Abel Monsivais Garcia v. Irma Briones Coronado

• Court: Court of Appeals of Kentucky
• Decided: March 9, 2023
• Docket: 2022 CA 000102
• Status: Unknown

Opinion

RENDERED: MARCH 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0102-MR

ABEL MONSIVAIS GARCIA APPELLANT

APPEAL FROM MCLEAN CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 20-CI-00076

IRMA BRIONES CORONADO APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: EASTON, JONES, AND LAMBERT, JUDGES.

EASTON, JUDGE: The Appellant (“Abel”) questions three decisions of the

McLean Circuit Court regarding division of marital property and custody of the

parties’ two minor children. First, Abel argues the circuit court erred in awarding

the Appellee (“Irma”) the marital residence. Second, he argues the circuit court

abused its discretion in its overall division of the marital property and debt. Third,

he argues the circuit court erred in determining Irma had overcome the presumption of equal parenting time and designating her as the primary residential

parent. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Abel and Irma were married in 2013 in McLean County,

Kentucky. They have two children, who are both still minors. They lived together

as a family in Island, Kentucky, until early 2020, when Abel moved to Mexico.

Abel said he thought Irma and the children would, at some point,

reunite with him in Mexico. The reunification of the family did not occur, and

Irma and the children had no face-to-face contact with Abel for approximately nine

months. Irma testified that she did not believe Abel was going to return, and she

never had any intention of joining him in Mexico, nor did she indicate that she

would. Abel did not provide any financial support to Irma or the children during

the time he was in Mexico.

In November 2020, Irma filed a petition for dissolution of

marriage. Irma requested sole custody of the two minor children and requested a

warning order attorney be appointed to notify Abel of the action, as his precise

whereabouts in Mexico were then unknown. At some point in November 2020,

Abel returned to Island, Kentucky. In December 2020, Irma filed an amended

petition, in which she requested child support and maintenance from Abel.

In late December 2020, the circuit court entered a temporary order

-2- awarding the parties joint custody of the children, with Irma designated as the

primary residential parent. The circuit court granted Abel six hours of supervised

visitation per week, based on Abel’s absence for most of the prior year, Irma’s fear

that Abel would flee with the children to Mexico, and the children’s reservations

about visiting with Abel.

Several motions were filed by both parties, and the circuit court held a

final hearing in August 2021. After the final hearing, but before the circuit court

had entered its ruling, Irma filed a motion to modify pendente lite orders in october

2021. In this motion, Irma asked the court to abate any parenting time of Abel

until further order because Abel had failed to exercise any of his visitation time

after the final hearing. Irma claimed Abel had not shown up for any of the eight

Sunday supervised visits.

The circuit court issued its opinion and order on October 26, 2021.

The circuit court granted the parties joint custody of their two children and

designated Irma as the children’s primary residential parent. The circuit court

additionally ordered Abel to pay $720.00 in child support each month, based on the

parties’ incomes. Abel was to be responsible for 60% of costs of reasonable and

necessary medical expenses for the children not covered by insurance.

The circuit court denied Irma’s request for maintenance. As for the

-3- division of property, the circuit court found that the parties’ marital property

included a mobile home and land in Island, Kentucky (the “marital residence”), a

2011 Ford Explorer, the 2020 tax refund, Irma’s retirement account, and at least

one bank account. The circuit court also found that Abel had been in possession of

a 2004 F-150 truck, which he had taken to Mexico but had returned without it.

The circuit court granted Irma the marital residence, at least in part

because she was named as the children’s primary residential parent. The circuit

court granted Irma the Explorer. The circuit court granted the entirety of the

refund of the 2020 taxes to Irma. Irma’s retirement account was to be divided

equally between the parties, and each party was awarded his or her bank account

and any funds therein as separate property, as well as any personal property they

had in their possession.

The circuit court identified certain marital debt subject to division.

Abel had tax liability for the years 2018 and 2019, which was assigned to Abel to

pay. There was a debt of $3,000 owed to Jose Crus Monsivais, which was the

outstanding balance of an $8,000 loan Abel received to pay for the expense of

passage back from Mexico into the United States. The circuit court assigned this

debt to Abel. There was outstanding medical debt with a balance of $1,220.38

owed to Owensboro Health for medical treatment for Irma and the children. The

circuit court assigned this debt to Irma.

-4- On November 3, 2021, Abel filed a motion to alter, amend, or vacate

the opinion and order of October 26, 2021. In this motion, Abel asked the court for

specific findings and fact and conclusions of law regarding the decision that Irma

had overcome the presumption of shared custody outlined in KRS1 403.270(2).

Abel additionally asserted the circuit court failed to divide the parties’ marital

property in just proportions as required by KRS 403.190. On November 22, 2021,

the circuit court issued a supplemental opinion and order, which outlined the

circuit court’s findings regarding its previous order.

This last order additionally addressed Irma’s motion regarding

parenting time and established a temporary alteration of parenting time for Abel.

Abel was to have the continued six hours of supervised visitation on Sundays

throughout November 2021. Beginning December 1, 2021, Abel was to have

unsupervised timesharing with the children each Sunday from noon to 6:00 p.m.

Beginning January 21, 2022, Abel was to have timesharing with the children

according to the circuit court’s standard timesharing/visitation schedule. This

order was to be temporary, for a period of six months, and was to become final at

that time unless another motion regarding custody or timesharing was brought

before the circuit court. On January 19, 2022, the circuit court issued an order

denying Abel’s motion to alter, amend, or vacate. This appeal follows.

1 Kentucky Revised Statutes. -5- MARITAL RESIDENCE

Abel argues the circuit court erred in awarding the marital residence

to Irma because the value of the property was unknown. Abel suggests the circuit

court should have either: a) obtained an expert to furnish a value or b) directed the

property be sold and the proceeds split between the parties. Abel claims because

the property’s value was unknown, the circuit court did not divide the marital

property in just proportion pursuant to KRS 403.190.

Property distribution awards in dissolution of marriage actions are

reviewed for abuse of discretion. McGregor v. McGregor, 334 S.W.3d 113, 118-

19 (Ky. App. 2011). “The test for an abuse of discretion is whether the trial

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound

reasonable principles.” Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App.

2013). Appellate review of a trial court’s factual findings is governed by the

clearly erroneous standard; factual determinations supported by substantial

evidence will not be disturbed. Truman v. Lillard, 404 S.W.3d 863, 868 (Ky. App.

2012). In evaluating abuse of discretion, this Court reviews legal conclusions

applied by the trial court de novo. Ehret v. Ehret, 601 S.W.3d 508, 511 (Ky. App.

2020).

The marital residence in question is a mobile home sitting on between

-6- one and two acres. There are no mortgages or other liens on the home or property.

Irma entered evidence the parties paid $12,000 for the mobile home when they

purchased it in 2013. She additionally provided evidence the property was

presently valued at $12,000 for tax purposes.

Abel testified he installed new siding, new floors, a new roof, and

remodeled the bathroom in the mobile home. While this may have increased the

value of the mobile home, Abel did not offer any evidence of the value added by

the improvements. Irma provided evidence of the home’s value. While Abel

objected to this evidence, he provided no evidence of his own to counter it. Abel

offered no evidence other than his assertions that the work he completed on the

home increased its value.

In Turley v. Turley, 562 S.W.2d 665, 667 (Ky. App. 1978), this Court

allowed the evidence that one party presented as to the value of a mobile home to

stand, when the opposing party offered no evidence at all. “This constituted all of

the evidence respecting the value of the mobile home and lot. Mrs. Turley offered

absolutely no evidence respecting the value of the mobile home and lot. With such

scanty proof as to the value of the lot and mobile home and with Mrs. Turley

having offered no evidence whatsoever as to value, we cannot find that the value

assigned by the trial court was clearly erroneous.” Id.

In Stewart v. Stewart, No. 2002-CA-002008-MR, 2004 WL 68528

-7- (Jan. 16, 2004),2 this Court affirmed the trial court’s findings of fact for the value

of a mobile home when it relied upon a PVA assessment: “the Court could have

relied on other evidence and could have reached a different finding. The fact that

it did not is not evidence of error, and this issue does not form a basis for

tampering with the order and judgment on appeal.” Id. at *2.

Abel’s counsel referenced Robinson v. Robinson, 569 S.W.2d 178,

180 (Ky. App. 1978), in her brief, as well as in her arguments during the hearing

on the motion to alter, amend, or vacate. The Court in Robinson held that lack of

evidence of the value of property in that case made it necessary for the trial court

to either obtain an expert or direct the property to be sold. In the present case, the

circuit court dealt with a mobile home and a lot with evidence of value provided.

Therefore, this Court finds that the circuit court did not abuse its discretion in

accepting Irma’s evidence of value of the mobile home and the lot upon which it

sat and considering this value when dividing marital assets.

“KRS 403.190(1) authorizes the trial court to allow the custodial

parent of a child to remain in the marital home.” Spratling v. Spratling, 720

S.W.2d 936, 938 (Ky. App. 1986). KRS 403.190(1) directs the trial court to divide

2 An unpublished opinion may be considered as permitted by Kentucky Rules of Appellate Procedure (“RAP”) 41. -8- the marital property in “just proportions.” Lawson v. Lawson, 228 S.W.3d 18, 21

(Ky. App. 2007). The law does not require an equal division of property. Id.

KRS 403.190 sets out several factors in considering the division of

marital property, including: “(a) Contribution of each spouse to acquisition of the

marital property, including contribution of a spouse as homemaker; (b) Value of

the property set apart to each spouse; (c) Duration of the marriage; and (d)

Economic circumstances of each spouse when the division of property is to

become effective, including the desirability of awarding the family home or the

right to living therein for reasonable periods to the spouse having custody of the

children.” KRS 403.190(1)(a)-(d). The trial court has wide discretion in dividing

marital property based upon a proper consideration of these factors, and an

appellate court should not disturb the trial court’s ruling on property division issues

unless it finds the trial court abused its discretion. Davis v. Davis, 777 S.W.2d

230, 233 (Ky. 1989).

The circuit court accepted Irma’s evidence that the value of the

mobile home with lot was $12,000 at the time of dissolution. It found that she had

paid all costs associated with the home during 2020, which included utilities,

insurance, property taxes, and any upkeep. Additionally, Irma was designated as

the primary residential parent of the children, and KRS 403.190(1)(d) specifically

lists a preference that a party who has custody of the children retain the family

-9- home. The circuit court did not abuse its discretion in its valuation of the property

or in granting the marital residence to Irma.

DIVISION OF MARITAL PROPERTY AND DEBT

Abel further contests the circuit court’s overall division of the parties’

marital property and debt. Their marital assets included the marital residence,

Irma’s pension, the 2011 Ford Explorer, the tax refund from the 2020 taxes, and

the parties’ individual bank accounts. Their debts included tax liability from 2018

and 2019, medical debt, and the remaining debt on a loan from Abel’s brother.

Again, “A trial court is to divide marital property in just proportions

considering all relevant factors. However, just proportions does not necessarily

mean equal proportions.” Croft v. Croft, 240 S.W.3d 651, 655 (Ky. App. 2007)

(citations omitted).

The circuit court granted Irma the marital residence, the Explorer, the

refund from the 2020 taxes, and her individual bank account. The circuit court

ordered Irma’s pension be split evenly between the parties. The circuit court also

found that the parties previously had a 2004 Ford F-150, but Abel left it behind in

Mexico. The circuit court did not require Abel to make any equity payment

regarding that vehicle to Irma. It also granted Abel his bank account and any

personal property of which he had possession. As for the debts, the circuit court

-10- ordered the tax liability and the remainder of the loan to his brother was to be

Abel’s responsibility, while the medical debt was to be Irma’s responsibility.

It was Irma’s testimony that in 2018, Abel refused to provide her with

his income information for tax purposes. Prior to that year, they had filed jointly.

However, once Abel refused to provide his information, Irma filed taxes

separately. It is undisputed that Abel was in Mexico for the majority of 2020, and

therefore all income reported on that year’s taxes was hers. The circuit court found

Abel provided no financial assistance to Irma throughout 2020. The tax liability

debt was Abel’s from his failure to file taxes in 2018 and 2019. It is a logical

decision for Abel to be responsible for that debt, and for Irma to be awarded the

2020 refund.

The Explorer was the vehicle that Irma used daily to take the children

where they needed to go and to get to and from her job. Irma showed evidence

that she alone applied for the loan for the Explorer, and she paid off the loan during

2020 when Abel was in Mexico. Payments for the vehicle were taken from her

bank account. This vehicle was clearly meant to be Irma’s vehicle. Despite not

having a valid U.S. driver’s license, Abel did previously own a 2004 F-150, which

he testified that he drove in Mexico, but did not return with it. Regardless of what

happened to the vehicle, the circuit court found that the vehicle was Abel’s. We do

not find that the circuit court abused its discretion in making this property division.

-11- Irma’s pension was to be split evenly between the parties. This is an

equitable distribution. The entire pension was accumulated during the marriage.

The circuit court ordered the medical debt of Irma and the children

was to be her sole responsibility in the division of the debt. The remaining debt is

a balance on a loan that Abel’s brother made to him to get back into the United

States. Abel was to be responsible for that debt.

Unlike assets, there is no presumption that debts incurred during the

marriage are marital. Maclean v. Middleton, 419 S.W.3d 755, 773 (Ky. App.

2014). The party claiming that a debt is marital in nature has the burden of proof.

Id. In making this determination, the circuit court should consider several factors,

such as receipt of benefits, extent of participation, whether the debt was incurred to

purchase marital assets, whether the debt was necessary to provide for the family,

and the parties’ economic circumstances. Id. In this case, Abel’s loan from his

brother was not marital in nature. Abel alone decided to go to Mexico, and he

alone decided taking a loan from his brother to come back into the country

(illegally) was the best way to return. The circuit court did not abuse its discretion

in assigning this debt to him.

“A family court operating as finder of fact has extremely broad

discretion with respect to testimony presented, and may choose to believe or

disbelieve any part of it. A family court is entitled to make its own decisions

-12- regarding the demeanor and truthfulness of witnesses, and a reviewing court is not

permitted to substitute its judgment for that of the family court, unless its findings

are clearly erroneous.” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).

Having reviewed the record, we do not find that any of the circuit court’s findings

were clearly erroneous or that there was any abuse of discretion regarding property

division and debt allocation.

PRESUMPTION OF EQUAL PARENTING TIME

Abel’s final assertion is the circuit court erred in its determination

that Irma had overcome the presumption that equal parenting time between the

parties is in the best interest of the children. “We first acknowledge that the equal

timesharing presumption of KRS 403.270(2) is new to Kentucky and unique

among the custody laws of other states, thereby limiting the precedent available to

us. However, we believe that our canons of statutory construction, combined with

our timesharing precedent, can resolve this issue. For example, we ‘must interpret

the statute according to the plain meaning of the act and in accordance with the

legislative intent.’” Layman v. Bohanon, 599 S.W.3d 423, 430 (Ky. 2020) (citing

Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997)). This issue is

one of statutory interpretation, and we therefore review it de novo. Id. at 429.

The circuit court outlined several factors for its conclusion that Irma

had overcome the presumption of equal timesharing. Prior to leaving for Mexico,

-13- it appears Abel and the children had a good relationship. Even so, the circuit court

found Irma had been the children’s primary caretaker since birth. Irma was the one

who tended to their medical needs, school-related needs, and their general daily

needs.

Abel did not know who the children’s doctors or teachers were. The

circuit court also found Abel works very long hours, including on weekends during

parts of the year, while Irma has a predictable set schedule. Abel left the family

for much of 2020 and had very little contact with them during that time. Upon his

return, he did not exercise his full visitation with them and appeared uninterested

in engaging with the children during those visitation times. While it did appear to

the circuit court that the relationship was improving, Abel did not give the circuit

court the opportunity to have an additional hearing to alter the timesharing, as this

appeal was filed prior to the finalization of the last temporary order addressing

parenting time.

The circuit court took all the factors of KRS 403.270 into account

when making its ruling. The relevant factors of KRS 403.270(2) are: “(a) The

wishes of the child’s parent or parents . . . as to his or her custody; (b) The wishes

of the child as to his or her custodian, with due consideration given to the influence

a parent or de facto custodian may have over the child’s wishes; (c) The interaction

and interrelationship of the child with his or her parent or parents, his or her

-14- siblings, and any other person who may significantly affect the child’s best

interests; (d) The motivation of the adults participating in the custody proceeding;

(e) The child’s adjustment and continuing proximity to his or her home, school,

and community; (f) The mental and physical health of all individuals involved; and

. . . (k) The likelihood that a party will allow the child frequent, meaningful, and

continuing contact with the other parent . . . .”

“While the new version of KRS 403.270(2) puts a finger on the scale

in favor of joint custody and equal timesharing by requiring only a preponderance

of evidence to overcome, such a preference is a slight burden and the trial court

continues to possess broad discretion in determining the best interest of the child as

to who should have custody and where the child shall live. . . . That discretion is

not altered by the change in KRS 403.270(2) once an appropriate ground is

established in favor of deviation from 50/50 timesharing.” Barnett v. White, 584

S.W.3d 755, 761 (Ky. App. 2019) (footnotes and citations omitted).

CONCLUSION

The McLean Circuit Court’s findings of facts are supported by the

evidence and thus not erroneous. The circuit court committed no error of law and

properly acted within its discretion. The McLean Circuit Court is AFFIRMED.

ALL CONCUR.

-15- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Donna M. Dant Karey L. Roy Calhoun, Kentucky Madisonville, Kentucky

-16-