Opinion
NO. 2012-CA-000467-MR
02-22-2013
ELWANDA FAYE FUTRELL ADAMS APPELLANT v. RONNIE GALE ADAMS APPELLEE
BRIEFS FOR APPELLANT: Robert L. Bertram Jamestown, Kentucky BRIEF FOR APPELLEE: Duncan Cavanah Hopkinsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 10-CI-00341
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. CAPERTON, JUDGE: The Appellant, Elwanda Faye Futrell Adams, appeals the January 5, 2012, findings of fact, conclusions of law, and final order of dissolution of marriage entered by the Christian Circuit Court, requiring her to pay maintenance to the Appellee, Ronnie Gale Adams, who, she asserts, was guilty of domestic abuse. On appeal, Elwanda argues that she should not be financially penalized because she was forced to leave her marriage due to domestic violence. Ronnie disagrees, and argues that the court below gave full consideration to all necessary factors and allegations and properly granted the maintenance award pursuant to Kentucky Revised Statutes (KRS) 403.200. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Ronnie and Elwanda were married for approximately 30 years. Elwanda filed a petition for dissolution of marriage on March 8, 2010. At the time the petition was filed, both parties were employed. Ronnie filed a response to the petition seeking both temporary and permanent maintenance, as well as discovery, seeking the value and sum of Elwanda's retirement account and other funds.
Elwanda asserts that Ronnie made statements to her during the pendency of the divorce indicating that he would bring criminal charges against the parties' children, defame Elwanda, and get enough money from her such that he would "never have to work again." During the early months of the parties' separation, a domestic violence order was in place as a result of Ronnie's aggression towards Elwanda. The family court order which mandated that Ronnie clean out his property from the marital residence prior to its sale required that "there be no harassing, threatening, or abusive behavior during those times." That order referenced the separate domestic violence case pending against Ronnie. In addition, the parties' adult son testified that dangerous domestic violence had occurred in the home, and that Ronnie had badly harmed Elwanda and the children on numerous occasions. Ronnie denies Elwanda's portrayal of him as a habitual abuser, but concedes, in his brief to this Court, that there were "many times of mutual hostility between himself and Mrs. Adams."
See Tape 1, 4-18-11, 11:54:20.
Order, R. Vol. 1, p. 84.
Brief of Appellee, p. 1.
Ronnie has a high school degree and additional vocational training. Prior to the parties' separation, Ronnie had been gainfully employed for the majority of his adult life. Concerning why he believed himself no longer capable of gainful employment, Ronnie asserts that he had "dental problems, problems with his hand, problems with the right shoulder and right knee," although medical records substantiating these claims were not submitted. Ronnie also argued that he had no place to live, and that he was on "medical leave" from his employment.
When questioned about his employment, however, Ronnie disputed evidence submitted by Elwanda which she asserts indicates that he had been terminated because he did not return phone calls or other communications from the employer requiring him to return to work. Ronnie conceded that he did not provide his employer with a doctor's excuse for his failure to work, and further admitted that his physician told him he would be healed and able to return to work within six to eight weeks following surgery. Ronnie testified that he did not make any attempt to have his former employer rehire or reinstate him, nor did he make an effort to find a job during the pendency of the divorce. Ronnie claims, in his brief to this Court, that his termination from his previous job was "wrongful," but provides no additional information to that effect.
Ronnie also asserted that he had "tremors" which prevented him from working. He was referred to a neurologist for an evaluation. Ronnie testified that the doctor found no physical cause for the tremors, and that they did not occur when he was distracted and not focused on causing them. Additional medical evaluations indicated that Ronnie had a normal gait, normal arm swing, and normal strength, and that the tremor, if it existed, was psychogenic. Ronnie submitted a claim for social security disability, but was denied. Elwanda filed numerous motions to compel production of medical records establishing the existence of a disabling injury during the pendency of this case below, and asserts that no records were submitted to indicate any permanent impairment or disability. To the contrary, Ronnie argues that records were entered from Western Kentucky Orthopedics and Sports Medicine, and from Dr. John Khun, Dr. David Uskavitch, and the Trigg County Hospital Rehabilitation Center.
The court below held a hearing on Ronnie's demand for temporary maintenance, and at that time, found that Ronnie had sufficient property and employment to meet his needs, and accordingly, was not entitled to temporary maintenance. Thereafter, in its final order of dissolution, the court below evenly divided the funds from the sale of the parties' marital residence, as well as their retirement accounts, and investment account total. The record indicated that Ronnie had a total of $25,961.46 in his pension account, and that Elwanda had a retirement account with a cash value of $112,948.44, and an investment account in the sum of $60,501.34. At the time the court entered that order, Elwanda had been working for two years, but Ronnie remained unemployed.
The trial court then addressed the marital debt proven by documentary evidence, and awarded the entirety of that debt to Elwanda, aside from a debt of between $10,000 and $16,000 which Ronnie asserted that he owed to his mother but which was not supported by documentary evidence. The court found that Ronnie's monthly expenses of $2,301 per month were "reasonable," with the exception of those expenses for his monthly alcohol intake, which amounted to approximately $200. Accordingly, the court discounted Ronnie's expenses to approximately $2,101 per month. It imputed minimum wage income of $1,256.66 per month to Ronnie. Evidence indicated that Elwanda earns $5,166.67 per month, with take home pay of $3,931.92 per month. Elwanda stated that her expenses were $4,926.63 per month, although the court discounted those expenses to $3,000 per month, stating that her expenses for household maintenance appeared "high," and that her expenses for cell phone and internet were also "high." The court also concluded that the loan payments on Elwanda's vehicle and for her air conditioning unit "should be about done," and also stated that her college-aged children "should be paying for their own car insurance and clothing."
Elwanda asserts that these expenses for the phone and internet are necessary both for her employment and for the graduate school courses she is required to take for completion of her degree.
In addressing Ronnie's ability to find other employment, the court found that "based on his age and training that Respondent is not an appropriate candidate to significantly improve his lot in life through additional training and education." The court found that a minimum-wage job would be the best that Ronnie could obtain on a full-time basis and that, accordingly, he was still in need of "additional help" from Elwanda. The court found that Elwanda "has sufficient income to meet her expenses and pay the Respondent ... maintenance for some period of time," which it determined to be until April 1, 2023.
Accordingly, the court awarded Ronnie maintenance from Elwanda in the amount of $500 per month, stating that the award would have been $1,000 per month but that "[B]ased on the fault of the Respondent in causing the breakdown of the marriage, this amount would be unjust. The Respondent committed an act of domestic violence against the Petitioner, causing her to leave the marriage. It would be unfair to make her fully support him and continue the control over her." The court went on to find that Ronnie's "tremors" were disabling, despite the lack of any supporting medical records indicating that this was the case. The court also indicated that its award of maintenance would be reduced with either the receipt of future disability in an amount in excess of $1,256.66, or employment with a net income of more than $1,000.00 per month.
Elwanda filed a motion to alter, amend, or vacate the court's award of maintenance, noting that none of the expert witnesses testified that Ronnie could not maintain gainful employment and that the minimal medical records submitted by Ronnie showed no mental or physical illness which would support a finding that he was unable to support himself with gainful employment. Elwanda submitted, as evidence in support of this assertion, the Social Security disability denial letter issued to Ronnie reviewing the medical evidence he submitted for that claim and finding that, "none of your impairments either singularly or in combination would significantly affect your ability to perform basic work-related activities." Elwanda thus argued that the court's judgment was in error, and should either be amended or set aside. She also asserted that her living expenses did not permit her the funds to pay the support awarded, and that the expenses which she had outlined for the court were accurate. She also filed a transcript of the hostile voicemails that Ronnie had left on his son's answering machine. Ronnie admitted that he made the threatening calls to his son.
R. Vol. III, p. 313.
This transcript included verbal threats to defame the parties' son if, "my money's not on the d*** table Friday, every d*** penny of it ...", assertions that he was not the child's father, and threats that, "now she's [Elwanda]'s going down, a lot harder than she ever thought, she's going to go down and then don't you whine, boy." He asserted that, "the b**** is going to pay up," and that "Your mamma and the two of you all goin' down, down hard," and "You all won't ever see the light of day again."
Elwanda also filed a motion for relief from the final order, asking that she be permitted to provide the court with evidence that Ronnie had been arrested for driving under the influence in December of 2011, as well as his statement to that court in support of his claim of indigency that he was receiving food stamps, and his monthly living expenses were $394 per month. Those documents were made part of the record in this matter.
Prior to addressing the arguments of the parties on appeal, we note that we review the trial court's determinations concerning division of property in a divorce action under an abuse of discretion standard. Kleet v. Kleet, 264 S.W.3d 610, 613 (Ky. App. 2007). Indeed, the trial court has wide discretion in dividing marital property, and it is only in the case of an abuse of discretion that we will disturb its decision. Smith v. Smith, 235 S.W.3d 1, 6-7 (Ky. App. 2006). A trial court's award of maintenance is also reviewed for an abuse of discretion. Gentry v. Gentry, 798 S.W.2d 928 (Ky. App. 1996). Thus, the question is not whether reasonable judges may have heard the evidence and made a different decision, but rather, whether it can be shown that the court's decision was arbitrary, or unsupported by sound legal principles. Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). We review this matter with these standards in mind.
As her first basis for appeal, Elwanda argues that the family court abused its discretion in ordering the payment of maintenance by an abused spouse to her abuser, who provided little or no evidence supporting his claim that he was "disabled," and could no longer work as an electrician. She argues that the court's decision to decrease the maintenance award only partially, rather than entirely, as a result of the abuse constitutes reversible error. Elwanda argues that based on the entirety of the record before it, the court should have found that Ronnie was voluntarily underemployed and was using his lack of income as a means of control and continuing abuse.
Elwanda asserts that while KRS 403.200 does not expressly provide a court with a means of imputing income to a voluntarily unemployed or underemployed spouse, the interpretation of that statute by our courts has found such an action to be proper. Elwanda asserts that in the present case, the fact that Ronnie abused her and essentially forced her to end the marriage, in conjunction with his voluntary unemployment, should have persuaded the court to refuse the maintenance that Ronnie requested, as opposed to penalizing Elwanda and lowering her standard of living by ordering the maintenance to be paid monthly, albeit in a reduced amount.
See Bickel v. Bickel, 95 S.W.3d 925 (Ky. App. 2002).
As her second basis for appeal, Elwanda argues that the court's determination that it was fair and equitable to divide the parties' retirement accounts and funds equally was neither fair nor appropriate in light of the fact that Elwanda earned more income and provided more support for the family during the marriage. She asserts that she submitted both oral and written evidence of her monthly expenses, and that those expenses do not permit her to support Ronnie while continuing to meet her own needs. While acknowledging that our law requires the division of property to be made in "just proportions," Elwanda asserts that this is improper in light of her expenses as well as her larger financial effort and contribution to the marriage. Alternatively, she asserts that if this Court finds the division of property to be within the bounds of discretion granted to the trial court, then the property awarded to Ronnie should be sufficient to allow him to support himself without the need for any maintenance award.
In response to the arguments made by Elwanda, Ronnie argues that the court below did not abuse its discretion in awarding maintenance, and that he was appropriately penalized for his domestic abuse by the court's decision to reduce the maintenance award from $1000 per month to $500 per month. He also asserts that he was not required to prove that he was disabled in order to receive a maintenance award, and that the large disparity in income between the parties weighed strongly towards the granting of maintenance regardless of any disability.
In response to Elwanda's argument that the court erred in its division of marital property, Ronnie asserts that this issue was unpreserved, and was not raised in Elwanda's motion to alter or amend, nor in her prehearing statement to this Court. Accordingly, he argues that this issue is not appropriately before this Court. Alternatively, Ronnie argues that the court did not abuse its discretion in equally dividing the marital assets of the parties.
In addressing the issues raised by the parties, we turn first to the issue of division of marital property. Concerning Elwanda's argument that the court erred in its division of the marital accounts, we are in agreement with Ronnie that this issue is not appropriately before us for review. As Ronnie correctly notes, Elwanda did not raise this issue in her motion to alter, amend, or vacate below, nor did she include it in her prehearing statement to this Court, facts which Elwanda does not dispute in her reply brief to this Court. Accordingly, we find that this error is not appropriately before us for review, and we decline to address it further herein.
We turn now to the court's award of maintenance to Ronnie. KRS 403.200 sets forth the factors that the trial court may consider in awarding maintenance:
(1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:Further, as this Court held in Drake v. Drake, 721 S.W.2d 728, 730 (Ky. App. 1986), "There must first be a finding that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his reasonable needs. Secondly, that spouse must be unable to support himself through appropriate employment according to the standard of living established during the marriage."
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(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;
(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.
Concerning the second factor addressed by this Court in Drake, and set forth in KRS 403.200(1)(b), our review of the record compels agreement with Ronnie that the court below appropriately utilized the statutory framework set forth above and applied the precedent in this Commonwealth as it currently stands. Clearly, KRS 403.200(1)(b) provides that the spouse seeking maintenance has the burden of establishing through sufficient proof an inability to support himself through appropriate employment. The court below found that Ronnie met this burden after a thorough review of the evidence before it included the medical records submitted by Ronnie, evidence of the income and expenses of the parties, and its personal observations of the parties on numerous occasions.
It was undisputed that regardless of Ronnie's assertions of disability, and with the minimum wage imputed to Ronnie by the court, Elwanda earned more than four times that amount. A review of the court's order indicates a thorough analysis of the expenses, assets, financial resources, debts, and other relevant circumstances of the parties in making its determination as to maintenance, and the appropriate amount thereof. Having so found, we turn to Elwanda's assertions that whatever maintenance would normally have been appropriate should not have been awarded in light of the domestic abuse perpetrated by Ronnie, which allegedly ended the marriage of the parties.
Certainly, this Court has previously held that evidence of fault on the part of a person demanding maintenance may be considered. See Platt v. Platt, 728 S.W.2d 542 (Ky. App. 1987). After the factors have been applied and a maintenance sum determined, the court may then adjust the sum based on various factors, including the fault of one party. Thus, fault is not considered in determining whether a party is entitled to maintenance but can be considered insofar as determining the amount of maintenance. See Chapman v. Chapman, 498 S.W.2d 134, 138 (Ky. App. 1973). Our review of the court's order indicates that it applied this precedent sub judice by reducing the amount of maintenance that it would otherwise have ordered from $1,000 per month to $500 per month based upon Ronnie's fault in causing the end of the marriage. We believe this decision was one that was within the discretion of the court and, accordingly, we decline to disturb that finding on appeal.
In so finding, we certainly understand the arguments set forth by Elwanda on this issue, and her assertion that any award of maintenance, regardless of amount, may feel like an unjust penalty in light of the circumstances surrounding the end of the parties' marriage in this matter. Despite this, the test is not whether we as an appellate court would have decided the matter differently, but whether the trial court's rulings were clearly erroneous or constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). We cannot find that such was the case in this matter.
In so finding, we recognize and take note of the decisions in our sister states on similar issues, to which Elwanda directs our attention. See e.g. Mani v. Mani, 869 A.2d 904 (N.J. 2005)(Discussing holdings in California, where alimony payments to a dependent spouse who has attempted to murder the supporting spouse have been legislatively barred, and holding that:
Underlying those examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.)
Ultimately, the court below considered the criteria set forth in KRS 403.200, and applied them to the facts sub judice in a thorough and detailed order. The decision to grant or deny a maintenance award lies within a trial court's sound discretion as it applies the governing factors of KRS 403.200 to the parties' circumstances upon dissolution of marriage. Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999). Below, the court considered the evidence before it, and reached a decision as to the amount of maintenance to be awarded on the basis of its consideration of that evidence. We decline to disturb that decision on appeal.
Wherefore, for the foregoing reasons, we hereby affirm the January 5, 2012, findings of fact, conclusions of law, and final order of dissolution of marriage entered by the Christian Circuit Court, the Honorable Jason Shea Fleming, presiding.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert L. Bertram
Jamestown, Kentucky
BRIEF FOR APPELLEE: Duncan Cavanah
Hopkinsville, Kentucky
See also In Re Marriage of Sommers, 792 P.2d 1005 (1990)(Holding that:
Fault, as a term of art, is not to be considered in the determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party's conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.)
While we note such decisions with interest, the law as it currently stands in the Commonwealth is clear - fault is not to be considered with respect to whether maintenance is awarded, but only as to amount. Chapman v. Chapman, supra. The court correctly applied precedent in this regard sub judice, and we are compelled to affirm.