Refinace of marital home, entitlement to hearing despite agreement to follow therapist’s recommendations, Ky Court of Appeals


This matter came before the Court on two separate appeals involving the same parties.

The facts of the first appeal concern the marital residence. Pursuant to the parties’ Marital Settlement Agreement, Husband was to pay Wife $15,000.00 after he refinanced the marital home within 90 days. The agreement separately stated that if Husband was unable to refinance, the home would be placed for sale. When Husband did not refinance within 90 days, Wife filed a motion asking the Court to compel the sale of the marital home. Husband asked for additional time to refinance noting his attempts to refinance were frustrated by Wife’s actions. Ultimately, the family court granted Husband additional time to refinance, interpreting the refinance provision and the sale provision as two separate terms. Husband completed the refinance and payed Wife. Subsequent to receiving payment, Wife appealed.

Wife argued that the Court erred by allowing Husband additional time to refinance and interpreting the sale and refinance provisions as two separate agreements. The Court of Appeals disagrees, noting that the delays in refinance were caused by Wife, and holding that the family court properly interpreted the parties’ marital settlement agreement. Wife accepted the payment and therefore cannot now complain about the extension of time.

The second appeal concerns custody and parenting time. In settlement of a DNA action, Wife, who had no contact with children, entered into an agreement to stipulate to the recommendations of court-appointed psychotherapist. The recommendations provided to the Court opined that Mother did “not presently meet minimally adequate parental standards” and called for the children to be evaluated by another mental health professional. The children’s evaluation was subsequently provided to the court concluding reunification with Mother was not in the children’s best interests. Mother then moved the family court to revisit the issue and hold a hearing, which the court denied.

Mother appealed arguing she was entitled to an evidentiary hearing and the court should not have deferred to the experts. The Court of Appeals concludes that mother did stipulate to the expert recommendations, however, the Court holds that Mother should be given an evidentiary hearing to proffer proof that she has complied with therapist recommendation and that visitation would be in the children’s best interest.

Digested by Elizabeth M. Howell

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