Wilson v. Wilson

Full title: DAVID ALLEN WILSON APPELLANT v. BOBETTE CONLEY WILSON APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Nov 2, 2018

NO. 2017-CA-001110-MR (Ky. Ct. App. Nov. 2, 2018)

Opinion

NO. 2017-CA-001110-MR

11-02-2018

DAVID ALLEN WILSON APPELLANT v. BOBETTE CONLEY WILSON APPELLEE

BRIEF FOR APPELLANT: Jeffrey D. Hensley Russell, Kentucky BRIEF FOR APPELLEE: Richard A. Hughes Ashland, Kentucky

SMALLWOOD, JUDGE

NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 03-CI-00150 OPINION
AFFIRMING

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BEFORE: DIXON, D. LAMBERT AND SMALLWOOD, JUDGES. SMALLWOOD, JUDGE: David Allen Wilson appeals from an order of the Boyd Circuit Court which affirmed the recommendations of a domestic relations commissioner (hereinafter referred to as DRC). The DRC recommended that Bobette Wilson's maintenance award be modified by allowing her to continue to receive maintenance from Appellant due to increased medical expenses. Appellant argues that Appellee provided no proof of a change in circumstances that would justify modifying a previously entered maintenance award. We believe the DRC made sufficient findings to justify the modification of the maintenance award and that the trial court did not abuse its discretion in affirming.

The parties divorced on September 22, 2003. Pursuant to a recommendation of a DRC and orders agreed to by the parties, Appellee was awarded $750 per month "until such time as she is eligible to draw Social Security benefits or retire [s.c.], or remarries, whichever occurs first." In September of 2015, Appellee began receiving Social Security benefits. In March of 2016, Appellant brought a motion in the underlying court to terminate his maintenance payments to Appellee due to her receiving Social Security benefits.

Two hearings were held in this matter before a DRC, one in August and one in November of 2016. Testimony was taken and evidence was submitted. Appellee testified that her circumstances had changed since the original maintenance award. She testified that her health had deteriorated and that she was experiencing a great increase in medical expenses. The DRC filed a report and recommendations indicating that he believed Appellee should continue to receive maintenance from Appellant in the amount of $500 a month. After some procedural issues, the trial court adopted the recommendations of the DRC and ordered that Appellee continue to receive maintenance from Appellant. This appeal followed.

Appellant argues on appeal that maintenance should have been discontinued when Appellee began receiving Social Security benefits and the court abused its discretion by modifying the maintenance award.

Maintenance payments may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. Kentucky Revised Statutes (KRS) 403.250(1). Maintenance becomes unconscionable if it is manifestly unfair or inequitable. 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.

Tudor v. Tudor, 399 S.W.3d 791, 792-93 (Ky. App. 2013) (citations and internal quotation marks omitted).

We review the family court's determination regarding a motion to modify maintenance for an abuse of discretion. We cannot substitute our judgment for the family court's if there is substantial evidence supporting that court's decision. Further, we may not set aside the family court's factual findings unless they are clearly erroneous.

Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007) (citations omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

In the case at hand, we do not believe that the trial court abused its discretion in adopting the DRC's recommendation that the maintenance award be modified. Appellee testified that her health had deteriorated since the original maintenance award to the point that she now required dialysis multiple times per month. Appellee presented evidence in the form of Medicare statements that indicated she may be billed around $600 per month for these treatments. The DRC also found that her other monthly bills totaled about $890. The DRC took into consideration Appellee's current income from part-time employment and social security benefits, her "frugal living expenses," and her increased medical needs. The DRC weighed those factors against Appellant's much higher income and his expenses.

While neither the DRC nor trial court explicitly stated that the maintenance award was being modified due to changed circumstances, we believe this was clearly the intent of their orders. We also believe that the evidence supported the finding of a change in circumstances justifying the modification, i.e., Appellee's increased medical costs. The trial court did not abuse its discretion in adopting the DRC's recommendation for maintenance.

Based on the foregoing, we affirm the judgment of the trial court.

ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey D. Hensley
Russell, Kentucky BRIEF FOR APPELLEE: Richard A. Hughes
Ashland, Kentucky