Miralem Bekric v. Allison Bekric

• Court: Court of Appeals of Kentucky
• Decided: March 10, 2022
• Docket: 2020 CA 001376
• Status: Unknown

Opinion

RENDERED: MARCH 11, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1376-MR

MIRALEM BEKRIC APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA JOHNSON, JUDGE ACTION NO. 19-CI-502562

ALLISON BEKRIC APPELLEE

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

DIXON, JUDGE: Miralem Bekric appeals from the Jefferson Circuit Court’s

order, entered August 24, 2020, dismissing his petition for dissolution of marriage

and custody, having found that, in contravention of KRS1 403.140, Miralem was

not a resident of Kentucky for the requisite 180 days. After careful review of the

1 Kentucky Revised Statutes. briefs, record, and law, we affirm in part, reverse in part, and remand for further

proceedings consistent with this Opinion.

FACTS AND PROCEDURAL BACKGROUND

Miralem and Allison met and married in Colorado Springs, Colorado,

in 2006. In 2008, they moved to Kentucky. The parties purchased a residence in

2012 and had two children born in Kentucky in 2013 and 2014.

In approximately July 2015, the family relocated to California, staying

with Allison’s relatives while she worked as a traveling nurse on temporary, short-

term contracts. The family returned to Kentucky in March 2016 for a period of six

months during which time they leased their Kentucky home, moved some furniture

to Miralem’s mother’s home in the same neighborhood as their own, sold some

items, and packed the rest to take to California. The family returned to California

in September 2016.

For the next year, Allison continued to work temporary traveling

nurse contracts, the children attended daycare, and Miralem, who is also a nurse,

obtained a full-time position at the same hospital as Allison. Allison asserts they

were looking to obtain their own residence in California; Miralem denies this.

Allison testified they stayed in California the entire year; Miralem testified that he

and the children returned to Kentucky multiple times, though he did not provide

-2- specific times, and that they stayed at his mother’s house, which he considers his

Kentucky residence.

In September 2017, Miralem moved to Bosnia to attend medical

school, while Allison and the children remained in California for the first year.

Allison denied that she or the children spent any significant time in Kentucky

during 2017. From fall 2017 to spring 2018, when she was between nursing

contracts, Allison attended college in California claiming in-state tuition status.

Miralem returned to the United States for one month in February 2018 and spent

time in both Kentucky and California before returning to Bosnia. Thereafter, in

May 2018, Allison and the children went to Kentucky to visit the children’s

paternal relatives. Allison stayed for one month before returning to California to

work more temporary traveling nurse contracts. The children stayed in Kentucky

an additional two months, returning to California in August 2018 so the oldest

could start kindergarten. Miralem and Allison filed joint tax returns as California

residents in both 2017 and 2018.

In October 2018, Allison and the children traveled to Bosnia to be

with Miralem, and the children attended school there. Allison returned to

California for three weeks in January 2019, as required by her visitor visa. She

returned to Bosnia where she stayed until May 2019, at which time she and the

children returned to California. In June 2019, Allison and the children went to

-3- Kentucky for one month for a family wedding and to visit paternal relatives. Plane

tickets were purchased for the children’s return to California and then to Bosnia

where they were enrolled for the 2019 school year.

On July 30, 2019, Miralem returned to the United States, and the

following week he and Allison traveled to Mexico to work on their marriage.

While there, Allison informed Miralem she wanted a divorce. Miralem returned to

Kentucky and filed his petition for dissolution on August 21, 2019, with the

Jefferson Circuit Court. Allison returned to California and filed her petition for

dissolution one day later, on August 22, 2019 (this petition was subsequently

amended to a petition for separation). Objections to jurisdiction were filed in both

actions. The children remained in Kentucky with Miralem until September 2019,

when Allison took the children to California without Miralem’s consent.

The Kentucky action was held in abeyance pending a ruling from the

California court. On May 19, 2020, after a two-day hearing, the California court

entered an order finding that California was not the children’s home state at the

time of Allison’s petition and declined to exercise jurisdiction. The Jefferson

Circuit Court then conducted a hearing on Allison’s motion to dismiss Miralem’s

action based upon her claim that Miralem was not a resident of Kentucky for the

180 days prior to filing of the petition, as required by KRS 403.140.

-4- On August 24, 2020, the Jefferson Circuit Court entered an order

finding that the requirements of KRS 403.140 had not been met and dismissing the

action. Miralem moved to alter, amend, or vacate the judgment, which was denied,

and timely brought this appeal. Additional facts will be introduced as they become

relevant.

ANALYSIS

Miralem first argues that the court erred in finding he did not satisfy

the residency requirements of KRS 403.140. Before we consider the merits of this

claim, we must determine the applicable standard of review. Miralem contends

abuse of discretion is the correct standard, citing Santise v. Santise, 596 S.W.3d

611, 616 (Ky. App. 2020), wherein the Court asserted this was the applicable

standard for review of a court’s decision to decline or retain jurisdiction under the

UCCJEA.2 We disagree.

The residency requirement of KRS 403.140 pertains to a court’s

personal jurisdiction over a dissolution action. See Jeffrey v. Jeffrey, 153 S.W.3d

849 (Ky. App. 2004). This review is de novo. Nash v. Campbell County Fiscal

Court, 345 S.W.3d 811, 816 (Ky. 2011). Nevertheless, the court’s factual findings

will not be disturbed unless clearly erroneous, and due regard is given to the

2 Uniform Child Custody Jurisdiction and Enforcement Act, codified at KRS 403.800-403.880.

-5- court’s credibility determinations. CR3 52.01. “Findings of fact are not clearly

erroneous if supported by substantial evidence. Substantial evidence is that

evidence which, when taken alone or in light of all the evidence, has sufficient

probative value to induce conviction in the minds of reasonable people.” Weinberg

v. Gharai, 338 S.W.3d 307, 312 (Ky. App. 2011) (citing Kentucky State Racing

Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)).

KRS 403.140(1)(a) provides that to enter a decree of dissolution, the

circuit court must find that “one (1) of the parties, at the time the action was

commenced, resided in this state . . . and that the residence . . . has been maintained

for 180 days next preceding the filing of the petition[.]” To satisfy this statutory

requirement, a party must either maintain an actual physical presence in Kentucky

for the requisite period or, as Miralem notes, the party must demonstrate that their

absence from the Commonwealth was merely temporary in nature. McGowan v.

McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983). “[A] change in legal residence

or domicile requires a physical act coupled with the intent to abandon the domicile

previously established.” Hunter v. Mena, 302 S.W.3d 93, 96 (Ky. App. 2010).

Miralem contends he satisfies the requirements of KRS 403.140(1)(a)

where there is no evidence his absences from the Commonwealth were anything

3 Kentucky Rules of Civil Procedure.

-6- but temporary in nature and cites to Broaddus v. Broaddus, 280 S.W.2d 144 (Ky.

1955), and McGowan, 663 S.W.2d 219.

In Broaddus, the Court held that a husband seeking divorce had not

evinced a conscious volition to change his residency from Kentucky, where he was

born and lived his entire life, merely by attending school out of state when the

husband returned to Kentucky during school breaks and maintained his voter and

selective service registrations in Kentucky. 280 S.W.2d 144. In McGowan, the

Court affirmed that KRS 403.140(1)(a) was satisfied where both spouses left

Kentucky for the husband to obtain medical training but they continued to use a

Kentucky address as their permanent address, registered and insured their car in

Kentucky, kept Kentucky driver’s licenses, and testified to their intent to return to

Kentucky if the husband could find work. 663 S.W.2d 219. Miralem argues that

his connections to Kentucky, coupled with his testimony regarding his desire to

return for his residency, if possible, is analogous and necessitates reversal.

Contrary to Miralem’s assertions, and as reflected by the court’s

findings, there was conflicting evidence regarding his residency. While Miralem

notes he retained real property in Kentucky and maintained the attendant utilities

and taxes associated therewith, this property had been continuously used as rental

property since 2016 when the parties relocated to California, and the lease reflects

a California address for Miralem. Miralem asserts their bank accounts were

-7- associated with their Kentucky address, but Allison provided statements

demonstrating that, at minimum, her account had been transferred to the California

residence in 2016, although she continued to use checks listing the Kentucky

residential address.

Miralem testified that he maintained a voter registration and driver’s

license in Kentucky but did not specify when he voted or renewed his license.

Allison has a California driver’s license, issued in 2017, which Miralem asserts she

obtained only because she needed a valid license to maintain her employment and

her Kentucky license had expired. Allison’s employment contracts contain a

Kentucky address in the letterhead; however, she provided documentation

establishing that she declared California as her taxing state to her employer in 2018

and that the parties filed joint tax returns in California in both 2017 and 2018.

Additionally, while Miralem characterizes his absences from Kentucky as being

for educational purposes, he obtained a permanent full-time position in California

prior to applying to medical schools all over the United States and in Bosnia.

Based on the above, the court concluded that the facts did not fit

within the exception to the requirement for actual residency, as established by

Broaddus and McGowan and, consequently, Miralem had not been a resident of

Kentucky for the requisite 180 days preceding his petition. While another judge

may have reached a different conclusion, the court’s findings are supported by

-8- substantial evidence. Consequently, the findings are not to be disturbed, and the

court did not err in dismissing Miralem’s claim for dissolution.

Miralem next argues that the court erred in declining to accept

jurisdiction of his custody claim and in failing to communicate with the California

court. Allison asserts there is no error where the obligation of interstate court

communication arises under the UCCJEA and not under KRS 403.140.

We agree with Allison to the extent that KRS 403.140 does not

require such communication. However, we conclude that the court erred by

dismissing Miralem’s petition in toto and failing to address his custody claim.

While we have affirmed the court’s dismissal of the dissolution claim, the

residency requirements of KRS 403.140 do not extend to custody claims, and

nothing in Kentucky jurisprudence necessitates that Miralem’s custody claim fails

per se. In fact, Kentucky law clearly contemplates that the issue of custody may be

retained by the court despite the dismissal of a dissolution claim. See KRS

403.280(7), which provides that if a dissolution action is dismissed, a parent may

“move[] that the proceeding[s] continue as a custody proceeding[.]”

Herein, Miralem petitioned for custody of his daughters, consistently

argued the court should take up the issue, and raised the court’s failure to reach the

claim in his motion to alter, amend, or vacate. We believe this is sufficient to

-9- satisfy KRS 403.280(7) and, consequently, find that the court erred by dismissing

the action without addressing the custody claim.

CONCLUSION

Therefore, and for the foregoing reasons, we affirm the dismissal of

Miralem’s dissolution action but reverse the dismissal of the underlying petition as

it pertains to child custody and remand this matter to the Jefferson Circuit Court

for further proceedings consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Louis P. Winner Hugh Barrow Louisville, Kentucky Louisville, Kentucky

Allison S. Russell Louisville, Kentucky

-10-