jones was decided in 1979, a majority of states chose to
adopt some form of a neutral-principles approach in resolving church property disputes
while a minority of states continue to follow the hierarchical deference approach. See
Hope Presbyterian Church of Rogue River v. Presbyterian Church (U.S.A.), 352 Or. 668,
684 & n.3, 291 P.3d 711 (2012). Of those states that have adopted a neutral-principles

29
approach, we note that some apply a "strict" neutral-principles approach in which only
secular documents are reviewed. Others, however, follow a "hybrid" neutral-principles
approach in which church documents are reviewed in addition to secular legal
documents. See Episcopal Church in Diocese of Connecticut v. Gauss, 302 Conn. 408,
425 n.11, 28 A.3d 302 (2011).

If Kansas were to adopt a neutral-principles approach, we believe that a "hybrid"
approach would be more consistent with the requirements of the Religion Clauses of the
First Amendment as well as Section 7 of the Kansas Constitution Bill of Rights.
Moreover, we believe that reviewing all of the relevant documents—including church
documents—from a secular perspective is the best way for a civil court to determine the
intent of the parties. As indicated above, the majority in Jones acknowledged that even
under a neutral-principles approach, civil courts may still be required to examine certain
religious documents—such as a church constitution—in a secular manner in attempting
to determine the intent of the parties prior to a schism. 443 U.S. at 604.

We find the Georgia Supreme Court's opinion in Presbytery of Greater Atlanta,
Inc. v. Timberridge Presbyterian Church, Inc., 290 Ga. 272, 719 S.E.2d 446 (2011), to be
helpful in our review of the present case. The Timberridge opinion is particularly
significant because it was the Georgia Supreme Court that adopted the neutral-principles
approach in Jones that was reviewed by the United States Supreme Court. Jones, 433
U.S. at 600. Moreover, we find the Timberridge opinion to be significant to the present
case because it also involves a dispute over the control of church property of a local
congregation seeking to end its longstanding relationship with the PCUSA. 290 Ga. at
272.

In Timberridge, the Georgia Supreme Court applied a hybrid neutral-principles
approach—reviewing the deeds, local church documents, and national church documents
from a secular perspective to determine the intent of the parties. 290 Ga. at 276-77. The

30
court found "the absence of language in the deeds creating a trust in favor of the national
church [to be] of limited value" and turned to a review of other relevant documents. 290
Ga. at 277. In doing so, the court noted that the majority in Jones had specifically
suggested that "'the constitution of the general church can be made to recite an express
trust in favor of the denominational church'" and that "'[t]he burden involved in taking
such steps will be minimal.'" 290 Ga. at 280 (quoting Jones, 443 U.S. at 606).

The Georgia Supreme Court recognized that a trust relationship may be
established by deeds or other secular legal documents. However, it found that such a
relationship "may also be [established] through the national church's constitution, for
example, by making it 'recite an express trust.'" 290 Ga. at 280-81 (quoting Jones, 443
U.S. at 606). To hold otherwise, the court reasoned, would place an "immense" burden on
both hierarchical denominations and local congregations. 290 Ga. at 281.

The Timberridge court noted that the congregation—just like the PCOS—had
"joined the PCUSA when the reunited church was established in 1983." 290 Ga. at 284.
At that time, "the PCUSA's governing constitution plainly stated that local churches hold
their property in trust for the use and benefit of the general church." 290 Ga. at 284.
Accordingly, the Georgia Supreme Court found that by "affiliating with the PCUSA in
1983 with the trust provision already in the [PCUSA's] governing constitution
demonstrated that Timberridge assented to that relinquishment of its property rights" and
that the congregation's "continued membership in the PCUSA, for nearly a quarter of a
century in all, with the trust provision always in full effect, further bolsters this
conclusion." 290 Ga. at 284-85.

The Georgia Supreme Court noted in Timberridge that unlike Jones in which the
church documents did not mention property issues, the PCUSA's documents specifically
included trust language as well as the procedure for resolving church property disputes
arising out of a schism. 290 Ga. at 287 (citing Jones v. Wolf, 244 Ga. 388, 389-90, 260

31
S.E.2d 84 [1979]). The court found that its decision did not merely rest on the
relationship between the PCUSA and the local congregation but also "derives from the
specific language of the governing documents adopted by the local and general
churches . . . ." 290 Ga. at 287-88. Thus, in determining that the local congregation held
the property in trust for the PCUSA, the Georgia Supreme Court concluded that
"[a]pplying the neutral principles with an even hand, we simply enforce the intent of the
parties as reflected in their own governing documents; to do anything else would raise
serious First Amendment concerns." 290 Ga. at 287.

In the present case, the PCOS also affiliated with the PCUSA in 1983 and
continued to maintain this affiliation for more than 30 years before the schism occurred.
As noted by the Georgia Supreme Court, the language of the Book of Order already
provided by 1983 that the property of the PCUSA—including the property of its local
congregations—"is held in trust . . . for the use and benefit of the [PCUSA]." Moreover,
at the time the PCOS affiliated with the PCUSA, the Book of Order already contained a
provision providing that in the event of "a schism within the membership of a
congregation . . . the presbytery shall determine if one of the factions is entitled to the
property because it is identified by the presbytery as the true church within the
[PCUSA]." Thus, we conclude that this language set forth in the Book of Order—as
viewed from a secular perspective—should control regardless of whether the principle of
hierarchical deference or the neutral-principles approach is applied.

Express or Implied Trust Relationship

Heartland Presbytery contends on cross-appeal that the district court erred in
finding that the PCOS did not hold the church property in trust for the PCUSA. In
addition to citing to the language of the Book of Order, it also argues that under existing
Kansas case law "[a] continual, longstanding, and formal affiliation with a national
church is sufficient to support an implied trust in favor of the national church." Church of

32
God in Christ, Inc., 47 Kan. App. 2d 674, Syl. ¶ 13; see New Jerusalem, 26 Kan. App. 2d
at 580. Nevertheless, in light of our decision to affirm the district court's decision on the
grounds that it appropriately deferred to the determination by the highest tribunal of the
Heartland Presbytery to which the issue was presented, it is unnecessary for us to reach
this issue.

CONCLUSION

In 1983, the PCOS voluntarily joined the PCUSA, which is a hierarchical
organization. By doing so, the PCOS consented to be bound by the Constitution of the
PCUSA. The Book of Order—which is an integral part of the PCUSA's constitution—
expressly provides a procedure for the internal resolution of church property disputes
arising out of a schism within the membership of one of the PCUSA's congregations.
Here, it is undisputed that the highest ecclesiastical tribunal to which the issue was
presented determined that the members of the staying faction who desire for the PCOS to
continue its longstanding affiliation with the PCUSA are entitled to the disputed property.
Accordingly, although we respect the right of the members of the leaving faction to freely
exercise their religious beliefs, we conclude that it was appropriate for the district court to
defer to the tribunal's decision regarding the church property.

Affirmed.

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