RENDERED: OCTOBER 16, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1014-MR
JOLEEN BRENDA GONZALEZ (FORMERLY KNOWN AS JOLEEN B. DOOLEY) APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE DAVID A. LANPHEAR, JUDGE ACTION NO. 16-CI-00658
ANDRE W. DOOLEY APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
ACREE, JUDGE: Joleen Gonzalez appeals the Warren Family Court’s June 7,
2019 findings of fact, conclusions of law, and decree dissolving her marriage to
Andre Dooley. The decree awarded the parties joint custody of their minor child
(Child), with Andre designated as primary residential parent. It further ordered Joleen to pay child support and to reimburse Andre for certain marital assets and
debts accumulated during the marriage. Upon careful consideration, we affirm in
part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Joleen and Andre married in 2012. On May 28, 2016, before Joleen
petitioned for divorce, Andre and Child, who was nearly two years old at the time,
relocated to Kansas City, Kansas, where Andre’s parents lived. According to
Joleen, Andre did not consult her about relocation. Instead, she asserts, she
received a text message from Andre at approximately 10:55 p.m. on May 28, 2016,
stating his intention to look for employment, but that he would return to Kentucky.
Andre, on the other hand, claims he and Joleen discussed moving to Kansas City
where he could seek employment and where his parents were willing to assist
them. He was hopeful she would soon join them and encouraged her to do so.
Instead, Joleen filed a petition to dissolve the marriage on June 20,
2016. Joleen and Andre filed their respective motions for temporary custody of
Child; both motions requested joint custody and sought designation of the
respective movant as primary residential parent. After conducting an evidentiary
hearing, the family court ordered temporary joint custody of Child, with Andre as
the temporary primary residential parent. Joleen was awarded temporary
-2- timesharing. Subsequently, the parties entered an agreed order requiring Joleen to
pay temporary child support.
The family court conducted a final hearing and entered its findings of
fact, conclusions of law, and decree. As to custody, the decree was consistent with
the temporary custody order, awarding joint custody to the parties, designating
Andre as the primary residential parent, and granting Joleen timesharing. In
addition, Joleen was ordered to pay Andre: (1) $778.97 per month in child
support; (2) $3,300.00 representing one-half of their 2015 joint income tax refund;
and (3) $1,250.00 representing one-half of a US Bank credit card debt assigned to
be paid by Andre. Joleen filed a motion for reconsideration or, in the alternative, a
motion to alter, amend, or vacate the portion of the order pertaining to custody.1
The motion was denied. This appeal followed.
STANDARD OF REVIEW
The applicable standard of review in child custody cases is set forth as
follows:
In reviewing a child-custody award, the appellate standard of review includes a determination of whether the factual findings of the family court are clearly erroneous. A finding of fact is clearly erroneous if it is not supported 1 Joleen retained new counsel after the family court entered its decree. For cautionary purposes, prior to filing her motion for reconsideration or, in the alternative, a motion to alter, amend, or vacate, her counsel filed a notice of appeal of the June 7, 2019 findings of fact, conclusions of law, and decree. This Court entered an order on August 19, 2019, holding the appeal in abeyance for thirty days to allow the family court to rule on her post-trial motion. On September 16, 2019, this Court entered an order returning the case to the Court’s active docket.
-3- by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person. Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court’s ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court’s decision is unreasonable or unfair.
B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005) (citations omitted). Likewise,
as concerns marital property division, we will affirm the family court if it has
correctly applied the law to findings of fact that are supported by substantial
evidence, provided there is no abuse of discretion. Kleet v. Kleet, 264 S.W.3d 610,
613 (Ky. App. 2007).
ANALYSIS
Joleen claims the family court erred by: (1) designating Andre as the
primary residential parent; (2) ordering her to pay $778.97 per month in child
support; (3) requiring her to reimburse Andre $3,300.00 for one-half of a 2015
federal income tax refund; and (4) requiring her to reimburse Andre $1,250.00 for
one-half of an alleged marital debt on his US Bank credit card. We address each
issue in turn.
-4- Custody:
Joleen first claims the family court erred because it failed to assess the
propriety of Andre’s relocation with Child. Specifically, she contends the court
erred by failing to determine the relocation was not in Child’s best interest.
We do not agree, generally, with Joleen’s contention that the family
court failed to consider the relocation. It was only after hearing conflicting
testimony about how and why the relocation occurred that the court made a custody
determination. However, when the relocation occurred is also a significant factor
in the analysis. That factor causes this Court to disagree, specifically, with
Joleen’s contention that the family court was obligated to determine whether
relocation was in Child’s best interest.
Unlike the cases upon which Joleen relies,2 this relocation occurred
before initiation of dissolution proceedings and before any court order affected
Joleen’s and Andre’s right to joint custody. That right is recognized in KRS3
405.020(1) and says, “The father and mother shall have the joint custody, nurture,
and education of their children who are under the age of eighteen (18). . . .” That
2 Joleen cites Frances v. Frances, 266 S.W.3d 754 (Ky. 2008) and Justice Cunningham’s dissent in Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) to support her position. In Frances, the parents at issue entered into an informal custody agreement (which did not formalize into a temporary custody order) prior to the issue of relocation arising. In Pennington, a final custody decree had been entered prior to relocation. 3 Kentucky Revised Statutes.
-5- statute, like KRS 403.270(2), envisions that issues relating directly or indirectly to
a child are resolved jointly by the joint custodians. Squires v. Squires, 854 S.W.2d
765, 769 (Ky. 1993) (“joint custody envisions shared decision-making”).
But there is an important distinction between the custody statutes. We
begin by recognizing that “parents have a constitutionally protected liberty interest
in rearing their children without government interference.” Walker v. Blair, 382
S.W.3d 862, 866 (Ky. 2012). The Constitution did not create that liberty interest,
but it does prohibit the government from “infring[ing] on the fundamental right of
parents to make child rearing decisions . . . .” Troxel v. Granville, 530 U.S. 57, 72-
73, 120 S. Ct. 2054, 2064, 147 L. Ed. 2d 49 (2000). Put simply, KRS 405.020(1)
recognizes that the right and liberty interest necessarily exist coterminously, and
jointly, in two people – the child’s mother and the child’s father.
Joint custody rights under KRS 405.020(1) are exercised
autonomously by the parents, independently of government interference, and the
parents’ decisions are presumed in the law to be made in the child’s or children’s
best interest. Walker, 382 S.W.3d at 866 (“parents have a constitutionally
protected liberty interest in rearing their children without government
interference”); Morton v. Tipton, 569 S.W.3d 388, 394 (Ky. 2019) (citing Troxel,
530 U.S. at 68, 120 S. Ct. 2054) (“the law presumes that a fit parent acts in the
child’s best interest”). The parents’ exercise of joint custody rights when identified
-6- solely by KRS 405.020(1) does not require judicial sanction, nor is unsolicited
judicial interposition necessary or appropriate to resolve disagreements of the joint
custodians. “[S]o long as a parent adequately cares for his or her children (i.e., is
fit), there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best
decisions concerning the rearing of that parent’s children.” Morton, 569 S.W.3d at
397 (quoting Troxel, 530 U.S. at 68-69, 120 S. Ct. 2054).
However, when Joleen initiated divorce proceedings, she invited
government participation. To prevent such government participation from
becoming unconstitutional government interference, the legislature imposed
constitutionally tailored limits on the courts’ power and authority by enacting
various provisions of KRS Chapter 403. The applicable statute here, KRS
403.270(2), authorizes a family court to assess the propriety of continuing joint
custody as recognized by KRS 405.020(1).
Additionally, government participation through KRS 403.270(2)
provides the means to resolve post-petition impasses in the joint custodians’
decision-making going forward. That is to say, a family court properly exercising
its jurisdiction has the inherent ability to “break the tie” when joint custodians
cannot agree. See Young v. Holmes, 295 S.W.3d 144, 147 (Ky. App. 2009) (“joint
custodians[‘] . . . failure to agree ultimately resulted in their abdication of such a
-7- decision to the trial court” (quoted in Lewis v. Lewis, No. 2015-CA-001243-ME,
2016 WL 1273433, at *7 (Ky. App. Apr. 1, 2016)). Furthermore, once the courts
are involved, “equal decision-making power is not required for joint custody, and
parties or trial courts are free to vest greater authority in one parent even under a
joint custody arrangement.” Fenwick v. Fenwick, 114 S.W.3d 767, 776 (Ky.
2003), superseded by statute on other grounds as stated in Fowler v. Sowers, 151
S.W.3d 357, 359 (Ky. App. 2004), overruled on other grounds by Frances, 266
S.W.3d at 756-57, and Pennington, 266 S.W.3d at 768.
However, this Court knows of no authority, and Joleen cites none,
requiring or 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 relocation decision is in a child’s best interest would
be problematic and, quite arguably, could constitute unconstitutional governmental
interference. We have even greater confidence that such a judicial determination
would unconstitutionally interfere with parental rights when a pre-petition
relocation decision is jointly made by joint custodians. See Morton, 569 S.W.3d at
397.
That is not to say, however, that the pre-petition conduct of joint
custodians should not be considered by the family court when making a custody
-8- decision pursuant to KRS 403.270(2). As noted, in this case the family court heard
conflicting testimony regarding whether relocation was a joint or unilateral
decision. Although Joleen is correct that the family court made no finding of fact
regarding whether pre-petition relocation was in Child’s best interest, we conclude
such a finding was neither necessary nor appropriate. And yet the family court did
certainly discuss in its analysis the effect of relocation, as well as the effect of
Joleen’s decision to remain in Kentucky.
As it considered the list of factors, and specifically those listed in
KRS 403.270(2)(c) and (2)(e),4 the family court analyzed the relationships Child
has developed with family members in Kansas City, as well as those with other
family members in Kentucky. It found Child has a close relationship with Andre’s
mother, father, sister, brother-in-law, and two nephews, who all reside in Kansas
City. Likewise, the court found Child’s relationships with Joleen and her family
members who reside in Kentucky were good ones. We conclude the family court
properly refrained from conducting a retrospective best-interest analysis by
4 KRS 403.270(2)(c) and (2)(e) identify the factors as follows:
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
...
(e) The child’s adjustment and continuing proximity to his or her home, school, and community[.]
-9- considering whether, on balance, the new and developing bonds of Kansas family
members outweighed the dilution of existing Kentucky familial relationships, or
vice versa. Such a hindsight-ruling might have prejudiced the objectivity of the
analysis one way or the other.
Joleen next asserts the family court abused its discretion when it
considered two separate incidents that occurred while Child was in Joleen’s care.
First, Joleen testified that during a visitation with Child, she brought the then-
three-year-old to a Kansas City amusement park called Paradise Point. Because
Child was not tall enough to ride the bumper cars, Joleen left him at a table,
unattended, while she rode the bumper cars with her brother. Joleen testified that
Child was within her eyesight the entire time.
The second incident concerned a Valentine’s Day Facebook post.
Specifically, she uploaded a picture of Child, with very little clothing, lying on a
bed, holding a rose. She testified that she “takes the same pose of the child each
year on Valentine’s Day and will continue to do so until he is eighteen years old.”5
(Decree, p. 9.) Joleen removed the photograph after Andre raised concerns.
Joleen asserts the court should have disregarded these isolated
incidents, because no harm was shown, which left the court to merely speculate as
5 The family court declined to speculate at what age Child’s cooperation with the annual photo shoot would end.
-10- to potential harm that could have occurred. We disagree. The family court found
these two incidents “exhibited poor decision making regarding the child.” As
noted above, KRS 403.270(2) does not provide an exhaustive list of factors to
consider. Evidence of a parent’s decision-making skills certainly impacts the best-
interest analysis. We find no abuse of discretion in the court’s consideration of
these incidents.
Joleen next contends the family court erred when it construed her
testimony that “she would like the child at least 180 days a year” as a request for
joint custody with equal timesharing. We agree with Joleen that this was not her
expressed intention. Her petition sought joint custody but with a designation of
Joleen as primary residential parent. Although Joleen did state she would like to
have Child at least 180 days a year, this only came after her testimony that she
wants Child 365 days a year.
The family court concluded that joint custody with equal timesharing
was not feasible, based on the distance between the parties. Regardless of the
family court’s interpretation of her request, it found naming Andre the primary
residential parent to be in Child’s best interest. This conclusion was supported by
substantial evidence. Therefore, any error in the family court’s understanding as to
Joleen’s desire to be named primary residential parent is harmless.
-11- Next, Joleen argues it was error for the family court to conclude “the
minor child should sleep in his own, separate bed throughout the night when in
[Joleen’s] or any other person’s home.” We agree with Joleen.
“[M]inor day-to-day decisions concerning the child will, as a matter
of necessity, be made by the parent with whom the child is residing at the time.”
Fenwick, 114 S.W.3d at 778. The decision as to where Child sleeps at night is a
minor decision. The family court must not interfere with minor decisions, absent a
finding, after a hearing, that the decision made by the joint custodial parent where
the child is residing at the time will endanger the child’s physical health or
significantly impair the child’s emotional development. KRS 403.330(1).6
The family court’s determination regarding where Child is to sleep is
an abuse of discretion because, at the time of the hearing, it was not supported by
substantial evidence that allowing Child to sleep with Joleen would endanger his
physical health or significantly impair his emotional development. Joleen remains
entitled to decide where Child sleeps when, as a joint custodian, she is exercising
her timesharing.
6 KRS 403.330(1) states:
Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or his emotional development significantly impaired.
-12- We conclude Joleen’s remaining claims of error to the family court’s
designation of Andre as primary residential parent are without merit.
Child Support:
Joleen does not challenge the calculation of child support. Instead,
she asks only that this Court vacate and remand the issue of child support if we
reverse the custody determination. Because we find no error in the family court’s
designation of Andre as the primary residential parent, we need not address this
issue further than to affirm the family court’s order requiring Joleen to pay $778.97
per month in child support.
2015 Federal Income Tax Refund:
In April 2016, the parties filed a joint 2015 federal tax return with the
IRS. Both parties testified that Joleen received the refund, in the amount of
$6,625.00, after the parties had separated. It is further uncontested that Joleen kept
the entirety of the refund. The family court classified the refund as marital
property and ordered Joleen to reimburse Andre approximately half, or $3,300.00.
Joleen contends the family court abused its discretion by treating the
tax return as a marital asset, because it no longer existed at the time of trial. She
claims to have used the money for marital obligations, i.e., rent, electricity, water,
car repairs, and caring for the minor child.
-13- Whether the funds had been exhausted prior to the time of trial is
irrelevant. What is important is that it was based on their 2015 incomes and filed
with the IRS prior to their separation. Therefore, it is marital property, which must
be divided equitably between the parties. Smith v. Smith, 235 S.W.3d 1, 5 (Ky.
App. 2006).
If the family court had found Joleen spent the refund on marital
obligations, Andre would not be entitled to half. However, Joleen has not
presented any evidence, other than her own testimony, to establish it was spent on
marital obligations. To the contrary, Joleen presented conflicting testimony about
its use. At one point, Joleen testified she used the refund to pay her rent and bills
after Andre left. However, at another time, she testified she used part of it to
purchase a business named “Shorty G’s.” Joleen presented no definitive evidence
establishing how she spent the 2015 income tax refund. And, we cannot say the
family court’s finding lacks substantial evidence that the refund was marital
property Joleen spent on non-marital assets or obligations. Therefore, we affirm
the award of $3,300.00 to Andre.
US Bank Credit Card:
During the marriage, the parties incurred a debt of $2,500.00 from a
cash advance taken out on Andre’s US Bank credit card. The money was given to
Joleen’s brother as a loan to buy an engagement ring. Andre testified he has made
-14- all the payments toward this debt since the parties separated and, at the time of
trial, a balance of $427.93 remained on the card. Joleen did not contest these facts.
Joleen did, however, testify that her brother repaid the debt prior to
the separation. The family court found the US Bank credit card debt to be a
marital debt and ordered Joleen to reimburse Andre $1,250.00.
The division of marital debt is within the discretion of the family court
and the reviewing court will not disturb its ruling absent an abuse of discretion.
Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001), overruled on other
grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). Additionally, there is no
presumption that debts incurred during the marriage are marital. Id. Joleen first
asserts this is not a marital debt because the cash advance of $2,500.00 was not
taken out for marital purposes.
In considering whether a debt is marital, courts look at factors such as
receipt of benefits, extent of participation, whether the debt was incurred to
purchase marital property, whether the debt was necessary to provide for the
maintenance and support of the family, and economic circumstances related to the
parties’ ability to assume indebtedness. Id. Unlike Neidlinger, and the typical
cases in which this issue arises, Andre did not incur this debt behind Joleen’s back.
To the contrary, the parties accrued this debt to benefit Joleen’s immediate family
member. She had knowledge prior to the cash advance and does not dispute her
-15- agreement to loan her brother the money. Therefore, she actively participated in
incurring the debt. Additionally, because the loan was for Joleen’s brother, there
was no non-marital benefit to Andre. We cannot conclude that the family court’s
decision on this point is error. As a marital debt, it was subject to equitable
division by the family court. We cannot find the division to be inequitable.
Additionally, Joleen contends, even if it was a marital debt owed on
Andre’s credit card, her brother repaid the debt to Andre. But Andre specifically
testified the money repaid on the revolving line of credit was used to satisfy the
marital obligation. Joleen presents no evidence that Andre used the funds for non-
marital purposes. We find no abuse of discretion by the family court assessing the
evidence and making the award as it did.
CONCLUSION
Based on the foregoing, we affirm in part and reverse in part. We
note that nothing in this Opinion reflects the family court abused its discretion in
designating Andre as the primary residential parent. We remand to the Warren
Family Court for the entry of an order consistent with this Opinion.
ALL CONCUR.
-16- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kenneth A. Meredith, II Joy D. Denton Bowling Green, Kentucky Bowling Green, Kentucky
-17-