Opinion
NO. 2014-CA-001895-MR
04-15-2016
MICHAEL DALE CRUMP APPELLANT v. TENA LYNN CRUMP APPELLEE
BRIEF FOR APPELLANT: G. William Bailey, Jr. Elizabethtown, Kentucky BRIEF FOR APPELLEE: Joseph J. Wantland Shepherdsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 13-CI-00823 OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. CLAYTON, JUDGE: Michael Dale Crump appeals the award of maintenance to Tena Lynn Crump in the October 30, 2014 Bullitt Family Court's Findings of Fact, Conclusions, and Judgment. Furthermore, he appeals from December 3, 2014 Bullitt Family Court Orders mandating that he pay $4,875 in maintenance arrearage to Tena Lynn Crump and her attorney fees in the amount of $250. After careful consideration, we vacate and remand this matter
FACTS
Michael and Tena were married on March 17, 1977, and had three children, who are now adults. Currently, they have joint custody of a twelve-year-old granddaughter. Tena filed a petition for dissolution of the marriage on August 8, 2013. In the petition, she did not seek an award of maintenance. Later, on February 26, 2014, Tena filed a motion to amend the petition and sought both temporary and permanent maintenance. The family court granted the motion to amend the petition. A hearing was set for July 3, 2014.
The parties' marriage was dissolved on July 7, 2014, by the entry of an agreed findings of fact, conclusions of law, and judgment. The agreed judgment resolved all property issues and specified that the only remaining issue was whether Tena would receive maintenance. When the parties proffered the agreed order to the family court, Michael supplemented it with a document, entered into the record, which was titled "Stipulation of Respondent Concerning Distribution of Marital and Non-Marital Assets of Petitioner and Respondent." The document showed the division of the marital and non-marital funds. The document stated that both Michael and Tena received from the division of the marital estate approximately $115,000 in cash [sale of the marital home], and $108,000 [one-half of Michael's 401-K and Roth IRA accounts.] The document also cites the value of Tena's non-marital assets, $153,000, which was an inheritance she received in 2013. This valuation is found on her August 8, 2013 Verified Disclosure Statement.
A hearing was held on July 3, 2014, on the issue of maintenance. Both parties testified. Pertinent testimony revealed that the granddaughter, with whom they share joint custody, receives $327 from Social Security based on her mother's disability. The parties agreed that Tena would receive this check.
Regarding employment, Tena works approximately 20 hours per week as a housekeeper at Country Inn and Suites earning $7.25 per hour. She is looking for a full-time position possibly as a medical assistant. The family court found that Tena could work full-time, which would provide her with a monthly gross income of $1,256.67. Michael works for Ruan Logistics, and his gross weekly income is $860 per week or $3,726.67 per month.
The parties also provided information about their monthly expenses. Tena listed monthly expenses of $2,402 per month. Michael's monthly expenses are $2,938.67. Regarding Tena's inheritance, at the time of the hearing, the funds in the inheritance had been exhausted, but Tena used $90,000 of it as a down payment on a $220,000 home.
On October 30, 2014, the family court entered findings of fact, conclusions, and judgment, which required that Michael pay Tena monthly maintenance of $975, retroactive to July 7, 2014. Michael appealed this judgment. Next, on December 3, 2014, the family court entered three orders. One order denied Michael's supersedeas bond for insufficient security. Another order mandated that he pay $4,875 in maintenance arrearage to Tena and her attorney fees in the amount of $250. Michael filed an amended notice of appeal, which was granted by the Court of Appeals. The issues under appeal have been stayed by the posting of a supersedeas bond by Michael.
ISSUES
On appeal, Michael argues that the family court erred when it awarded maintenance to Tena and attorney's fees to Tena's attorney. Regarding the maintenance award, Michael contends that the family court must determine whether Tena was statutorily entitled to maintenance, and if so, the amount and the duration of the maintenance must be supported by the evidence. He disputes the family court's decision because, according to him, it was not in conformity with Kentucky Revised Statutes (KRS) 403.200. Further, Michael contends that the family court erred in its award of attorney's fees because it failed to make factual findings as to the financial resources of both parties.
Therefore, Michael maintains that the family court exceeded its discretion and based its decision on erroneous findings of fact, which were unsupported by the evidence, and consequently, the family court's decision was arbitrary, unreasonable, unfair, and/or unsupported by sound legal principles. Tena responds that the family court correctly ascertained that she had insufficient property to provide for her needs, and therefore, the award of maintenance was appropriate.
STANDARD OF REVIEW
While the award of maintenance comes within the sound discretion of the trial court, a reviewing court will not uphold the award if it finds the trial court abused its discretion or based its decision on findings of fact that are clearly erroneous. Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). With these standards in mind, we turn to the case at bar.
ANALYSIS
Maintenance
The decision to award maintenance is within the sound discretion of a family court. Browning v. Browning, 551 S.W.2d 823 (Ky. App. 1977). However, an award of maintenance must satisfy the statutory provisions of KRS 403.200(1)(a) and (b). Drake v. Drake, 721 S.W.2d 728 (Ky. App. 1986). To properly award maintenance under KRS 403.200, a court must find: (1) the spouse seeking maintenance 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.
In the case at hand, Tena received from the apportionment of the marital estate, among other things, $115,000 in cash, and $108,000 in a Qualified Domestic Relations Order (QDRO). But a review of the family court's findings shows that it states each party received $115,290.27 in the marital settlement and that these funds were tied up in retirement and not available for investment. This finding is inaccurate. Although the $108,000 is not a liquid asset, the family court failed to consider the impact of the $115,000 in cash received by Tena. Finally, Tena was to receive the $327 social security check, which though it was to support her granddaughter, would still mitigate some of Tena's household expenses.
Moreover, Tena's inheritance, although greatly diminished by the time of the hearing, was used by her to make a $90,000 down payment on a new residence, valued at $220,000. The family court has dual responsibilities - to make relevant findings of fact and to exercise its discretion in making a determination on maintenance in light of those facts. Powell v. Powell, 107 S.W.3d 222, 227 (Ky. 2003). Kentucky law has stated that if income from a spouse's non-marital property, combined with his or her proportion of marital property, would provide for his or her reasonable needs, then maintenance should not be awarded. Owens v. Owens, 672 S.W.2d 67, 69 (Ky. App. 1984); Lampton v. Lampton, 721 S.W.2d 736, 738-39 (Ky. App. 1986). The family court, in the case at bar, did not address the implications of Tena's inheritance.
Hence, the family court's findings are insufficient for us to evaluate whether Tena will have sufficient income, including financial resources, to cover her reasonable monthly needs. See Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). Since the family court did not adequately address Tena's financial resources when it failed to consider the $115,000 in marital funds and the inheritance, we believe the family court's findings of fact are erroneous.
Michael also argues that the family court erred as to the amount and duration of the maintenance awarded to Tena. He specifically argues that the family court erroneously awarded maintenance of $975 per month to Tena. KRS 403.200(2) governs the amount and duration of maintenance and requires the court to consider "all relevant factors." The statute requires the family court to consider the financial resources of the party seeking maintenance, including apportioned marital property; the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age, and the physical and emotional condition of the spouse seeking maintenance; and, the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. KRS 403.200.
After consideration of these factors, it is axiomatic that the amount and duration of a maintenance award are within the sound discretion of the circuit court. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). Nonetheless, since the family court's findings regarding Tena's financial resources were erroneous, the analysis of the pertinent factors, based on the resources of the parties, is also erroneous. Thus, the family court must reexamine them in light of Tena's assets.
Lastly, we note some confusion from the wording of the family court's judgment regarding the duration of the maintenance. In fact, Michael references the maintenance as "permanent, open-ended maintenance." In the findings, the family court judgment states "[t]he Court find it is reasonable for the Respondent to pay the sum of $975.00 per month subject to review at the time of retirement or when the Petitioner begins to draw social security." Then, in the conclusions, the family court judgment provides that ". . . it is ordered and adjudged by the Court that the Respondent shall pay the Petitioner $975.00 per month until death of either party or remarriage of the Petitioner with the Court reserving the right to review the maintenance at the time of the retirement of the parties or at such time as the Petitioner begins to draw Social Security."
Neither party disputes that this is a final order and the judgment includes the language "[t]his is a final judgment and there is no just reason for delay." But the judgment itself, although requiring it to be paid until death or remarriage of Petitioner, limits the duration of maintenance until the parties retire or Petitioner draws social security. Notwithstanding that an order of maintenance may be modified under KRS 403.250 upon a showing of changed circumstances, the language used in the judgment on one hand seems permanent when it requires maintenance "until death of either party or remarriage of the Petitioner," but later puts a condition on the duration of the maintenance. It is not apparent whether a motion to modify maintenance under KRS 403.250 would be necessary or merely a motion to terminate the maintenance when the conditions occur. The implication of the condition makes the duration of the maintenance unclear. Upon remand, the family court, if it should again ascertain that maintenance is necessary, should clearly enunciate the duration of the maintenance.
Attorney's Fees
Attorney's fees are allowed under KRS 403.220 in any proceeding under Chapter 403 (the marriage dissolution and child custody chapter). The Court "after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending the proceeding." Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014). This statute authorizes a family court to order "one party to a divorce action to pay a 'reasonable amount' for the attorney's fees of the other party, but only if there exists a disparity in the relative financial resources of the parties in favor of the payor." KRS 403.220; Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001).
The standard of review for an award of attorney fees is set out in Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008), as follows:
Attorney fees may be awarded to a party pursuant to KRS 403.220. . . .The statute states that the court should consider "the financial resources of both parties [.]" KRS 403.220. Further, the statute states that the court may award a "reasonable amount" for the fees. Id. An award of fees is reviewed by this court under an abuse of discretion standard. Neidlinger, 52 S.W.3d at 520.
Accordingly, for the family court to award a requesting party's attorney's fee, it must consider the financial resources of the parties. The Kentucky Supreme Court has held that a number of factors go into determining whether and how much of an attorney's fee should be awarded. Sexton v. Sexton, 125 S.W.3d 258, 272-73 (Ky. 2004).
Similar to the facts in Sexton, we do not know if the family court considered these factors. Therefore, we vacate the family court's award of attorney's fees for $250 since no findings were made regarding the disparity between the financial resources of the parties and remand for a consideration of these factors. The failure to make such findings is an abuse of discretion.
CONCLUSION
Therefore, we vacate the judgment of the Bullitt Circuit Court concerning maintenance and attorney's fees and remand the case for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: G. William Bailey, Jr.
Elizabethtown, Kentucky BRIEF FOR APPELLEE: Joseph J. Wantland
Shepherdsville, Kentucky