Opinion
NO. 2019-CA-000521-ME
02-07-2020
SHAUNA E. WALKER APPELLANT v. WILLIAM L. WALKER APPELLEE
BRIEF FOR APPELLANT: Jeffery P. Alford Paducah, Kentucky BRIEF FOR APPELLEE: Jennifer Sacharnoski Nelson Princeton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT FAMILY DIVISION
HONORABLE C. A. WOODALL, III, JUDGE
ACTION NO. 18-CI-00023 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: Shauna E. Walker ("Shauna") appeals from the findings of fact, conclusions of law, and final decree of dissolution of marriage of the Lyon Circuit Court, Family Division. The family court awarded joint custody and equal parenting time to Shauna and William L. Walker ("William"), determined the child would attend school in Lyon County, and found insurance proceeds were marital property. Shauna appealed. After careful review of the record, finding no error, we affirm.
BACKGROUND
Shauna and William were married on September 30, 2013, and had one child during the marriage, E.R.W. They separated on October 20, 2017, following a tumultuous relationship. On February 5, 2018, the Lyon District Court entered a Domestic Violence Order ("DVO") in favor of Shauna against William. The following week, William filed a pro se petition for dissolution of their marriage. That same day, the parties' home was destroyed by fire. They received insurance proceeds on the dwelling and its contents.
William suffered a traumatic brain injury in May 2014, resulting in paranoia, memory loss, and violent outbursts. He was diagnosed with cognitive disabilities. Medication controlled the impulses, but William had a history of not taking his prescribed medication and drinking alcohol, both of which exacerbated the violent propensities. The family court discussed this at length in both its pendente lite order entered July 24, 2018, and its March 19, 2019 findings of fact, conclusions of law, and final decree of dissolution. Significantly, the family court found William's behavior had improved since entry of its July 24, 2018 order due to his completion of parenting classes and counseling, and he posed no threat to E.R.W.
E.R.W. was not a party to the DVO. However, Shauna was awarded temporary custody.
Both parties were represented by counsel at the final hearing.
This case was tried on February 22, 2019. On March 19, 2019, the Lyon Family Court entered a decree of dissolution dissolving the parties' marriage. The parties were awarded joint custody and equal time sharing of their daughter, who was three years old at the time. The child would be eligible to attend pre- school that fall, and the parties could not agree on which school she would attend. The family court also determined the child would attend pre-school and school in Lyon County. The family court further found the insurance proceeds were marital property. This appeal followed.
At the time of the final hearing, William was the primary custodian of his autistic eight-year-old son (by another woman). His son attended school in Lyon County and seemed much calmer when E.R.W. was around.
On appeal, Shauna argues the family court erred in: (1) awarding joint legal custody with equal parenting time to the parties; (2) determining where the child would attend school; and (3) ruling the insurance proceeds were marital property.
ANALYSIS
First, Shauna argues the family court erred in awarding joint legal custody with equal parenting time to the parties. "When an appellate court reviews the decision in a child custody case, the test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citing Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974)). Family courts make custody determinations based on the factors of KRS 403.270(2), which provides:
Kentucky Revised Statutes.
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors[.]
Shauna asserts the presumption that equal parenting time is in the best interests of the child does not apply in this case because there is an active domestic violence order against William. KRS 403.315 provides in pertinent part:
If a domestic violence order is being or has been entered against a party by another party or on behalf of a child at issue in the custody hearing, the presumption that joint custody and equally shared parenting time is in the best interest of the child shall not apply as to the party against whom the domestic violence order is being or has been entered. The court shall weigh all factors set out in KRS 403.270 in determining the best interest of the child.Shauna argues the family court incorrectly applied this presumption in violation of KRS 403.315. However, the family court's order did not apply the presumption and instead thoroughly weighed the factors under KRS 403.270.
Shauna further argues sole custody was in the best interests of the child due to the parties' inability to cooperate and communicate regarding matters concerning their child, including choice of school. Family courts "look beyond the present and assess the likelihood of future cooperation between the parents. It would be shortsighted to conclude that because parties are antagonistic at the time of their divorce, such antagonism will continue indefinitely." Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993).
Shauna does not contest the family court's analysis of the factors considered. She incorrectly asserts the family court applied the presumption that joint custody and equal time sharing were in the best interests of the child. The family court weighed the existing DVO and the parties' present hostility against all other relevant factors and still found joint custody and equal time sharing were in the best interests of the child. The family court's ruling gave due consideration to all relevant factors and adhered to the requirements of KRS 403.270. As such, the family court's decision was neither clearly erroneous nor an abuse of discretion.
Next, Shauna argues the family court erred in determining where the child would attend school. She contends neither party filed a motion asking the court to make this determination, so the issue was not properly before the court. Shauna further argues the decision was advisory because the child was three years old and not yet of school age. William points out both parties testified regarding choice of school, and Shauna did not object to this testimony. School choice was ripe for adjudication as the child was eligible to attend pre-school in the fall, and the parties could not agree which school she would attend. Child custody was properly before the family court, and "the court may make such other orders as are necessary to properly effectuate joint custody." Squires, 854 S.W.2d at 769. The family court exercised this ability, and Shauna failed to raise her objection after the family court's decision was rendered by way of a timely filed motion to alter, amend, or vacate. As such, Shauna failed to properly preserve this issue, and we decline to address it further.
Finally, Shauna argues the family court erred in finding the insurance proceeds on the home and its contents were marital property. The parties owned a home on 8.25 acres of land in Eddyville. Shauna's mother gifted her the property by general warranty deed in the summer of 2013 before the parties were married. Approximately two months after the parties' marriage, Shauna deeded the property to herself and William in fee simple absolute with right of survivorship, stating "love and affection of her husband" as consideration. Despite the stated consideration in the deed, Shauna testified she added William's name to the deed hoping it would help them obtain a mortgage to repair the home. However, that never happened.
We will not set aside a family court's findings of fact "'unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.'" Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting CR 52.01). If the family court's findings of fact are sound, "'then the appellate court's role is confined to determining whether those facts support the trial judge's legal conclusion.'" Id. (quoting Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000)). We review issues of law de novo. Id.
Kentucky Rules of Civil Procedure. --------
The family court determined that the insurance proceeds were marital property based on the following factors:
the source of the money with which the "gift" was purchased, the intent of the donor at that time as to intended use of the property, status of the marriage relationship at the time of the transfer, and whether there was any valid agreement that the transferred property was to be excluded from the marital property.O'Neill v. O'Neill, 600 S.W.2d 493, 495 (Ky. App. 1980). First, the family court found the source of the money was nonmarital because Shauna received the property as a gift from her mother. Second, the family court found Shauna's intent was unclear because the language in the deed and her testimony were contradictory. We address this factor further below. Third, nothing of record indicates marital discord at the time and the parties remained together for four more years. Finally, there was no valid agreement that the property would be excluded from marital property. Based on this analysis, the family court held the real estate was wholly marital property, so the insurance proceeds were also marital property. We agree with the family court's analysis as to all factors other than the intended use of the property.
Shauna argues "the act of placing property in a couple's joint names does not in and of itself transmute that property into marital property." Barber, 505 S.W.3d at 757. While true, Shauna's argument focuses on one part of the analysis and overlooks the fact that "the donor's intent is the primary factor in determining whether a transfer of property is a gift[.]" Sexton v. Sexton, 125 S.W.3d 258, 268 (Ky. 2004). In Barber, a husband and wife built a home partially financed with a monetary gift from husband's parents. Barber, 505 S.W.3d at 758. Husband assured wife the home would be "half hers." Id. "To confirm this agreement, Barber executed a deed which conveyed the property to himself and [his wife] as joint tenants with right of survivorship." Id. The Supreme Court of Kentucky held husband's assurances and the deed were sufficient evidence that husband intended "that the home would be a marital asset that the couple owned jointly." Id.
The facts regarding the donor's intended use of the property are similar in this case. The family court focused its analysis of the "intent" prong on Shauna's motive behind adding William to the deed. Instead, analysis of this factor should have focused on Shauna's intended use of the property when she added him to the deed. Whether Shauna did so out of love and affection or to improve her chances of getting a mortgage to repair the home, she clearly intended the home to be their marital residence. Shauna asked William "to help her fix it up and promised to give him half. He agreed and that resulted in the . . . joint deed." Record ("R.") at 182.
Based on the family court's findings of fact and applicable case law, Shauna's intent at the time she added William to the deed was for the property to be their marital residence. Although our analysis of the intent factor differs, we affirm the family court's determination that the insurance proceeds were marital property.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Lyon Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffery P. Alford
Paducah, Kentucky BRIEF FOR APPELLEE: Jennifer Sacharnoski Nelson
Princeton, Kentucky