Opinion
NO. 2013-CA-000644-MR
02-28-2014
WILLIAM LEE MULLINS APPELLANT v. AMY TREMAINE MULLINS APPELLEE
BRIEF FOR APPELLANT: Seth R. Thomas Nicholasville, Kentucky BRIEF FOR APPELLEE: No brief was filed on behalf of the Appellee.
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 10-CI-01141
OPINION
AFFIRMING
BEFORE: LAMBERT, MAZE, AND MOORE, JUDGES. MAZE, JUDGE: Appellant, William Lee Mullins, appeals from the March 6, 2013, bench order of the Jessamine Circuit Court which denied his motion to modify the separation agreement in his dissolution action with Appellee, Amy Tremaine Mullins. For the reasons set out below, we affirm.
Appellee did not enter an appearance or file a brief before this Court. Under Kentucky Rules of Civil Procedure (CR) 76.12(8), we are entitled to adopt Appellant's portrayal of the facts and issues as true, to reverse the trial court if Appellant's brief supports such a result, or consider Appellee's silence as a confession of the trial court's error. However, these sanctions are used at our discretion and are not mandatory. See Kupper v. Kentucky Bd. of Pharmacy, 666 S.W.2d 729, 730 (Ky. 1983). Accordingly, we elect against levying any sanction against Appellee for her failure to file a brief in this appeal.
The parties divorced in May of 2011. Concurrent to their divorce, the parties executed a separation agreement which set a child support obligation for Appellant and further required that Appellant would pay maintenance to Appellee in the amount of $3,500 per month through August of 2017 and then $2,500 per month through September of 2022. In addition, the separation agreement included the following provision:
[Appellant] will maintain life insurance on his life with [Appellee] as the sole beneficiary of a death benefit of $1,000,000 until September, 2022. This satisfies any obligation of his estate for child support or maintenance in the event he predeceases the termination dates of those obligations.
On February 7, 2013, Appellant filed a motion in which he sought permission from the court to modify his life insurance policy. Therein, Appellant argued that, because his total remaining child support and maintenance obligation was continuing to diminish as time passed, that the life insurance would result in a windfall to Appellee in the event of Appellant's death. Appellant's motion was denied and this appeal followed.
Appellant argues that the trial court erred when it denied his motion because it lacked the substantial evidence to support such a denial. He also maintains that this Court's inquiry on review is whether the trial court's denial of his motion was clearly erroneous and lacking in substantial evidence. We disagree. Trial court rulings on motions to modify both child support and maintenance alike are reviewed for an abuse of discretion. Tudor v. Tudor, 399 S.W.3d 791, 793 (Ky. App. 2013); Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459, 461 (Ky. App. 2007). Here, the provision in question clearly indicates that it was created to satisfy both the child support and maintenance obligations of Appellant in the event of his death. Thus, our review is limited to whether the trial court abused its discretion when it denied modification of that provision.
A previously approved settlement agreement may be later modified if it can be shown that the agreement has become unconscionable because of changed circumstances. Money v. Money, 297 S.W.3d 69, 72 (Ky. App. 2009). Changed circumstances are determined by comparing the parties' current circumstances to those at the time the decree was entered. Block v. Block, 252 S.W.3d 156, 160 (Ky. App. 2007). It is the burden of the party seeking modification to prove the existence of changed circumstances. Peterson v. Peterson, 583 S.W.2d 707, 712 (Ky. App. 1979). The only changed circumstance Appellant identifies is his newly acquired understanding of the life insurance provision's long-term implications. There has been no change in the parties' incomes or living situations as compared to that at the time of entry of the decree. Block, 252 S.W.3d 156. Instead, Appellant's argument consists only of information which was readily available at the time of the agreement.
This Court has previously held that "an agreement could not be held unconscionable solely on the basis that it is a bad bargain." Peterson, 583 S.W.2d at 712. Appellant's sole argument attempts to cast the separation agreement as just that: a bad bargain. This is insufficient. Because Appellant fails to provide or otherwise allege a true change in circumstances, we hold that the trial court did not abuse its discretion when it denied his motion to modify the settlement agreement.
For the foregoing reasons, the March 6, 2013, order of the Jessamine Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Seth R. Thomas
Nicholasville, Kentucky
BRIEF FOR APPELLEE: No brief was filed on behalf of the
Appellee.