Opinion
NO. 2015-CA-000961-MR
05-05-2017
MITCHELL W. WHITE APPELLANT v. JUDY L. WHITE APPELLEE
BRIEF FOR APPELLANT: Julia T. Crenshaw Hopkinsville, Kentucky BRIEF FOR APPELLEE: Joe A. Evans III Taylor C. Evans Madisonville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 11-CI-00552 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. TAYLOR, JUDGE: Mitchell W. White brings this appeal from a May 28, 2015, order of the Hopkins Circuit Court, Family Court Division, reducing the family court's original award of maintenance to Judy L. White from $2,700 per month to $2,200 per month. We affirm in part, vacate in part, and remand.
The relevant facts to this appeal were summarized in an Opinion of this Court in a previous appeal in 2013 (Appeal No. 2013-CA-001743-MR):
The parties were married for approximately 26 years before they separated on December 13, 2008. The parties have two children, both of whom had graduated college and were married at the time of the final hearing held on December 14, 2012, where the only issues remaining were maintenance and attorney fees. At the hearing, both parties were 52 years old. The family court heard testimony regarding the parties' claimed reasonable expenses and their incomes.
For the majority of the marriage, Mitchell was the primary financial earner and the parties had a comfortable lifestyle, enabling them to pay off their mortgage, take vacation trips, and save for retirement. From 1985 to 2003, Mitchell's income ranged from $36,416.00 to $57,056.02. In 2003, Judy began working full-time at Edward Jones as a Branch Office Administrator and earned $18,548.00. In 2004, his income was $60,334.00 and hers was $19,955.00. Judy's earnings steadily increased throughout the years. In 2011, she earned $39,936.00; by 2012 she had earned $46,487.76. From this, the [family] court concluded that Judy's net income was $2960.50 per month and that her reasonable living expenses were $4,312.00 per month.
In 2007 Mitchell began working for Armstrong Coal Company and his income increased to $102,618.00 in 2008. His income continued increasing. In 2012 he earned $118,913.00. The [family] court concluded that his net income per month was $6643.00 plus a $550 monthly vehicle allowance for his truck which was used for employment purposes.
The [family] court determined that Judy was entitled to maintenance as she was gainfully employed but lacked the financial resources to meet her current needs independently, that further education or training would not enable her to produce sufficient income, and that Mitchell had the ability to pay maintenance while still
meeting his needs. The [family] court noted that maintenance was appropriate given the parties' 30 year marriage and the standard of living enjoyed in the marriage.Appeal No. 2013-CA-001743-MR, December 29, 2014, Opinion at 2-4 (footnotes omitted).
[In an April 30, 2013, order, the family] court awarded Judy $2,700 per month [in maintenance]. [The maintenance] obligation was deemed to be an open-end award modifiable upon a showing of a change in circumstances so substantial and continuing as to make the award unconscionable, and the obligation was to terminate upon the death of either party, or upon Judy's remarriage, whichever occurred first. . . .
As noted, following entry of the family court's April 30, 2013, order, awarding maintenance to Judy, Mitchell filed a notice of appeal in this Court (Appeal No. 2013-CA-001743-MR). Therein, Mitchell argued, inter alia, that the family court erred by awarding Judy an open-ended maintenance award of $2,700 per month. By Opinion rendered December 29, 2014, this Court reversed and remanded as to the amount of the maintenance award. The Court of Appeals also noted that upon remand it would be appropriate for the family court to reconsider the duration of the maintenance award.
Upon remand, the family court reviewed both the amount and duration of the maintenance award to Judy. By order entered May 28, 2015, and without taking any additional evidence, the family court reduced the maintenance award from $2,700 per month to $2,200 per month. The family court also provided that the maintenance obligation would "terminate upon Judy's death, upon her remarriage, or upon her attaining the age of sixty-five years, whichever occurs first." Order at 6. It is from this May 28, 2015, order of the family court that Mitchell brings the instant appeal.
Mitchell contends the family court erred by awarding maintenance to Judy in the amount of $2,200 per month until Judy's death, remarriage, or attaining the age of sixty-five. Specifically, Mitchell asserts that the amount of maintenance awarded, $2,200 per month, was an abuse of discretion and that the findings of fact supporting same were clearly erroneous. Mitchell also contends the family court abused its discretion as to the duration of the maintenance award.
It is axiomatic that the amount and duration of a maintenance award are within the sound discretion of the circuit court. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). An award of maintenance may only be reversed where there has been a clear abuse of discretion. Combs v. Combs, 622 S.W.2d 679 (Ky. App. 1981). And, of course, the family court's findings of fact are conclusive if supported by substantial evidence of a probative value. Spurlin v. Spurlin, 456 S.W.2d 683 (Ky.1970). In Kentucky, maintenance is generally considered rehabilitative and, thus, limited in duration. Leitsch v. Leitsch, 839 S.W.2d 287 (Ky. App. 1992). However, if rehabilitation of a spouse is not possible, the statutory scheme is intended to prevent a "'drastic change' in the standard of living" established during the parties' marriage. Id. at 290 (citation omitted).
The criteria for awarding maintenance is set forth is Kentucky Revised Statutes (KRS) 403.200(1) and provides that a family court may award maintenance if: the spouse seeking maintenance lacks sufficient property to provide for his/her reasonable needs, and said spouse is unable to support himself/herself through appropriate employment. Drake v. Drake, 721 S.W.2d 728 (Ky. App. 1986). If an award of maintenance is deemed appropriate, the family court must then determine the amount and duration of the award. KRS 403.200(2) governs the amount and duration of a maintenance award and provides that the court must consider the following factors: (a) financial resources of the parties, (b) time needed to acquire education or training to enable party to obtain employment, (c) standard of living established during the marriage, (d) duration of the marriage, (e) age, physical condition, and emotional condition, and (f) ability of payor spouse to pay maintenance while meeting his needs.
We initially note in this appeal, that Mitchell is not challenging Judy's entitlement to an award of maintenance; rather, Mitchell is challenging the amount and duration of the award. We believe the family court properly considered the factors set forth in KRS 403.200(2) and that substantial evidence was introduced to support the family court's findings as to the amount and duration of the maintenance award. See KRS 403.200(2).
Relevant to the financial resources of the parties, the family court found that Judy had net income of $2,961 per month and expenses of $4,312. Mitchell, on the other hand, had net income of $7,193 per month and expenses of $2,320. As for the standard of living established during the marriage, the family court found the parties had enjoyed a financially comfortable standard of living and were able to reduce and eliminate debt during the marriage. The parties were also able to contribute to the educational expenses of their now adult children. During the marriage, Mitchell was the primary financial supporter while Judy primarily cared for the parties' children. The family court also considered that the parties had been married for thirty years and were both fifty-two years of age. Based upon the parties' income and reasonable expenses, the family court determined Mitchell could contribute to Judy's needs and still meet his own needs. The family court also limited the duration of the maintenance award by providing that Mitchell only pay maintenance until Judy reached sixty-five years of age, died, or remarried. In sum, we conclude that there was substantial evidence to support the family court's findings regarding the amount and duration of the maintenance awarded to Judy and that there was no abuse of discretion. Thus, Mitchell's contention is without merit.
Mitchell also asserts that the family court erred by awarding Judy attorney's fees of $2,000. In particular, Mitchell asserts that the family court had no authority to award attorney's fees upon remand by the Court of Appeals. Mitchell contends that this Court remanded the matter solely for reconsideration as to the amount and duration of the maintenance award.
An award of attorney's fees is entirely within the discretion of the family court and will not be disturbed absent an abuse of that discretion. Tucker v. Hill, 763 S.W.2d 144 (Ky. App. 1988). An abuse of discretion occurs when the family court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). And, although the family court is required to consider the financial resources of the parties it is not required to make specific findings of fact regarding same. Hollingsworth v. Hollingsworth, 798 S.W.2d 145 (Ky. App. 1990).
Upon remand, the family court specifically addressed the issue of attorney's fees in its May 28, 2015, order:
The statute that governs the Court's determination of whether an award of attorney fees is appropriate is KRS 403.220. The Court previously found that the award of property, the allocation of debt, and the parties' financial circumstances after the award of maintenance rendered any financial disparity negligible. However, given the modification of the maintenance award, that finding is no longer accurate. [Mitchell's] net monthly income after payment of the maintenance award and his tax obligation, is greater than [Judy's] net monthly income; a financial disparity now exists in that [Mitchell] has approximately 20% greater net monthly income than does [Judy].
At the time of the trial on this petition, [Judy] had incurred attorney fees in excess of $6,905; she testified that her attorney billed her at a rate of $150 per hour for his services. The Court finds that this amount is reasonable, given the requirements of the representation, the local rate of billing, the time reasonably necessary to prepare the case for trial, and the length of the practice and expertise of [Judy's] attorney. The Court notes that the $6,905 was the total in December 2012, that the parties have had at least two court appearances since that date, that the parties have required additional legal services due to the appeal, and that the parties have, no doubt, incurred substantially more attorney fees since December 2012.
On reconsideration, [Judy's] motion to award attorney fees is GRANTED. Given the financial disparity of the parties' circumstances, [Mitchell] shall
bear $2,000 of [Judy's] total attorney fees and the fees and costs of his own attorney. He shall remit payment to her on or before July 31, 2015. [Judy] shall bear the balance of the fees and costs of her own attorney and the filing associated with this action.May 28, 2015, Order at 6-7.
As the family court reduced the amount of the maintenance award, we do not believe reconsidering the issue of attorney's fees was erroneous or an abuse of discretion. When the family court decreased the maintenance award, Judy's monthly income correspondingly decreased and Mitchell's income was increased. The net effect was a change to the financial resources available to each party. Moreover, it is clear that Judy expended additional funds for attorney's fees upon remand of the action to the family court. As such, we perceive no error in the family court awarding Judy $2,000 in attorney's fees.
Mitchell also contends that the family court erred by ordering that he obtain a life insurance policy in the amount of $300,000, naming Judy as beneficiary to secure the award of maintenance to Judy. Mitchell specifically argues that the family court abused its discretion by deviating from the parties' property settlement agreement that was incorporated into the decree of dissolution, which provided that Judy would purchase the insurance on Mitchell's life at her expense.
The authority of a court to require an obligor spouse to maintain a life insurance policy as a guaranty or security for a maintenance award is not well settled. See John J. Michalik, J.D., Annotation, Divorce: Provision In Decree That One Party Obtain Or Maintain Life Insurance For Benefit Of Other Party Or Child, 59 ALR 3d 9 (2017). In Kentucky, it appears that such authority may exist but is discretionary with the court. Ky. Divorce § 13.7, Suspension, Modification, and Termination of Maintenance (2016). However, before a court may deviate from the terms of a property settlement agreement, the court must find that the agreement is unconscionable. KRS 403.180(2).
KRS 403.180(2) provides that "the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable." --------
In this case, the parties entered into a property settlement agreement in 2012, wherein it was agreed that Judy was permitted to purchase a life insurance policy upon Mitchell's life at her own expense to secure the award of maintenance. The family court ultimately found that the property settlement agreement was not unconscionable and incorporated it into the decree of dissolution of marriage entered September 18, 2013. Upon remand and by order entered May 28, 2015, the family court once again stated that the property settlement agreement was not unconscionable; however, in the same order, the family court mandated that Mitchell purchase the life insurance, not Judy. We conclude the family court's May 28, 2015, ruling on this issue is an abuse of discretion and otherwise contrary to the terms of the property settlement agreement. The family court cannot simultaneously uphold the settlement agreement in toto as conscionable and at the same time require Mitchell to pay the premium upon the life insurance policy. Rather, the family court must find the settlement agreement's provision as to the life insurance unconscionable before ordering Mitchell to purchase the insurance. Therefore, we vacate the family court's order requiring Mitchell to purchase life insurance to secure the maintenance award. Upon remand, the family court shall comply with the provisions of the agreement regarding the life insurance or make appropriate findings that said provisions are unconscionable.
For the foregoing reasons, the order of the Hopkins Circuit Court, Family Court Division, is affirmed in part, vacated in part, and remanded for proceedings consistent with the opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Julia T. Crenshaw
Hopkinsville, Kentucky BRIEF FOR APPELLEE: Joe A. Evans III
Taylor C. Evans
Madisonville, Kentucky