Gertler v. Gertler, KY COA, Sole Custody, Classification Of Gifts


Gertler v. Gertler, 2008-CA-001367


Gertler v. Gertler, 2008-CA-001367

Issue:  Custody, gifts as marital or non-marital property

Published:   Affirming

County: Casey


Dad appealed from TC’s decree of dissolution, arguing that TC abused its discretion by awarding sole custody of parties’ four children to Mom and that TC erred in its determination that cash gifts from Dad’s parents during the marriage were marital property.



Mom and Dad married in 1996 and had four children.  The family followed an Amish-like lifestyle, using no modern conveniences, dressing in plain clothes that completely covered the body (including the head for the females), refusing to seek medical care, and adhering to the rule that the father made all decisions for the family.  During their marriage, Dad’s parents made three separate cash gifts, totaling $66,000, each time for the parties to purchase a new home.  In December 2007, Mom left Dad and filed Petition for Dissolution and Mom ultimately sought sole custody of children citing the parties’ inability to make joint decisions for the children due to Dad’s disbelief that Mom should be able to participate in those decisions.  After trial, TC ordered that Mom would have sole custody and found the cash gifts to be marital property. 



Cash gifts:

The party claiming nonmarital property has the burden of proving the nonmarital character of the property.  Property received by gift during the marriage may be nonmarital if it is proven that the property was intended by the donor as a gift to only one of the parties.  Per O’Neill, there are 4 factors to be considered in determining whether a gift was intended for one or for both parties:  the donor’s source of the funds; the intent of the donor at the time as to the intended use of the property; the status of the marriage relationship at the time of transfer; and whether the parties had agreed that the gift would be nonmarital.  The only contested factor here related to the donor’s intent.  At trial, both Dad and his parents testified that the cash gifts were meant for him alone, while Mom testified that they were meant for the family.  CA noted that while TC was to consider testimony regarding donor’s intent, the intent can also be inferred from surrounding circumstances and other words and actions of the donor, as well as conduct of the parties.  Other than the testimony of Dad and his parents, all other evidence pointed to the cash gifts as being intended for the family.  TC found that Dad failed to meet his burden of proof on this issue and CA found that TC did not clearly err in this decision. 


Dad argued that per Squires, TC could not require parties to have a “cooperative spirit” in order to grant joint custody, so awarding sole custody to Mom because of his failure of cooperation with her in decision-making was an abuse of discretion.  CA held that TC correctly looked to the future to predict whether parties would be able to co-parent and appropriately made its award on that basis.   

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  


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