BETTY J. REARDEN (now Cooper) and RICHARD T. FORD V. HERMAN D. REARDEN
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RENDERED: July 24, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
97-CA-0072-MR (DIRECT)
BETTY J. REARDEN (now Cooper)
and RICHARD T. FORD
V.
APPELLANTS
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 85-CI-1252
HERMAN D. REARDEN
APPELLEE
AND
NO. 97-CA-0136-MR (CROSS)
HERMAN D. REARDEN
V.
CROSS-APPELLANT
CROSS-APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 85-CI-1252
BETTY J. REARDEN (now Cooper)
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON, GARDNER and GUIDUGLI, JUDGES.
CROSS-APPELLEE
GARDNER, JUDGE.
Appellants, Betty Rearden Cooper (Betty) and
Richard T. Ford have appealed from an order of the Daviess Circuit
Court in this dissolution of marriage action.
(Herman) has cross-appealed.
Herman Rearden
After reviewing the issues raised by
both parties and reviewing the record below, this Court affirms the
circuit court's order.
Herman and Betty were married for thirty-one years and
divorced in December 1985.
Herman and Betty entered into a
separation agreement whereby Herman would pay Betty $600 per month
maintenance which could be increased to $800 per month if Betty
showed additional need.
The agreement also provided that Betty
would receive one-half of Herman's retirement when he received it.
The circuit court's original findings of fact, conclusions of law
and decree were entered December 19, 1985.
In September 1987, the
circuit court increased Betty's monthly maintenance to $800 after
finding that she had shown additional need.
Herman
worked
at
Commonwealth
(Commonwealth) in Lewisport, Kentucky.
Aluminum
Company
In 1990, Commonwealth
offered early retirement to its salaried employees.
Evidence
presented in the court below showed that if the employees did not
take the offer, some would be laid off as a reduction in work
force.
Herman chose to take the offer.
Herman at retirement had
a 401K plan valued at $25,000 and received a severance payment
worth $24,000 after taxes.
Herman receives a monthly retirement
pension benefit of approximately $1,688.
Because of his early
retirement, Herman in March 1990 filed a motion to terminate or
modify maintenance based on the grounds of changed circumstances
-2-
which rendered the parties' prior agreement unconscionable.
domestic
should
relations
be
commissioner
modified,
but
the
believed
circuit
that
court
the
The
maintenance
ruled
that
the
circumstances presented did not make the maintenance agreement
unconscionable.
maintenance
The court held that the prior order pertaining to
would
remain
in
full
force
and
effect.
Herman
attempted to appeal the order, but this Court in September 1992,
dismissed Herman's appeal because the order was not final and
appealable.
On January 4, 1993, Herman filed another motion in
circuit court to modify the court's September 1987 order so as to
reduce the monthly maintenance payments because of circumstances
making the order unconscionable. In an order of February 15, 1994,
the court ruled Herman made an insufficient showing of a need to
set aside the amount of maintenance.
Herman filed yet another
motion on February 23, 1994, seeking to reduce maintenance.
On
February 25, 1994, Herman filed a motion in circuit court seeking
the court to clarify its February 1994 ruling to determine whether
Betty was entitled to one-half of Herman's pension accruing during
the marriage or one-half of the pension he started receiving five
years after the dissolution decree and whether Betty was entitled
to receive part of Herman's 401K plan.
a
March
1994
supplementary
opinion
The circuit court ruled in
and
order
that
Betty
was
entitled to one-half of Herman's pension which accrued during the
marriage and that the 401K plan accrued after the marriage so Betty
was entitled to no part of it.
-3-
Herman appealed that order to this Court.
In July 1996,
this Court issued an opinion reversing and remanding the circuit
court's
order.
This
Court
ruled
that
the
parties'
property
settlement agreement regarding the pension plan was not ambiguous
and that Betty was to receive one-half of the monthly pension
payments that Herman received.
This Court held that Herman's
request for modifying maintenance must be remanded in light of the
holding
that
payments.1
Betty
was
entitled
to
one-half
of
the
pension
This Court directed the circuit court upon remand to
consider whether the consequences of Herman's early retirement
constituted changed circumstance so substantial and continuing as
to make the separation agreement's terms unconscionable in view of
the pension benefits Betty was receiving.
Upon remand, Betty argued that the circuit court should
not entertain new evidence but should base its decision on the
existing record.
The circuit court disagreed, and the domestic
relations commissioner considered new evidence.
In November 1996,
the commissioner ruled that the maintenance agreement providing for
$800 monthly maintenance to Betty was unconscionable.
He stated
since Herman received $1,688.92 per month and had to pay out
$1,641.44 in maintenance and pension benefits, he was entitled to
relief.
He found that the total pension benefits due her through
September 1, 1996 was $37,943 plus 12% interest.
The commissioner
ruled that the maintenance obligation should be temporarily reduced
to $200 per month and reviewed again in two years when Herman
1
This Court noted in our opinion that Betty stated in her
brief that the issue concerning the 401K plan was moot, because
Herman paid her a portion of his 401K proceeds.
-4-
becomes eligible for Social Security benefits.
He held Betty was
entitled to receive the $37,943 plus 12% interest subject to Herman
having the maintenance reduction effective from March 30, 1990, the
date of his motion to terminate or reduce maintenance.
The
commissioner concluded that the amount of overpayment resulting
from the reduction in maintenance should be offset against the past
due pension payments, and there was no additional sum due Herman
nor any sum due Betty.
Herman
pay
$1,000
The commissioner also recommended that
towards
Betty's
attorney
fees
and
costs.
Exceptions were filed to the commissioner's report, but the circuit
court in a December 9, 1996 order overruled the parties' exceptions
and upheld the commissioner's report.
Both parties have appealed
from the circuit court's order.
Betty in her appeal first argues that the circuit court
erred
by
permitting
Herman
to
reopen
the
record
and
present
additional testimony after the case was reversed and remanded by
this Court.
Betty's argument lacks merit.
Generally, when a judgment is reversed on direct appeal,
it is as though it never existed.
S.W.2d 352, 353 (1986).
Clay v. Clay, Ky. App., 707
The former Court of Appeals in Preece v.
Woolford, 200 Ky. 604, 255 S.W. 285 (1923), considered the question
of what is the correct practice when the appellate opinion merely
reverses the judgment without any directions as to whether or not
additional proof should be taken upon remand.
The court held that
the trial court had discretion to allow the taking of additional
proof.
Id, at 286.
Generally, on remand of a case, a trial court
may make any order of direction that is not inconsistent with the
-5-
decision and directions of the appellate court.
omitted).
Id. (citation
Cf. City of St. Matthews v. Oliva, Ky, 392 S.W.2d 39
(1965).
In the instant case, this Court did not state whether
additional evidence should or should not be heard upon remand.
This Court did direct the circuit court to consider upon remand
whether the consequences of Herman's early retirement constituted
changed circumstances so substantial and continuing as to make the
separation agreement's maintenance terms unconscionable. Thus, the
trial court did not abuse its discretion by permitting additional
evidence to be presented upon remand since it was necessary to
determine the economic and living conditions of the parties at that
time.
We decline to reverse on this issue.
Betty contends that the circuit court's order granting
Herman a reduction in maintenance from $800 to $200 monthly was
clearly erroneous and constituted an abuse of discretion.
maintains
that
the
trial
court
failed
to
follow
the
She
test
surrounding voluntary retirement set out in Barbarine v. Barbarine,
Ky. App., 925 S.W.2d 831 (1996).
She asserts that at most, Herman
would be entitled only to reduce maintenance prospectively from
$800 to $600.
We have uncovered no error regarding this issue.
Generally, as with basic valuation matters, maintenance
determinations are within the sound discretion of the trial court.
Clark v. Clark, Ky. App., 782 S.W.2d 56, 60 (1990).
Unless
absolute abuse of discretion is shown, the appellate court must
maintain
findings.
confidence
Id.
in
the
trial
court
and
not
disturb
its
See also Barbarine v. Barbarine, 925 S.W.2d at 832;
-6-
Drake v. Drake, Ky. App., 721 S.W.2d 728 (1986).
Revised Statute (KRS) 403.200.
See Kentucky
"[T]he provisions of any decree
respecting maintenance or support may be modified only upon a
showing of changed circumstances so substantial and continuing as
to make the terms unconscionable."
KRS 403.250(1).
In Barbarine
v. Barbarine, supra, this Court considered a situation regarding
maintenance modification where one spouse had voluntarily retired.
This
Court
held
that
if
after
considering
and
weighing
the
circumstances of a case, the advantage to the retiring spouse
substantially outweighs the disadvantage to the payee spouse, then
a
decrease
in
the
amount
of
maintenance
Barbarine v. Barbarine, 925 S.W.2d at 833.
may
be
appropriate.
Several factors are
relevant to this determination including the ability of both
spouses to earn in the labor market, the age and health of the
retiring spouse, the motives of the party for retiring, the timing
of the retirement, the ability of the party to pay maintenance
after retirement, the ability of the other spouse to provide for
himself or herself, the reasonableness of the early retirement, the
expectations of the parties and the opportunity of the defendant
spouse to prepare to live on the reduced support.
Id.
In the case at bar, this Court has found no abuse of
discretion by the circuit court.
Evidence was presented that
Herman received only $1,688.92 per month after retirement and had
to pay Betty $1,641.44 per month, thus leaving him with a meager
amount for his living expenses.
Further, evidence was presented
that Herman's retirement was not entirely voluntary, because his
employer was offering retirement packages in order to cut the
-7-
payroll and might lay off employees that did not take the offer.
In fact, apparently some employees were laid off.
Thus, reducing
maintenance to $200 was not an abuse of discretion.
The circuit
court followed the directive in our earlier opinion reversing and
remanding the case.
Barbarine v. Barbarine, supra, was not final
at the time of our earlier opinion in this case and thus was not
mentioned in the opinion. Betty raised Barbarine in her exceptions
to the commissioner's report.
that
while
the
commissioner
The trial court in its order stated
did
not
specifically
refer
to
Barbarine, the criteria discussed in Barbarine were considered. We
concur with the circuit court on this matter.
Further, the facts
in Barbarine were distinguishable as the former husband in that
case had clearly retired voluntarily.
Thus, we decline to disturb
the trial court's decision. The modified amount of maintenance set
by the circuit court was not inappropriate, and the court seemed to
apply the correct factors in establishing that Herman had met his
burden of showing changed circumstances.
See Roberts v. Roberts,
Ky. App., 744 S.W.2d 433 (1988); McGowan v. McGowan, Ky. App., 663
S.W.2d 219 (1983); Wilcher v. Wilcher, Ky. App., 566 S.W.2d 173
(1978).2
Betty next argues that the circuit court erred by making
the reduction of maintenance retroactive to March 30, 1990, the
date Herman filed his original motion to modify and to offset the
retroactive relief against the judgment due Betty for her share of
2
Herman in his cross-appeal has argued that maintenance
should have been terminated altogether. Again, we have reviewed
the record and cannot find that the circuit court erred by
reducing maintenance to $200 per month.
-8-
the pension benefits.
After reviewing the applicable law, we have
uncovered no error.
The
law
regarding
the
retroactivity
maintenance has been addressed several times.
of
modifying
In Combs v. Combs,
Ky., 787 S.W.2d 260 (1990), it was noted that maintenance payments
are vested from the entry of a decree and ordinarily can be
modified only upon the entry of a subsequent order of the court to
operate prospectively, from the date of entry.
See also Louise
Graham and James Keller, Kentucky Practice, Domestic Relations Law,
§ 16.1, p.2 (1997).
However, retroactive relief has been ordered
when circumstances delay a case from being submitted for decision.
Mudd v. Mudd, Ky. App., 903 S.W.2d 533, 534 (1995).
Our law does
not prohibit reduction of maintenance for the period of time from
the filing of the motion to the entry of judgment.
Id.
See also
Graham and Keller, Kentucky Practice, Domestic Relations Law, at §
16.19.
Although payments which have accrued generally become
vested, and Kentucky law primarily supports prospective relief, a
trial court has discretion to allow appropriate relief in certain
circumstances.
Mudd v. Mudd, 903 S.W.2d at 534.
The circuit court in the instant case did not err or
abuse
its
discretion
by
making
the
reduction
of
maintenance
retroactive to March 30, 1990, the date Herman filed his first
motion to modify maintenance.
His appeal from that order was
dismissed by this Court because the order was not final and
appealable as there were other pending issues in the case.
Betty
and Herman did appeal from the court's February and March 1994
orders regarding maintenance and pensions, and this Court reversed
-9-
and
remanded
for
a
determination
of
whether
the
maintenance
provision was unconscionable because of changed circumstances.
Thus,
Herman's
appeal
of
the
maintenance
primarily because of judicial proceedings.
issue
was
delayed
We do not believe the
circuit court abused its discretion by making the modification
retroactive.
Further, the court's actions did not circumvent the
parties' property settlement agreement since Betty was awarded the
pension benefits pursuant to the agreement.
Under Kentucky law,
open ended maintenance provisions are subject to modification
pursuant to KRS 403.250.
Lydic v. Lydic, Ky. App., 664 S.W.2d 941
(1983); Graham and Keller, Kentucky Practice, Domestic Relations
Law at § 16.21.
The court below thus did not err by offsetting the
pension amounts and the maintenance payments.
Betty and Herman both contest the circuit court's award
of $1,000 to Betty for attorney fees and expenses. Betty maintains
that this amount is inadequate while Herman argues that Betty
should not have been awarded any attorney fees.
We have found no
error by the circuit court.
This Court must first note that Herman has waived this
issue by not naming Betty's counsel as a party in his cross-appeal.
Although the rule regarding naming attorneys as parties to an
appeal has been loosened in some types of cases, the rule remains
in effect in dissolution cases.
Appellants must name the attorney
as a party to the appeal when contesting the award of attorney
fees.
Knott v. Crown Colony Farm, Inc., Ky., 865 S.W.2d 326, 330
(1993); Tyler v. Bryant, Ky., 394 S.W.2d 454 (1965); Beaver v.
Beaver, Ky. App., 551 S.W.2d 23 (1977).
-10-
We have reviewed the trial
court's award of attorney fees in the instant case nevertheless,
and have uncovered no abuse of discretion.
KRS
403.220
provides
that
a
trial
court,
after
considering the financial resources of both parties, may order a
party to pay a reasonable amount for the cost to the other party of
maintaining or defending any proceeding under this chapter and for
attorney fees.
The court must consider the financial resources of
the parties, and the awarding of attorney fees is appropriate where
one party's resources exceed those of the other.
Ky.
App.,
809
S.W.2d
710,
714-15
(1991);
Drake v. Drake,
Hollingsworth
v.
Hollingsworth, Ky. App., 798 S.W.2d 145, 147-48 (1990); Drake v.
Drake, 721 S.W.2d at 731.
A trial court has great discretionary
power in its determination to award or deny attorney fees.
Drake
v. Drake, 809 S.W.2d at 714-15; Hollingsworth v. Hollingsworth, 798
S.W.2d at 148.
In the case at bar, we have uncovered no abuse of
discretion.
Betty's resources were more limited than Herman's
because of her disabilities and the fact that she lived alone.
Herman on the other hand was on a limited income, thus limiting the
amount he could pay.
We decline to disturb the trial court's award
of $1,000 in attorney fees to Betty.
For
the
foregoing
reasons,
this
Court
affirms
the
judgment of the Daviess Circuit Court.
ALL CONCUR.
BRIEF
FOR
APPELLEE:
APPELLANT/CROSS-
BRIEF
FOR
APPELLANT:
Richard T. Ford
Ralph W. Wible
-11-
APPELLEE/CROSS-
Owensboro, Kentucky
Owensboro, Kentucky
-12-
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