Opinion
NO. 2011-CA-001960-MR
02-22-2013
MICHAEL E. STIPP APPELLANT v. ANNA M. ST. CHARLES APPELLEE
BRIEFS FOR APPELLANT: James Dean Liebman Frankfort, Kentucky BRIEF FOR APPELLEE: James P. McCrocklin Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 07-CI-501349
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Michael Stipp appeals from a September 26, 2011 order of the Jefferson Family Court ending his ex-wife's maintenance obligation on the basis of significantly changed circumstances. We affirm.
I. Background
Anna St. Charles and Michael were married in 1987. When their dissolution proceedings were concluded in 2007, Anna was employed by the Louisville Courier-Journal as a vice president of advertising, earning an annual salary of $235,000, which was supplemented by bonuses, stock options, and stock units. Michael was not employed, but had spent the last ten years of the marriage staying at home to care for the parties' minor son, who has since attained the age of majority. He had no income.
Financial matters involved in the dissolution were resolved in an order dated December 4, 2007. Anna was ordered to pay Michael maintenance in the amount of $2000 per month for 72 months, beginning November 2007.
In March 2011, Anna left her employment following exit negotiations with her employer. Michael believes she quit, and is therefore voluntarily unemployed, but Anna maintains she was forced to choose between being fired or resigning and receiving a severance package which provided her an additional three months' salary. Thus, she claims, she was essentially forced into unemployment. Since the end of Anna's employment at the Courier-Journal, she has remained unemployed and subsists on $712 in monthly unemployment benefits.
Anna returned to the family court in April 2011, requesting that her maintenance obligation be terminated due to her change in employment status. Michael objected. He argued that despite her unemployment, Anna still owned considerable resources which she could use to satisfy her remaining maintenance obligation; therefore, he claimed, the change in circumstances was not so great as to render the maintenance award unconscionable.
Michael also requested that Anna produce certain documents and other information regarding her financial status. Michael believed Anna's response was unsatisfactory and filed a motion to compel production of the missing information. He claims the family court never ruled on his motion.
Following a hearing, the family court determined the change in Anna's financial circumstances was significant and required termination of the maintenance order. In so doing, the family court found that Anna had not quit her job, but was terminated following a series of layoffs at the Courier-Journal. Anna had made very extensive efforts to find employment, including hiring executive search firms and applying for more than 100 positions.
The family court also made findings regarding Anna's financial wellbeing, including that her reasonable monthly expenses greatly exceeded her income from unemployment benefits. Anna paid all the expenses of the parties' son, including his college tuition and living expenses. Their son suffered from behavioral issues which made it difficult to keep a job and support himself. Although it found she did have considerable assets in the form of an investment account, an IRA, and home equity, the family court refused to require a person in her mid-fifties to deplete them to meet her maintenance obligation.
Findings concerning Michael included the following: Michael worked "very-part time," on average about seventeen hours per month. Aside from money received from Anna's maintenance payments, he earned $300-$500 per month. He was capable of working more and earning up to $2,262 per month, but chose to remain unemployed.
For all these reasons, the family court found it was unconscionable to require Anna to continue her monthly maintenance payments. Michael appealed.
II. Discussion
Michael first contends the family court erred by declining to rule on his motion to compel the production of certain information he requested during discovery but which Anna did not produce. He has not, however, identified any legal authority in support of his argument. We are not obligated to consider the argument and decline to do so. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
Instead of citing pertinent authority, Michael has identified two opinions and one statute which he claims render the information he was seeking "relevant and important." These authorities, however, address only the general principles underlying a decision to modify maintenance, and do not establish the standards for a trial court's treatment of discovery requests. The authorities are therefore irrelevant to Michael's argument that the family court's purported refusal to address his motion to compel was in error. He has not provided the standards by which we must measure the denial of such a request and so has effectively asked us to construct his argument for him. Hadley, 186 S.W.3d at 759.
Michael's second argument is that, because Anna failed to satisfy her burden of proof, ending her maintenance obligation was reversible error. We disagree.
Absent a settlement agreement which provides otherwise, modification of a maintenance decree is permissible "only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." KRS 403.250(1). Unconscionable means "manifestly unfair or inequitable." Combs v. Combs, 787 S.W.2d 260, 261 (Ky. 1990). "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, 159 (Ky. App. 2007).
"We review the family court's determination regarding a motion to modify maintenance for an abuse of discretion." Id. The factual findings underlying such a decision, however, can be disturbed only if they are clearly erroneous. Id. A finding of fact is not clearly erroneous unless it is not supported by "[e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable [persons]." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes and quotations omitted).
The family court's findings of fact are not clearly erroneous; Anna's sworn testimony and documentary evidence support them. Anna provided evidence that upon entry of the maintenance order, she earned approximately $19,625 per month, but had since become unemployed due to forces beyond her control and at her employer's initiation. As a result, her income dropped drastically. She testified that she paid all of the parties' son's expenses in addition to her own. Anna stated she had persistently searched for new employment and was willing to relocate to obtain employment. Michael admitted to working only sporadically and to being physically able to work more than he did. He stated that he chose to "live within his means," his means apparently including the monthly maintenance payment, rather than seeking steadier employment which would generate more income and allow him to provide for himself.
Furthermore, the only matter in dispute was whether Anna had quit her employment or had been forced to leave. The family court chose to believe Anna's testimony and declined to find that she was voluntarily unemployed.
Given the family court's findings of fact and the evidence supporting them, it was not an abuse of discretion to conclude it was unconscionable to continue to enforce the maintenance obligation. The evidence revealed that Anna had experienced a dramatic change in income and that Michael was able to support himself.
For the foregoing reasons, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: James Dean Liebman
Frankfort, Kentucky
BRIEF FOR APPELLEE: James P. McCrocklin
Louisville, Kentucky