Retroactive Best-Interest Analysis Inappropriate in Pre-Petition Relocation with Child; Poor Decision-Making Skills Proper Factor Under KRS 403.270; Tax Refund Received Before Separation Marital Property – Published Opinion from Ky. Court of Appeals

Dog in Moving Box

Gonzalez v. Dooley

Warren Circuit Court

Before Wife petitioned for divorce, Husband and Child relocated to Kansas City, Kansas, where Husband’s parents lived. Wife contended that Husband did not consult her about the relocation but rather that Husband had sent her a text message that he was going to look for employment and would return to Kentucky. Husband contended that he and Wife discussed moving to Kansas City where Husband could seek employment and be closer to Husband’s parents and hoped that Wife would join them in Kansas City.

Wife petitioned for dissolution of the marriage. Each party requested temporary joint custody of Child, and each requested to be named the primary residential parent. After a hearing, Family Court ordered temporary joint custody of Child, with Husband designated as the temporary primary residential parent. The parties later entered an agreed order for Wife to pay child support.

Family Court later held a final hearing and awarded joint custody of Child to the parties, designated Husband as the primary residential parent, ordered Wife to pay child support, ordered wife to pay Husband one-half of the parties’ 2015 joint income tax refund, and ordered Wife to pay Husband one-half of a credit card debt assigned to Husband. Wife appealed.

The Court of Appeals held that it would have been error for Family Court to consider a retroactive best-interest analysis regarding a pre-petition relocation. The relocation occurred before initiation of any proceedings and before any order affected the parties’ rights to joint custody afforded by KRS 405.021, which recognizes the right and liberty interest of parents to rear their children without government interference. These joint custody rights are exercised autonomously by the parents, and the decisions are presumed to be in the child’s best interest. There is no authority allowing a family court to rule on the propriety of a joint custodian’s relocation decision made before invocation of the court’s jurisdiction. An ex post facto, post-petition judicial determination rejecting the legal presumption that a joint custodian’s pre-petition decision is in a child’s best interest could constitute unconstitutional governmental interference.

The Court of Appeals held that there was no abuse of discretion in considering two incidents that exhibited Mother’s poor decision making regarding the child, where she left Child unattended, in her sight, at an amusement park so that she could ride bumper cars, and where she uploaded a picture of Child with very little clothing, lying on a bed, holding a rose. KRS 403.270(2) does not provide an exhaustive list of factors to consider in the best-interest analysis, and evidence of a parent’s decision-making skills impacts the analysis.

The Court of Appeals held that it was error for Family Court to conclude that Child should sleep in his own, separate bed throughout the night. Minor day-to-day decisions concerning the child will be made by the parent with whom the child is residing, and the family court should not interfere with minor decisions absent a finding that such decisions will endanger the child’s physical health or significantly impair the child’s emotional development in accordance with KRS 403.330.

The parties received a tax refund after filing their 2015 income tax return, of which Wife kept the entirety. Family Court ordered Wife to pay Husband half the refund, which had already been spent. The Court of Appeals held that whether the funds have been exhausted prior to the time of trial is irrelevant. It is important that it was based on the parties’ 2015 incomes and filed prior to separation, making it marital property to be divided. If Family Court found Wife had spent the money on marital obligations, Husband would not be entitled to half.

The parties incurred a debt from a cash advance from Husband’s credit card to give to Wife’s brother as a loan to buy an engagement ring. Husband made all the payments toward the debt since separation. Family Court found this to be marital debt and ordered Wife to pay half. The Court of Appeals affirmed. A finding that a debt is marital is within the trial court’s discretion, and there is no presumption that debt incurred during the marriage is marital. This debt was marital as it was used to benefit Wife’s immediate family member, Wife had knowledge of the loan, and did not dispute her agreement to loan the money. She actively participated in incurring the debt.

Digested by Nathan R. Hardymon

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