Opinion
NO. 2015-CA-001318-MR
02-10-2017
KEVIN P. SEREY APPELLANT v. ELIZABETH M. SEREY APPELLEE
BRIEFS FOR APPELLANT: Diana L. Skaggs Elizabeth M. Howell Louisville, Kentucky BRIEF FOR APPELLEE: J. Russell Lloyd Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 11-CI-00851 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: Kevin P. Serey appeals from an order of the Oldham Circuit Court denying his motion to terminate his maintenance obligation to Elizabeth M. Serey ("Beth"). Finding no error, we affirm.
Kevin and Beth divorced in April 2012. Pursuant to the parties' marital settlement agreement, Kevin agreed to pay maintenance to Beth for 72 months. The agreement provided that the maintenance obligation would terminate upon Beth's remarriage or cohabitation; however, the parties did not specifically define the term "cohabitation." In February 2015, Kevin filed a motion to terminate maintenance alleging Beth was cohabitating with Zachery Callery ("Zach"), which warranted termination pursuant to the settlement agreement. Kevin alternatively argued the court should terminate maintenance pursuant to KRS 403.250 because Beth's relationship with Zach constituted a new financial resource rendering the maintenance obligation unconscionable.
Kevin agreed to pay $7500 per month for the first 42 months and $6500 per month for the remaining 30 months.
In May 2015, the court held a lengthy evidentiary hearing on the motion. Beth testified she and Zach had been dating for approximately two years, and the relationship was monogamous and exclusive. Beth asserted they did not jointly own property, noting each maintained separate households and financial obligations. According to Beth, they spent the night at either her house or his house when neither of them had parenting time with their children. Zach offered consistent testimony, and he acknowledged Beth did not want their relationship to jeopardize her maintenance. The court rendered a lengthy order denying Kevin's motion, concluding Beth and Zach were not cohabitating and finding continued enforcement of the maintenance obligation was not unconscionable. This appeal followed.
"The determination of questions regarding maintenance is a matter which has traditionally been delegated to the sound and broad discretion of the trial court, and an appellate court will not disturb the trial court absent an abuse of discretion." Bickel v. Bickel, 95 S.W.3d 925, 927-28 (Ky. App. 2002). Further, we will not disturb the trial court's findings of fact unless they are clearly erroneous, bearing in mind that the lower court was in the best position to weigh the evidence and assess witness credibility. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Kevin first argues the court abused its discretion when it failed to terminate maintenance pursuant to the terms of the settlement agreement. He relies on Cook v. Cook, 798 S.W.2d 955 (Ky. 1990) and Bennett v. Bennett, 133 S.W.3d 487 (Ky. App. 2004), to support his argument.
In Cook, supra, the Kentucky Supreme Court considered whether a cohabitation provision in the parties' marital settlement agreement warranted termination of Mr. Cook's maintenance obligation. Cook, 798 S.W.2d at 956. The Court considered the definition of cohabitation found in Black's Law Dictionary, 5th Edition: "To live together as husband and wife. The mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations." Id. at 957. The Court determined there was no cohabitation by Mrs. Cook, stating:
They do not live in the same household, and neither of them has assumed an obligation to pay the household bills or personal expenses of the other. They have not moved household furnishings from one house to the other. Although he visits in her home on most evenings, he returns to his own home to spend the night, and they
do not engage in sexual relations when her son, who lives with her, is present in the home.Id.
On the other hand, in Bennett, supra, this Court considered the analysis of Cook and concluded cohabitation had occurred in violation of the parties' settlement agreement. Bennett, 133 S.W.3d at 488. The Court stated, in relevant part:
Diane and Donald did not include any definition of cohabitation in their separation agreement; however, her relationship with Friedman qualifies as cohabitation whether considered in light of sexual involvement or living in the same house. The evidence introduced from Diane and Friedman plainly indicated that he had spent every night with her in her house since July 2001 unless he happened to be out of town on business and unaccompanied by Diane.Id. at 490.
Here, Kevin challenges the sufficiency of the evidence as to cohabitation, pointing out the testimony established Zach and Beth went on vacations together, gave one another gifts on holidays, and regularly spent the night together.
We are mindful the trial court was in the best position to assess witness credibility and weigh the conflicting evidence. Croft v. Croft, 240 S.W.3d 651, 655 (Ky. App. 2007). The trial court heard lengthy testimony and found Beth's testimony to be credible regarding the status of her relationship with Zach. Beth testified they did not spend every night together; rather, they only spent the night together if neither of them had overnight parenting time. In its ruling, the court determined Beth and Zach each maintained separate homes and financial responsibilities, and the court specifically considered the Cook definition of cohabitation. The court concluded that, while Beth and Zach were in a long-term dating relationship, they were not living together and had not assumed the duties and obligations of a married couple. After reviewing the record, we believe the court's decision was supported by substantial evidence. The court did not abuse its discretion by denying Kevin's motion to terminate maintenance.
Next, Kevin argues in the alternative his maintenance obligation was unconscionable pursuant to KRS 403.250 because Beth's relationship constituted a new financial resource. Kevin challenges the sufficiency of the evidence supporting the court's decision.
KRS 403.250(1) provides "maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." In Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990), the Court explained "that a maintenance recipient's cohabitation can render continued maintenance 'unconscionable' if the nature of the cohabitation constitutes a new 'financial resource[.]'" The Court set forth criteria to consider in evaluating whether a relationship constituted a new financial resource, including: 1) duration, 2) economic benefit, 3) the parties' intent, 4) nature of the living arrangements, 5) nature of the financial arrangements, and 6) likelihood of a continuing relationship. Id.
The trial court considered the Combs factors, acknowledging the relationship was long-term and that Beth did not want the relationship to jeopardize her receipt of maintenance; however, the court also pointed out Beth and Zach had not pooled their finances or established a common household. The court's order stated, in relevant part:
There was no evidence that the Respondent is in a better financial situation than she was when the divorce was final. Her debt obligations have remained the same and she is not living an extravagant life. While Petitioner makes much hay of Respondent's travels over the last two years, the Court will note that several trips made by the Respondent and Mr. Callery were to visit family members in Owensboro KY, Morehead KY, and Massachusetts. On those trips, very few travel expenses were incurred. The trip to Toronto was a gift for Respondent's 40th birthday. Many of the travel arrangements were paid for with points from Mr. Callery's credit accounts. The Court does not find that these trips are proof a better financial situation for the Respondent, especially in light of the fact that even without an income, she receives $7,500 per month in maintenance, and $1,200 per month in child support.
We reiterate the court heard lengthy testimony regarding Beth's relationship with Zach, and the court was in the best position to weigh the evidence. Croft, 240 S.W.3d at 655. The court fully considered the evidence and concluded the relationship did not create a new financial resource for Beth. After reviewing the record, we believe the court's decision was supported by substantial evidence. The court did not abuse its discretion by denying Kevin's motion to terminate maintenance.
Kevin next challenges the court's pretrial order quashing a subpoena duces tecum served upon Zach. Zach objected to the discovery request as unreasonable and oppressive pursuant to CR 45.02. Kevin argued Zach's personal and financial records were relevant to determine whether Zach was financially supporting Beth. The trial court granted Zach's motion to quash the subpoena.
Kevin requested documents from Zach spanning the two-year period he had been dating Beth, including: Zach's bank and credit card statements, calendars, photographs that included Beth, emails and text messages concerning Beth, and receipts for travel expenses or gifts for Beth.
"Our standard of review in matters involving a trial court's rulings on evidentiary issues and discovery disputes is abuse of discretion." Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
The record reflects Beth provided a plethora of her financial and personal documents pursuant to Kevin's discovery request. Further, Kevin deposed Zach and questioned him regarding his financial contributions to Beth. Although Kevin was dissatisfied Zach's testimony indicated he was not supporting Beth financially, by deposing Zach, Kevin obtained the information in the least intrusive and burdensome manner. See Primm v. Isaac, 127 S.W.3d 630, 638 (Ky. 2004). After careful review, we agree with the trial court that the voluminous discovery sought from Zach was unreasonable and oppressive; consequently, we are not persuaded the trial court abused its discretion by quashing the subpoena.
Finally, Kevin argues the trial court's decision was erroneous on public policy grounds. We note, however, Kevin failed to cite any legal authority that supports a public policy argument. "Our courts have established that an alleged error may be deemed waived where an appellant fails to cite any authority in support of the issues and arguments advanced on appeal." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Accordingly, we decline to address this argument on appeal.
For the reasons stated herein, the order of the Oldham Circuit Court is affirmed.
ACREE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
TAYLOR, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION.
ACREE, JUDGE, CONCURRING: I concur, but with misgivings.
Kevin and Beth entered into a maintenance agreement in 2012 based on jurisprudence articulated to fit into a 1990 culture. Even though society's concept of marriage and divorce and cohabitation and pair-bonding has changed dramatically since Cook, that jurisprudence still prevails.
Cook v. Cook, 798 S.W.2d 955 (Ky. 1990).
In Cook, cohabitation was defined by the now nearly forty-year-old, 1979 version of Black's Law Dictionary as follows:
To live together as husband and wife . The mutual assumption of those marital rights, duties, and obligations which are usually manifested by married
people , including but not necessarily dependent on sexual relations.Cook, 798 S.W.2d at 957 (emphasis added; quoting Cohabitation, Black's Law Dictionary (5th ed. 1979)). However, the modern edition of Black's does not define cohabitation in the context of marriage or husband and wife or even marital duties and obligations. The modern definition of cohabitation is:
The fact, state, or condition of living together, esp. as partners in life , usu. with the suggestion of sexual relations.Cohabitation, Black's Law Dictionary (10th ed. 2014) (emphasis added).
Beth makes a good case that she and Zach have become partners in life. As she candidly said in her brief, she and Zach "are in a committed relationship . . . aware that cohabitation [in the Cook sense] could affect her spousal support[.]" She acknowledged that the only nights she and Zach did not live together in one or the other of their homes was when their children were staying with them. Even with their children present, they would spend nights together on "some holidays and vacations[.]" Under the current edition of Black's, that might well be enough to constitute cohabitation.
Kevin's and Beth's children were 10, 13, and 18 at the time of the divorce in 2012.
Beth says in her brief that she and Zach have travelled together to "French Lick, Owensboro, Cozumel, Toronto, Topsail/Seaside [North Carolina resort], Nashville, the Cayman Islands, Massachusetts, and Gatlinburg . . . ." --------
But even Kevin relies on Cook and its older definition. Under that 1990 case, a committed relationship between partners in life, as Beth and Zach clearly have become, is not enough to constitute cohabitation. Cook requires the intermingling of money and personal property and the mutual assumption of legal rights, duties and obligations. Sounding much like a contract, that is the definition of cohabitation Kevin and Beth chose as the standard for terminating maintenance.
Kevin lost his argument in circuit court because Beth and Zach have the uncommon financial ability to maintain two households as partners in a comfortable lifestyle while creating the impression, for legal purposes, that they are not cohabitating. He loses in this Court because such a conclusion under Cook is not an abuse of the circuit court's discretion. Therefore, I must concur. BRIEFS FOR APPELLANT: Diana L. Skaggs
Elizabeth M. Howell
Louisville, Kentucky BRIEF FOR APPELLEE: J. Russell Lloyd
Louisville, Kentucky