Opinion
NO. 2018-CA-000068-MR
04-05-2019
VICKI LYNN LIST APPELLANT v. JOHN KIRTLEY LIST APPELLEE
BRIEF FOR APPELLANT: Albert William Barber, III Owensboro, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JULIA H. GORDON, JUDGE
ACTION NO. 16-CI-00173 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Vicki Lynn List ("Appellant") appeals from an order of the Daviess Circuit Court modifying maintenance. Appellant argues that the circuit court abused its discretion in reducing the maintenance obligation of John Kirtley List ("Appellee") from $500 per week to $200 per week, and erred in concluding that Appellant was voluntarily unemployed. We find no error, and AFFIRM the order on appeal.
Facts and Procedural History
The parties were divorced by way of a decree of dissolution entered on August 4, 2016. Prior to the dissolution, the domestic relations commissioner filed findings of fact and a recommended order requiring Appellee to pay maintenance to Appellant in the amount of $500 per week for 10 years or the death of either party. This obligation was based on Appellee's monthly income of approximately $7,600 to $8,000 per month. The recommendations were adopted by the circuit court.
On August 9, 2017, Appellant filed a motion and affidavit for contempt alleging that Appellee failed to pay maintenance as previously ordered. Appellee responded by filing a motion to modify maintenance. In support of the motion, Appellee alleged a material change in circumstance based on the loss of his employment and subsequent reemployment with a substantially reduced salary.
After hearing proof, the Daviess Circuit Court entered an order on August 30, 2017, finding Appellee to be in contempt for failing to pay maintenance. Appellee was sentenced to seven days in jail, with the finding of contempt being purged and no jail time required if he resumed paying maintenance plus $50 per week toward the arrearage. The court entered an order granting Appellant a judgment in the amount of $2,700 representing the arrearage up to September 1, 2017.
On September 28, 2017, a final hearing was conducted where Appellee testified that he last worked as an iron worker/rigger at LPR from June 2016 to June 2017, when his employment was terminated. Appellee commenced new employment on August 14, 2017, with Jax's Industrial Contracting at a gross monthly income of $3,466.
On January 2, 2018, the Daviess Circuit Court entered an order which forms the basis the instant appeal. The court examined the parties' respective incomes, and found that Appellee's income was substantially reduced by virtue of his prior employment being terminated. Citing Kentucky Revised Statute ("KRS") 403.200(2), the court also determined that Appellant was voluntarily unemployed. In support of this conclusion, the court found that Appellant was able-bodied, did not testify about any health concerns and was capable of maintaining at least part-time, minimum wage employment. The court then ordered Appellee to pay to Appellant the sum of $200 per week in maintenance. It concluded that this amount would cover Appellant's reasonable needs such as her $500 rent payment and $150 propane bill, while allowing Appellee to meet his own needs. This appeal followed.
Argument and Analysis
Appellant now briefly argues that the Daviess Circuit Court abused its discretion when it reduced Appellee's maintenance obligation from $500 per week to $200 per week. She maintains that Appellee's change in his employment status and reduction in income was voluntary and purely self-serving because Appellee wanted to stay closer to home and do less work-related travel. Additionally, Appellant contends that the circuit court abused its discretion in concluding that she should be able to obtain at least part-time, minimum wage employment, and questions why the court did not make such a finding as to Appellee. She seeks an Opinion reversing the order on appeal. Appellee did not file a responsive brief.
Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). At our discretion, we may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). As the issues presented are justiciable by reference to the record, we accept the Appellant's statement of the facts and issues as correct.
Maintenance payments may be modified "upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." KRS 403.250(1). Maintenance is unconscionable if it is "manifestly unfair or inequitable." Combs v. Combs, 787 S.W.2d 260, 261 (Ky. 1990) (citation and quotation marks omitted). "To determine whether the circumstances have changed, we compare the parties' current circumstances to those at the time the court's separation decree was entered." Block v. Block, 252 S.W.3d 156, 160 (Ky. App. 2007). The trial court's modification of maintenance is reviewed for abuse of discretion. Id. at 159. Abuse of discretion is found when a decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010) (citing McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008)).
The question before us is whether the Daviess Circuit Court abused its discretion in concluding that Appellee experienced "changed circumstances so substantial and continuing as to make the terms [of the original maintenance award] unconscionable." KRS 403.250(1). Having closely examined the record and the law, we must conclude that the circuit court did not abuse its discretion. A substantial reduction in income may warrant a modification of maintenance. Mudd v. Mudd, 903 S.W.2d 533, 534 (Ky. App. 1995). The circuit court found that Appellant's employment with LPR was terminated in June 2017, and that he began employment with Jax's Industrial Contracting about two months later at a substantially reduced income. This finding is supported by substantial evidence in the record. While Appellant contends that Appellee's change in employment represents voluntary underemployment sufficient to impute a higher income to Appellee for the purpose of calculating maintenance, she does not direct our attention to anything in the record in support of this claim nor to any supportive case law. A trial court's rulings are presumed to be correct, and the burden rests with the appellant to overcome this presumption. Stuckert v. Keller, 430 S.W.2d 773, 777 (Ky. 1968). Appellant has not met this burden.
Appellee had a gross income of approximately $7,600 to $8,000 per month at the time of dissolution. After moving to Jax's Industrial Contracting, his gross monthly income was reduced to about $3,466 per month. The circuit court found that this represented an approximately 60% reduction in income. --------
Appellant also very briefly asserts that the circuit court abused its discretion in concluding that she should be able to obtain at least part-time, minimum wage employment. In concluding that Appellant was voluntarily unemployed, the circuit court cited McGregor v. McGregor, 334 S.W.3d 113, 117 (Ky. App. 2011) for the proposition that KRS 403.200(2) allows the court to impute income to a voluntarily unemployed spouse to determine the spouse's entitlement to maintenance. The court found that Appellant was 50 years old at the time of the hearing, was abled-bodied and had not testified as to any health concerns rendering her unable to work. It also recognized that Appellant's earning potential was limited given the long lapse in her employment history, and her lack of skills and higher education.
The circuit court's finding of voluntary unemployment is supported by the record, and is therefore not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Artrip, 311 S.W.3d at 232. Accordingly, we cannot conclude that the circuit court abused its discretion on this issue. Block, supra. Appellant's argument on this issue consists of one sentence without any reference to the record or the case law. She has not overcome the presumption that the finding of voluntary unemployment was correct, Stucker, supra, and we find no error. Further, once Appellee's substantial and continuing change in circumstances were proven, Appellant's earning power and income were largely irrelevant on the issue of whether Appellee's obligation should be modified.
Conclusion
For the foregoing reasons, we AFFIRM the order of the Daviess Circuit Court granting Appellee's motion to modify maintenance.
ALL CONCUR. BRIEF FOR APPELLANT: Albert William Barber, III
Owensboro, Kentucky NO BRIEF FOR APPELLEE