JOSEPH WOODROW RASSMAN v. JANET SUE RASSMAN
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RENDERED:
February 26, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000447-MR
JOSEPH WOODROW RASSMAN
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 1995-CI-002093
v.
JANET SUE RASSMAN
APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART, and REMANDING
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BEFORE:
BUCKINGHAM, GARDNER, AND KNOPF, JUDGES.
KNOPF, JUDGE:
1995.
Janet and Joseph Rassman were married in September
About ten (10) weeks later, they separated, and Joseph
filed a petition for divorce.
Soon thereafter they reconciled
and resumed cohabitation, but in February 1996 they parted again.
Once again they reconciled.
Then, in July 1996, they separated
for a third time and have since remained apart.
had no children together.
Janet and Joseph
At the time of their final separation,
Joseph was seventy (70) years old.
He was retired from
employment and derived his income from social security benefits
and from a Teamsters’ Union pension.
years old.
Janet was fifty-four (54)
Shortly before the parties married, she had resigned
from a position at a nursing home.
At the time of these
proceedings, she was unemployed and had recently undergone
surgery, which, she claimed, limited her ability to work.
On December 11, 1995, immediately after the couple’s
first separation, Joseph filed a petition for divorce.
A
separation agreement, executed that day, accompanied his
petition.
Due to the parties’ reconciliations, the matter did
not come before the trial court until October 1996, by which time
the status of the separation agreement had grown doubtful.
By
that time, too, disputes had arisen concerning Janet’s
entitlement to maintenance and Joseph’s obligation to pay a
portion of Janet’s medical bills.
Joseph now appeals from the
trial court’s January 21, 1997, decree, which attempted to
resolve these matters.
Joseph first maintains that the trial court abused its
discretion by awarding Janet $2,000.00 as lump-sum maintenance.
He insists that Janet failed to demonstrate that she is incapable
of providing for herself.
He also maintains that $2,000.00 is an
excessive amount given the brief duration of the marriage.
Notwithstanding these considerations, we are persuaded that the
maintenance award was proper.
KRS 403.200 vests the trial court with broad discretion
to award maintenance to either spouse provided that the recipient
lacks both sufficient property and sufficient earning capacity to
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provide for his or her reasonable needs.
The same statute
further provides that “[t]he maintenance order shall be in such
amounts and for such periods of time as the court deems just.”
In making this determination the court is to consider all
relevant factors, such as the financial resources of the parties;
the recipient’s employment prospects, including her eligibility
for additional education or vocational training; the standard of
living established during the marriage; the marriage’s duration;
and the recipient’s age and health.
Browning v. Browning, Ky.
App., 551 S.W.2d 823 (1977).
Here, the trial court found that Janet was eligible for
temporary maintenance because she did not have sufficient
property to provide for her needs and was unemployed.
Furthermore, the trial court ruled that $2,000.00 was a
reasonable amount in light of these facts: that Janet had brought
approximately that amount of money to the marriage; that her age
and post-operative condition were apt to delay her return to
suitable employment; and that Joseph’s income, his freedom from
debt, and his substantial savings would enable him to pay that
amount without undue hardship.
Although, as Joseph notes, the
marriage proved to be a brief one, we believe the trial court was
within its discretion in relying on the factors just listed.
The
trial court also noted that Janet had given up steady, long-term
employment in reliance on Joseph’s promise that he would take
care of her.
Janet could therefore reasonably be deemed entitled
to his help with becoming reestablished in a job.
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Joseph next argues that the trial court erred by
ordering him to pay nearly two-thirds (2/3) of Janet’s medical
bills.
Those bills, which totaled almost $13,000.00, were for
surgery Janet underwent in August 1996, after she and Joseph had
separated for the last time.
Joseph maintains that he cannot
legally be held liable for Janet’s post-separation debts.
In
thus asserting, he relies on KRS 404.040, which limits a
husband’s potential liability “for any debt or responsibility of
the wife contracted or incurred before or after marriage, . . .”
Joseph’s reliance on KRS 404.040 is misplaced.
By its
own terms, that statute applies only to debts incurred before or
after marriage, but Janet’s medical bills arose during the
marriage.
Furthermore, KRS 404.040 predates Kentucky’s adoption,
in 1972, of no-fault divorce.
Our domestic relations laws
underwent thorough revision at that time, rendering application
of KRS 404.040 to this situation inappropriate.
See Automobile
Club Ins. Co. v. Lainhart, Ky. App., 609 S.W.2d 692 (1980)
(dissenting opinion by Judge Breetz).
Under our current domestic relations laws (KRS Chapter
403),
[d]ebts accrued subsequent to separation, but
before entry of a divorce decree are
rebuttably presumed to be marital debts.
Underwood v. Underwood, Ky. App., 836 S.W.2d 439, 445 (1992)
(citing Daniels v. Daniels, Ky. App., 726 S.W.2d 705 (1986)).1
1
W e note that there is earlier precedent from this Court holding, to the contrary, that, unlike assets,
(continued...)
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Accordingly, Janet’s medical expenses, like other property
acquired during the marriage, are subject to the provisions of
KRS 403.190.
That statute requires the trial court to determine,
first, whether those debts, or any portion of them, should be
included in the marital estate, and if so how they might justly
be divided between the parties.
Here, the trial court apparently deemed the entire debt
to be marital and divided it in proportion to the parties’ most
recent incomes.
While we believe that this result was within the
trial court’s discretion under KRS 403.190, for reasons to be
explained below, we are concerned that the court’s method of
arriving at this result contravened that statute.
We are
obliged, therefore, to vacate this aspect of its decree and to
remand for additional proceedings.
Our fault with the trial court’s resolution of this
issue is occasioned by its handling of the separation agreement
which the parties executed in December 1995, when Joseph first
filed his petition for dissolution.
Among its provisions, this
agreement included Janet’s express waiver of any claim to
maintenance or to Joseph’s contribution to her post-petition
debts.
The agreement also provided that it constituted a
complete settlement between the parties and could be modified
only by means of a writing signed by both of them.
At the
(...continued)
liabilities acquired during a marriage are not presumptively marital. O’Neill v. O’Neill, Ky. App., 600
S.W .2d 493 (1980); Bodie v. Bodie, Ky. App., 590 S.W .2d 895 (1979). This conflict is not relevant here,
however, where the important consideration is simply that, under current divorce law, debts existing at the
time of divorce are subject to the general principles of property division as provided in KRS 403.190.
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October 1996 and January 1997 hearings in this matter, both
parties expressed their understanding that this agreement had
been rescinded by their subsequent reconciliations, and was
therefore voided.
Nevertheless, in its final decree, the trial
court characterized the separation agreement as a “partial” one,
found it “not to be unconscionable,” and incorporated it “as if
fully stated” in the judgment.
Not surprisingly, Joseph
complains that the trial court’s sua sponte resurrection of the
separation agreement was erroneous and that the purported
incorporation of the defunct agreement into the judgment renders
the decree incoherent.
We agree.
Courts, of course, are not to disregard properly
executed and conscionable separation agreements.
Ky., 796 S.W.2d 5 (1990).
Brown v. Brown,
However, where a couples’ attempt to
reconcile following execution of such an agreement clearly
manifests a mutual intent to nullify the agreement, the
agreement’s provisions become “void for all purpose[s and t]he
agreement is not revived by a subsequent separation.”
Peterson
v. Peterson, Ky. App., 583 S.W.2d 707, 710 (1979).
As the record in this case makes clear, the parties
intended to nullify their December 1995 agreement.
Thus, even
though many of the agreement’s provisions are not apt to be
controversial (such as those acknowledging Joseph’s non-marital
interest in the marital residence and in two vehicles, and the
parties’ division of household personalty), and even though they
addressed matters which the decree, to be complete, needed to
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resolve, those provisions were nevertheless void.
The trial
court’s attempt to perfect the decree by incorporating them was
clearly erroneous.
This is so not only because of the other
provisions in the decree, noted above, which are inconsistent
with the trial court’s resolution of the maintenance and debt
issues.
It is also because Janet’s medical expenses, if found to
be marital, would significantly alter the marital estate, as it
existed at the time of the agreement.
Thus, the trial court must
reconsider the conscionability of the agreement in light of the
parties’ changed circumstances.
KRS 403.190.
In sum, therefore, although we agree with Janet that
apportionment of her medical expenses is not precluded by KRS
404.040, we are nevertheless persuaded that the analysis required
by KRS 403.190 prior to deciding whether and how to apportion
those expenses has not yet been properly performed.
Accordingly,
we vacate those portions of the Kenton Circuit Court’s January
21, 1997, decree pertaining to property settlement, including the
purported division of Janet’s medical debts, and remand for
additional proceedings.
The trial court is instructed to
entertain arguments by the parties concerning the application of
KRS 403.190 to their situation and to frame its findings and
conclusions accordingly.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Moffitt
Ft. Mitchell, Kentucky
Janet Sue Rassman, pro se
Ludlow, Kentucky
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