Opinion
No. 2003-CA-001585-MR.
October 1, 2004.
Appeal from Fayette Circuit Court, Honorable Gary D. Payne, Judge, Action No. 94-CI-01708.
John Kevin West, Lexington, Kentucky, Brief for Appellant.
Fred E. Peters, Lexington, Kentucky, Brief for Appellee.
Before: BARBER, SCHRODER, and VANMETER, Judges.
OPINION
This is an appeal by the husband from an order finding that his voluntary retirement at age 65 was reasonable and thus reducing his $1500 a month maintenance obligation to $1300 a month. The husband maintains that a mere $200 a month reduction was not enough considering the parties' current incomes and expenses. We cannot say that the lower court's findings and resultant maintenance award were clearly erroneous or an abuse of discretion. Hence, we affirm.
Frank and Barbara Bickel had been married 38 years when they divorced in 1995. At that time, Frank was 59 years of age and Barbara was 57. During the marriage, Barbara stayed home to raise the parties' three children and occasionally did bookkeeping for family members. She has no college education. Frank has three college degrees and worked during the marriage as a college music professor. In 1995, Frank was earning $5,000 a month and Barbara had no income. In the dissolution decree, the Fayette Circuit Court ordered Frank to pay Barbara $1,500 a month in maintenance for her lifetime. Barbara was also awarded the marital residence valued at $87,500, which had $14,000 equity, and one-half of Frank's retirement accounts (her half valued at $97,830).
In May of 2001, after turning 65, Frank decided to retire, and his income thereupon dropped to $2,866 a month. In August of 2001, Frank moved to terminate his maintenance obligation because of his retirement. The circuit court ruled that because Frank's retirement was voluntary, he was not entitled to termination or reduction of his maintenance obligation. This order was then appealed to this Court.
On February 28, 2003, this Court rendered an opinion affirming in part, reversing in part and remanding the lower court's order denying a reduction in maintenance. Bickel v. Bickel, Ky.App., 95 S.W.3d 925 (2002). This Court agreed that Frank was not entitled to termination of his maintenance obligation because of his retirement. However, this Court did adjudge that voluntary retirement at age 65 should not be equated with voluntary unemployment and reversed the lower court's ruling to that effect. Rather, this Court adopted the holding in Bogan v. Bogan, 60 S.W.3d 721 (Tenn. 2001), stating, "when an obligor's retirement is objectively reasonable, such retirement constitutes a substantial and material change in circumstances so as to permit modification of the support obligation." Bickel, 95 S.W.3d at 929. This Court further noted that "the trial court should examine the totality of the circumstances surrounding the retirement to ensure that it is objectively reasonable, the burden of proof being on the party seeking modification of the award." Id. This Court looked at the factors set out in Barbarine v. Barbarine, Ky.App., 925 S.W.2d 831, 833 (1996), to determine if the retirement was objectively reasonable:
the ability of both spouses to earn in the labor market, the age and health of the retiring spouse, the motives of the party retiring, the timing of the retirement, the ability of the other spouse to provide for himself or herself, the reasonableness of the early retirement, the expectations of the parties and the opportunity of the dependent spouse to prepare to live on the reduced support.
Bickel, 95 S.W.3d at 928.
This Court remanded the case to the trial court to determine if Frank's retirement was reasonable and, if so, whether a reduction in maintenance was warranted. On remand, the lower court found that Barbara's income (from social security and her portion of Frank's retirement account), absent the maintenance support, was $885 a month, compared to Frank's present income of $2,866 a month. As for Barbara's ability to provide for her own needs, the lower court found:
The facts of this case suggest that the Respondent is incapable of financially providing for herself as she forwent a career and education to devote herself to the lengthy marriage and the children of the parties. The Respondent has had to sell her home due to her inability to maintain the property. The evidence further indicates that the Respondent does not have health insurance and presumably as a result has not sought medical treatment in a number of years. The Respondent has moved into her daughter's apartment and drives an older model car in need of repair. The Respondent has limited income and barely makes ends meet, particularly after Petitioner stopped making his maintenance obligation.
Relative to the reasonableness of Frank's retirement, the trial court found:
The Petitioner has worked for many years and this Court does not find him voluntarily underemployed simply because he has chosen to retire at age sixty-five. The Petitioner was not forced to retire. The Court does note the fact that the record indicates the Petitioner chose to retire for the reasons most do[:] to enjoy himself, spend time with his family, etc. The Petitioner lives in New York with his current wife and the home they reside in does not have a mortgage. The Petitioner's current wife is not employed. The record reflects the Petitioner has had some medical problems, but that these issues did not factor into his decision to retire or prevent him from being employed. The Petitioner is an educated man with the ability to earn at least $5,000 a month in income.
In the end, the trial court sustained Frank's motion to modify the maintenance award and reduced his obligation from $1,500 a month to $1,300 a month. In so ordering, the lower court stated:
The Court feels this is an equitable compromise as both parties would be receiving about the same amount of income. The Court feels the $619 disparity is fair considering the Petitioner does not have a mortgage payment and the Respondent lost her home and is sharing quarters with her daughter.
Frank now appeals, arguing that the $200 a month reduction was insufficient under the facts of the case. Frank claims that it is inequitable that his net income of $1,566 a month (after the payment of maintenance) is $619 less than Barbara's income of $2,185 a month.
At the outset, we note that this Court's previous decision in this case is now the law of the case and we are bound by its dictates. Hogan v. Long, Ky., 922 S.W.2d 368 (1995). It is also well established that the awarding of maintenance is within the discretion of the trial court. Browning v. Browning, Ky.App., 551 S.W.2d 823 (1977). Findings of fact in a domestic case will be upheld so long as they are not clearly erroneous. Ghali v. Ghali, Ky.App., 596 S.W.2d 31 (1980).
On remand, the lower court was directed by this Court to make a finding regarding the reasonableness of Frank's retirement and, based on this finding, reconsider the motion to modify the maintenance award. The lower court essentially found that Frank's retirement was reasonable, albeit voluntary. The court then looked at the various factors in Barbarine, 925 S.W.2d at 833, in determining the amount of modification warranted. We cannot say that the findings of the trial court on this issue were clearly erroneous. Nor can we say that the trial court abused its discretion in reducing the monthly maintenance obligation by only $200. The court made specific findings as to why the $619 disparity in net incomes was justified in this case — Frank did not have a mortgage or rent to pay, whereas Barbara would have a housing expense if she was not forced to live with a family member. We would also note that Barbara's lack of health insurance would be further justification for not further reducing her maintenance award.
Frank makes much of the fact that Barbara, at age 63, has made no effort to obtain employment or pursue a college education. Given our current unemployment rate, Barbara's age, and her lack of experience and education, it would be unreasonable to expect her to obtain employment beyond a minimum wage job. We deem that it would be highly inequitable to expect Barbara, after sacrificing her earlier years to raising the family, to live off of a minimum wage position at age 63, while simultaneously allowing Frank to enjoy a voluntary retirement at almost the same age.
For the reasons stated above, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.