Opinion
2023-CA-0263-MR
09-13-2024
CLIFTON TODD SWINFORD APPELLANT v. CARLA SUE SWINFORD APPELLEE
BRIEF FOR APPELLANT: Bradly A. Miller Paducah, Kentucky BRIEF FOR APPELLEE: Tiffany Gabehart Poindexter Paducah, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE DEANNA WISE HENSCHEL, JUDGE ACTION NO. 22-CI-00027
BRIEF FOR APPELLANT: Bradly A. Miller Paducah, Kentucky
BRIEF FOR APPELLEE: Tiffany Gabehart Poindexter Paducah, Kentucky
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
OPINION
ACREE, JUDGE
Appellant, Todd Swinford, appeals the McCracken Family Court's January 30, 2023, Final Hearing Order and Supplemental Decree. He challenges the family court's maintenance award to Appellee, Carla Swinford, as well as its decision to award Carla attorneys' fees. We affirm.
BACKGROUND
The parties were married in 2002. Though Carla had two children when she entered the marriage, Carla's children are now adults. The parties did not have children together. Todd worked for Lubrizol for the ten years preceding the date of dissolution and made $112,598 in the year immediately prior. Carla had worked as a general manager at Ulta for the six years preceding dissolution and earned about $73,000 per year. Carla had worked there for approximately six years preceding the parties' divorce and was a manager at David's Bridal for four years prior to that.
The parties financed an eight-year-old Infiniti SUV for Carla to drive. The Infiniti was financed in both parties' names. Todd drove a truck and had a Corvette, which were both paid off.
Todd and Carla separated in September 2021. Carla filed a petition for dissolution of marriage on January 17, 2022. Carla sought a division of marital property, maintenance, and attorneys' fees. The parties entered an agreed order on February 22, 2022 regarding the disposition of real estate proceeds, marital property, and all marital debt. The parties each received approximately $44,000 in real estate sale proceeds. Carla received the Infiniti and agreed to assume the outstanding debt on the car; she paid off the approximate $21,000 owed on the vehicle using her portion of the real estate sale proceeds. From the remaining sale proceeds, as well as the sale of a Toyota Tundra and a Toyota Sequoia, Carla also paid off her credit card. Thereafter, Carla had $16,000 in savings.
The agreed order also divided the parties' retirement assets. Carla received $168,000 of Todd's retirement funds. Carla's own retirement account was worth approximately $13,000, which the parties agreed to divide equally. The family court entered an interlocutory decree of dissolution on February 22, 2022, the same day the parties entered their agreed order.
At some point in 2022, Carla was terminated from Ulta. She was approved for unemployment benefits in July of 2022, receiving $601 per week for 26 weeks. She began searching for employment and had to withdraw from her savings because her unemployment benefits were insufficient to cover her expenses.
Following a mediation, the parties entered into another agreed order, resolving all issues except maintenance and attorneys' fees. The family court held a final hearing on the maintenance and attorneys' fees issues on December 12, 2022, at which Todd and Carla testified. Carla's attorney submitted an affidavit as to a total of $5,162.50 in attorneys' fees. The family court's final order awarded Carla $900 in maintenance per month for a year, and $600 per month for three years thereafter. The family court ordered Todd to pay Carla $4,000 in attorneys' fees. Todd now appeals.
ANALYSIS
"The award of spousal maintenance 'has traditionally been delegated to the sound and broad discretion of the trial court.'" Naramore v. Naramore, 611 S.W.3d 281, 286 (Ky. App. 2020) (quoting Barbarine v. Barbarine, 925 S.W.2d 831, 832 (Ky. App. 1996)). We will not disturb a trial court's ruling on maintenance unless it has abused its discretion or based its decision on clearly erroneous findings of fact. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003) (citations omitted); CR 52.01. A trial court has abused its discretion when its "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Clear error exists when factual findings are unsupported by substantial evidence, meaning "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 men.'" Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (modification in quotation original) (quoting Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62 (Ky. 1970)).
Kentucky Rules of Civil Procedure.
Under KRS 403.200(1), "a trial court may only award a spouse maintenance in a dissolution proceeding[] if it finds that two requirements are met." Roper v. Roper, 594 S.W.3d 211, 230 (Ky. App. 2019). Under the first requirement, "there must first be a finding that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his reasonable needs." Drake v. Drake, 721 S.W.2d 728, 730 (Ky. App. 1986). Under the second, "that spouse must be unable to support himself through appropriate employment according to the standard of living established during the marriage." Id. (citing Lovett v. Lovett, 688 S.W.2d 329, 332 (Ky. 1985)). Then, should the trial court determine a spouse should receive maintenance, it turns to the non-exhaustive list of factors in KRS 403.200(2), which it must consider in determining the appropriate amount and duration of maintenance. These factors are:
Kentucky Revised Statutes.
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) 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(2).
Todd challenges the family court's conclusions regarding Carla's ability to provide for her reasonable needs and to support herself through appropriate employment. He asserts Carla is voluntarily underemployed, whether by becoming unemployed or remaining unemployed. Todd first highlights his own testimony that Carla worked for all but a few months of the marriage, and Carla's testimony that her firing three weeks before the final hearing was not a coincidence; when asked whether the timing of her termination and the final hearing was contrived, Carla responded in the negative. However, Todd also noted that Carla's later testimony had been inconsistent. And, even if Carla did not voluntarily become unemployed, Todd argues Carla remains voluntarily unemployed because Carla is only considering jobs which pay enough or are geographically convenient for her.
Todd argues the family court should have imputed income to Carla based on both her unemployment income and her alleged voluntary joblessness. It is true that refusal to obtain employment is a factor "in determining whether maintenance should be awarded." Owens v. Owens, 672 S.W.2d 67, 70 (Ky. App. 1984) (citing KRS 403.200(1)(b)). However, the family court made specific findings relevant to Carla's ability to both provide for her reasonable needs and her ability to support herself through appropriate employment under KRS 403.200(1), facts which are additionally relevant to the duration and amount of a maintenance award under KRS 403.200(2). The family court found Carla went from earning $73,000 per year at Ulta to earning $32,552 annually in unemployment income. It heard testimony from Carla that she was actively seeking employment and did nothing to sabotage her employment to enhance any maintenance she might receive; Carla testified that she could only guess why she was terminated from Ulta, as Ulta never gave her a reason. And she testified she was looking for work in a variety of fields and was looking for jobs on a daily basis. Insofar as the family court determined Carla lacked the ability to earn sufficient income to support herself through employment, it was largely a determination of the witnesses' testimony, demeanor, and credibility to which this Court must defer. We find no error here.
Continuing to argue that Carla was not entitled to maintenance, Todd challenges the family court's conclusions as to the reasonableness of Carla's expenses. The family court explicitly noted Carla's testimony that she had total monthly expenses of $3,861. This included $300 per month for makeup and $125 per month for manicures and pedicures; she testified that these beauty expenses were necessary for working in the beauty industry. Carla testified she pays $200 a month for lawncare and has $662 in monthly car expenses - despite not having a car payment.
While the family court did not abuse its discretion regarding Carla's ability to generate income, the ability of the spouse seeking maintenance to support herself must be determined in view of the standard of living established during the marriage. See KRS 403.200(1)(b). "It has long been the law in this jurisdiction that the test to determine entitlement to maintenance set out in KRS 403.200(1) is not absolute but must be applied against the standard of living established during the marriage." Leitsch v. Leitsch, 839 S.W.2d 287, 289 (Ky. App. 1992) (citations omitted).
The family court made scant findings as to the standard of living established during the marriage. While the family court did make findings as to the parties' incomes and expenses, the family court made only a general, limited finding as to their standard of marriage in its discussion of the amount and duration of maintenance under KRS 403.200(1)(b). The family court only found as follows: "[t]he parties lived a comfortable life where they paid their bills and were able to do as they pleased."
However, despite the lack of specific written findings, evidence of record does demonstrate the lifestyle the parties enjoyed during their marriage. Nowhere does KRS 403.200 require written findings. See KRS 403.200. As Carla notes in her brief, the family court was confronted with evidence as to the parties' standard of living. This included the ownership of a home and four vehicles, ability to purchase gifts for family members, and ability to enjoy entertainment during the marriage. While these facts do not demonstrate the parties lived lavishly, evidence of record does demonstrate Carla regularly had her hair done professionally, purchased beauty products, and had manicures and pedicures. These activities and purchases were an aspect of the standard of living to which Carla was accustomed during the marriage. With such evidence in this record, we cannot say the family court abused its discretion in awarding maintenance to Carla.
As for the duration and amount of the family court's maintenance award, "[t]he duration of maintenance must have a direct relationship to two factors: (1) the period over which the need exists, and (2) the ability to pay." Combs v. Combs, 622 S.W.2d 679, 680 (Ky. App. 1981). Based on the evidence presented to it, the family court concluded Carla would only be able to partially support herself, as she will need time to find another job. The family court explicitly considered each of the KRS 403.200(2) factors. It considered Carla's financial resources, including property and her lack of employment. It noted her strong work history and that she was searching for employment. It considered the length of the marriage - 20 years - and noted that the parties enjoyed a comfortable standard of living. It considered the fact that Carla is 48 and in good health, as well as Todd's ability to simultaneously meet his own needs and contribute financially to Carla through maintenance. The family court considered each factor it was required to and did so within the bounds of its discretion. We find no error here.
Todd also challenges the family court's award of attorneys' fees to Carla. KRS 403.220 empowers courts to award reasonable attorneys' fees to a party for the cost of maintaining or defending an action "after considering the financial resources of both parties." KRS 403.220. The decision to award attorneys' fees is also a matter of the trial court's discretion. Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App. 2007) (citation omitted). Therefore, a trial court's decision regarding attorneys' fees will remain undisturbed absent an abuse of that discretion. Id.
In its order, the family court simply awarded Carla attorneys' fees and directed Todd to pay the fees directly to Carla's attorney. However, when reviewing the family court's order as a whole, it is clear the court considered the financial resources of both parties as KRS 403.220 requires. Across its order, the family court discusses the parties' financial circumstances, including property, expenses, and income - and in Carla's case, lack of income due to unemployment. The family court sufficiently considered the financial status of both Todd and Carla, and its award of fees to Carla does not demonstrate an abuse of its discretion.
CONCLUSION
Based on the foregoing, we affirm the McCracken Family Court's January 30, 2023 final order and supplemental decree.
ALL CONCUR.