Opinion
NO. 2018-CA-001343-MR NO. 2018-CA-001419-MR
01-17-2020
JOHN LITTLEFIELD APPELLANT/CROSS-APPELLEE v. KARLA LITTLEFIELD APPELLEE/CROSS-APPELLANT
BRIEF FOR APPELLANT/CROSS APPELLEE: Justin Key Jeffersonville, Indiana BRIEF FOR APPELLEE/CROSS APPELLANT: Allen McKee Dodd Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY DIVISION NINE (9)
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NO. 17-CI-500518 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES. GOODWINE, JUDGE: John Littlefield appeals the Jefferson Family Court orders of May 18, 2018 and August 16, 2018 requiring him to pay $2,500 a month in maintenance to Karla Littlefield and 40% of her attorney's fees. He argues the family court erred by: (1) awarding maintenance prior to dividing property; (2) retroactively awarding maintenance; and (3) failing to engage in an analysis of attorney's fees under Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). Karla cross-appeals alleging the family court provided inadequate awards of maintenance and attorney's fees. Finding no error, we affirm.
BACKGROUND
John and Karla were married on August 9, 1985. After almost thirty-two years of marriage, Karla filed for divorce on February 14, 2017. During most of the marriage, Karla was a stay-at-home mother, caring for the parties' two children, who are now emancipated. Karla has a high-school education and only has had sporadic employment outside the home. The last job she held was seasonal employment at Lowe's. Therefore, the parties relied on John's employment as a Branch Manager of Honeywell to cover living expenses. He earns $89,000 a year, if his salary goals are met.
John's base salary is $59,000, but he participates in a sales incentive plan which can give $30,000 a year.
Sadly, Karla suffered from childhood sexual abuse, which contributed to her being diagnosed with bipolar disorder, manic depressive disorder, agoraphobia, anxiety, depression, PTSD, and panic attacks. Since the parties' separation, her mental health has deteriorated, such that her doctor testified she is unable to currently work and unable to work in the foreseeable future. In fact, John, or the parties' adult children, must drive her to hair appointments, her attorney's office, and other trips around town. Yet, she has not filed for disability, despite the urging from the family court.
This term is used to describe an irrational and often disabling fear of being out in public. Agoraphobia, THE AMERICAN HERITAGE STEDMAN'S MEDICAL DICTIONARY (2nd ed. 2004).
Post-Traumatic Stress Disorder.
While the parties were married, John handled the finances. To accommodate their lifestyle, John withdrew $9,062.27 from his 401(k). He never discussed this with Karla but used the money to pay for marital bills. Karla maintains she did not know the state of their financial situation but did know they lived well beyond their means.
Accompanied with Karla's petition for divorce was a request for maintenance. She desired $2,502 per month, but later changed that request to $4,855. During the entirety of litigation, the parties continued to live together and John continued to pay the bills. In a sense, the parties remained amicable. In fact, most of the parties' issues were resolved in mediation. However, maintenance and issues revolving around John's 401(k) withdrawals were reserved for a court ruling.
The family court held a hearing to finalize the remaining issues on October 10, 2017. It found Karla was entitled to $2,800 a month in maintenance with no "end-date" and noted that the maintenance was "effective the date of [Karla's] motion July 18, 2017." Despite giving no end-date, the family court found John's income was insufficient to permanently support Karla's estimated monthly costs, and his own, but failed to impute income to Karla. The family court also distributed the limited marital property and substantial debt. The family court ordered each party to assume their own debt—Karla would be responsible for $7,467.61 and John responsible for $26,232.32. In dividing the property, the family court also required John to make Karla's car payment of $496.61 per month and ordered him to pay 40% of Karla's $15,791.25 attorney bill.
This ruling caused John to file a motion to alter, amend, or vacate, which the family court denied. After denial, John filed his notice of appeal pertaining to the family court's ruling on maintenance and attorney's fees. Karla also appealed and filed a cross-appeal, alleging issues with maintenance and attorney's fees.
STANDARD OF REVIEW
Our standard of review regarding an award of maintenance is that of abuse of discretion. The amount and duration of maintenance are within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990); Browning v. Browning, 551 S.W.2d 823, 825 (Ky. App. 1977); Russell v. Russell, 878 S.W.2d 24, 26 (Ky. App. 1994). As an appellate court, we are not authorized to substitute our own judgment for that of the trial court on the weight of the evidence, where the trial court's decision is supported by substantial evidence. Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999). Likewise, an award of attorney's fees is also reviewed under an abuse of discretion standard. Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008).
ANALYSIS
To properly award maintenance under KRS 403.200, a court must find the spouse seeking maintenance: (1) lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment. KRS 403.200(1). If maintenance is found proper under KRS 403.200(1), then a court must determine the amount and duration of the award. When determining the amount and duration of a maintenance award, KRS 403.200(2) requires the court to consider "all relevant factors," including:
Kentucky Revised Statutes.
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;KRS 403.200(2).
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
At the onset, we must dispel John's argument that the family court decided maintenance before property division. That is incorrect. Just because the "maintenance" section of the order appears before the "property division" section is not an indication it was decided first. Most of the parties' issues were resolved in mediation, including the decision to equally divide the marital estate. Also, in support of the notation, the family court decided property issues first directly in the May 8, 2018 order. The family court found, "the parties have no assets to divide that would provide [Karla] with financial independence." Record ("R") at p. 339. Clearly, the family court took the property division into consideration before it determined maintenance.
We now address the remaining viable arguments. John argues the family court failed to properly analyze each of the KRS 403.200(2) factors. Whereas, Karla argues the court came to the wrong monetary conclusion. We disagree with both arguments.
A review of the record reveals the court considered the relevant statutory factors outlined in KRS 403.200(2), concerning the amount of maintenance awarded. Specifically, the family court relied on testimony from a certified public accountant (CPA). The CPA used estimated monthly expenses for each party to determine the reality of the parties' financial situation. Karla's estimated monthly expenses were $3,300 and John's estimated expenses were $4,740.03. The CPA deduced the parties would be unable to split the estimated monthly expenses. The family court took this into consideration by giving a maintenance award $500 less than what the CPA anticipated for Karla's expenses. The family court also concluded the parties have no assets to divide to give Karla financial independence. Additionally, the court took Karla's employment record, mental health, and physical condition into consideration. Given her condition, she is unable to work for the foreseeable future. Therefore, she is unable to contribute financially to her expenses, unless she files for disability. Lastly, the family court was cognizant that the parties were married for thirty-three years at the time of trial. Considering the lack of available marital property, the duration of marriage, Karla's employment record, education, and mental health, we simply cannot say the family court abused its discretion as to the amount of maintenance awarded or the duration. The family court need not make a determination on every factor of KRS 403.200(2), just the relevant factors. See KRS 403.200(2).
As the family court stated, this does not leave John without recourse. If it is found that Karla began working, or took the court's advice to file for disability, he can modify the maintenance obligation under KRS 403.250. But given the family court's findings and conclusions of law, we cannot say it erred.
Karla also argues the monetary determination is inadequate to support her. Karla originally requested $2,502 in maintenance, but later changed the amount to $4,855. The CPA estimated expenses to be $3,300. The family court awarded $2,800. We cannot say that the family court abused its wide discretion by awarding more than what was originally asked, and $500 less than what the CPA estimated. It strongly urged Karla to initiate a disability action to provide her more income. The family court had concerns that the parties would be unable to meet their means and made an adequate maintenance determination. We agree with its finding.
John briefly argues the family court erred by arbitrarily making the maintenance retroactive to Karla's July 2017 motion. We disagree. Karla filed for temporary maintenance on July 18, 2017. This retroactive award is not arbitrary or unreasonable. Courts can retroactively award maintenance to the date of the motion. See Higbee v. Higbee, 89 S.W.3d 409, 410-411 (Ky. 2002); Mudd v. Mudd, 903 S.W.2d 533, 534 (Ky. App. 1995). Therefore, the Jefferson Family Court's maintenance award is affirmed.
Both John and Karla also appeal the family court's award of attorney's fees. John does not believe he should pay any, whereas Karla believes John should pay all attorney's fees. We disagree with both and affirm the family court's ruling.
The family court ordered John to pay 40% of Karla's attorney's fees. KRS 403.220 allows the court to award a reasonable amount of attorney's fees after considering the financial resources of the parties. But, even if a disparity exists, whether to make such an assignment and, if so, the amount to be assigned, is within the discretion of the trial judge. There is nothing mandatory about it. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
John wants us to consider Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). In Smith, the Kentucky Supreme Court found it is no longer necessary that courts find financial disparity for attorney's fees to be awarded. Id. at 555. Instead, courts should return to the plain language of the statute, requiring only that the trial court consider the financial resources of the parties before awarding attorney's fees—not that a financial disparity exist. Id. Given that, we cannot say that the family court abused its discretion. Smith merely wants courts to consider the parties' financial resources, which the family court did. The order awarding attorney's fees does not explicitly address the financial resources of the parties. If, however, John believed the order was deficient for this reason, he should have moved the family court to make additional findings, or alter or amend the order on this ground, under Civil Rule 52. He did not do so.
Karla believes the family court should have awarded 100% of the attorney's fees to John. She believes because she was imputed $0 and John was the breadwinner of the family, he should pay the entirety of the attorney's fees. However, Karla was awarded maintenance and was urged to file for disability. Karla also failed to ask the family court for relief. Her argument is unpreserved for appeal, as her motion to alter, amend, or vacate does not mention an erroneous attorney's fee calculation. Because of this, her argument can only be heard for palpable error under CR 61.02. An error will only be overturned if manifest injustice has resulted. Id.
Kentucky Rules of Civil Procedure.
Therefore, we cannot say that the family court palpably erred by ordering John to pay 40% of the attorney's fees, as the allocation of court costs and attorney's fees is entirely within the discretion of the trial court. KRS 403.220; Browning v. Browning, 551 S.W.2d 823, 825 (Ky. App. 1977). Attorney's fees are not a substantial right. Therefore, we affirm the family court's ruling.
CONCLUSION
For the foregoing reasons, we affirm the orders of the Jefferson Family Court.
TAYLOR, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT/CROSS
APPELLEE: Justin Key
Jeffersonville, Indiana BRIEF FOR APPELLEE/CROSS
APPELLANT: Allen McKee Dodd
Louisville, Kentucky