RALPH LYNN OLDHAM v. SHARON SUE OLDHAM
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RENDERED: AUGUST 20, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: SEPTEMBER 10, 1999; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001270-MR
RALPH LYNN OLDHAM
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 93-CI-000644
v.
SHARON SUE OLDHAM
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Ralph Lynn Oldham (Ralph) appeals an order of
the Hopkins Circuit Court entered May 1, 1998, denying his motion
to terminate maintenance paid to his former spouse, Sharon Sue
Oldham (Sharon).
We affirm.
The Hopkins Circuit Court dissolved the parties’
twenty-nine year marriage on September 1, 1995.
The trial court
ordered Ralph to pay Sharon maintenance in the sum of $750 per
month pursuant to recommendations made by the Domestic Relations
Commissioner (DRC) in his reports of June 2, 1994, and July 20,
1994.
The DRC found that maintenance was justified based upon
Sharon’s inability to find suitable employment, her limited job
skills, her age, her financial condition, and the length of the
parties’ marriage.
However, the DRC specifically called the
maintenance award an “open-ended” award, not to continue
indefinitely and stressed that Sharon make good faith attempts to
find suitable employment.
On November 12, 1996, Ralph moved the trial court to
terminate maintenance based upon Sharon’s continued unemployment.
The matter was heard before the DRC and at that time Ralph
alleged that the maintenance should also be terminated based upon
Sharon’s cohabitation with Davey Coker (Davey).
On March 21,
1997, the DRC recommended that the trial court reduce maintenance
to $550 per month for a period of twenty (20) years but not
terminate it.
After Ralph filed exceptions to the DRC report,
the trial court remanded the case to the DRC with instructions to
take additional evidence regarding Sharon’s living expenses.
On
October 2, 1997, the DRC filed his report and recommendation with
regards to Sharon’s living expenses.
On May 1, 1998, the trial
court overruled Ralph’s motion to terminate maintenance and
awarded Sharon maintenance of $550.00 per month payable for
twenty years.
This appeal followed.
Ralph argues the trial court should have terminated
maintenance obligation for two reasons: (1) Sharon’s cohabitation
with another man; and (2) Sharon’s failure to pursue new
employment.
It is appropriate to note at this point that:
The determination of questions regarding
maintenance is a matter...delegated to the
sound and broad discretion of the trial
court, and an appellate court will not
disturb the trial court absent an abuse of
discretion. [citations omitted]. An
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appellate court is not authorized to
substitute its own judgment for that of the
trial court where the trial court’s decision
is supported by substantial evidence.
[citations omitted].
Barbarine v. Barbarnie, Ky. App., 925 S.W.2d 831, 832 (1996).
“In such matters, unless absolute abuse of discretion is shown,
the appellate court must maintain confidence in the trial court
and not disturb the findings of the trial judge.”
Clark v.
Clark, Ky. App., 782 S.W.2d 56, 60 (1990).
Modification of maintenance is governed by KRS 403.250,
which provides in relevant part:
(1)
...[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...
(2)
Unless otherwise agreed in writing
or expressly provided in the
decree, the obligation to pay
future maintenance is terminated
upon the death of either party or
the remarriage of the party
receiving maintenance.
The Kentucky Supreme Court in Combs v. Combs, Ky., 787 S.W.2d 260
(1990), stated:
We believe that a maintenance
recipient’s cohabitation can render continued
maintenance “unconscionable” if the nature of
the cohabitation constitutes a new “financial
source” as contemplated in KRS 403.200(2)(a).
There is ample evidence in the case at bar to
support the trial court’s conclusion that the
respondent’s cohabitation did constitute a
substantial new resource for her since the
Court’s previous decree of November 5, 1978.
As an appellate court, neither the Court of
Appeals nor this Court is authorized to
substitute its own judgment for that of the
trial court on the weight of the evidence,
where the trial court’s decision is supported
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by substantial evidence. Reichle v. Reichle,
Ky., 719 S.W.2d 442 (1986). The trial court
in the present case properly considered
respondent’s cohabitation as a factor in
determining that Movant’s maintenance
obligation should be suspended.
We recognize that not every instance of
cohabitation constitutes a change in
circumstances making continued maintenance
“unconscionable.” We do not intend by this
opinion to open the floodgates to motions to
terminate or suspend maintenance payments in
every situation in which the maintenance
recipient has begun dating, or has formed
casual relationships with persons of the
opposite sex.
Combs, 787 S.W.2d 262.
The Combs Court then set forth the
following six factors to be considered by the trial court in
determining whether or not to terminate maintenance: (1) Duration
of the cohabitation, (2) Economic benefit of the cohabitation,
(3) Intent of the parties cohabitating; (4) Nature of the
cohabitation, (5) Nature of the financial arrangements and (6)
Likelihood of a continued relationship.
Id.
Ralph has failed to show that the trial court abused
its discretion by denying his motion to terminate maintenance.
A
thorough review of the record shows that Sharon presented
substantial evidence to the DRC and ultimately to the trial court
in opposition to Ralph’s motion.
The testimony relied upon by
the DRC indicated:
1.
Sharon and Davey’s relationship was
not permanent;1
1
On April 10, 1998, Sharon filed a notice with the trial
court stating that Davey no longer lived in her home or spent
time there. Further, she stated that she did not expect to
receive any future financial assistance from him.
-4-
2.
Sharon and Davey did not have joint
banking accounts;
3.
Sharon and Davey each paid their
own expenses;
4.
Davey effectuated repairs in
Sharon’s home in exchange for
residence there;
5.
Sharon and Davey did not intend to
marry but to remain friends; and
6.
Davey did not have sufficient
assets to support Sharon.
Based upon this testimony and other evidence, the trial court
denied Ralph’s motion to terminate maintenance.
We do not
believe the trial court abused its discretion in this regard.
This case is similar to the Combs case where the Court
held:
Our decision is based on KRS 403.250(1), not
KRS 403.250(2). If the legislature wants to
make a policy decision to automatically
terminate maintenance upon a recipient’s
cohabitation, then it should amend KRS
403.250(2) to add cohabitation as a grounds
for automatic termination.
Combs, 787 S.W.2d 263.
Second, Ralph argues that the trial court should have
terminated maintenance because Sharon has not found appropriate
employment to support herself.
Although the DRC stated in his
recommendations of June 2, 1994, that Sharon should make every
effort to seek employment and become self-sufficient, he also
noted that this would be a difficult proposition due to her age
and job skills.
In his March 21, 1997, recommendation, the DRC
stated:
Surely [Ralph] does not expect his
maintenance obligation to last for only four
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years under the Commissioner’s prior ruling.
A reading of Kentucky case law should
convince Ralph that there is ample legal
precedent supporting permanent maintenance
awards for twenty years or the life of the
recipient when marriages have lasted for
twenty or more years. This was a marriage of
twenty-seven years prior to separation. The
Commissioner’s comments in paragraph 4 of his
July, 1994 [and the comments in the June 2,
1994, recommendations] ruling were intended
to encourage Sharon to be self-supporting and
for her to recognize that a maintenance award
is seldom an amount that is adequate to live
on.
We believe an award of maintenance of $550 per month for twenty
(20) years was appropriate in this case pursuant to guidelines
set out in KRS 403.200, which provides:
(1)
In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court
which lacked personal jurisdiction over
the absent spouse, the court may grant a
maintenance order for either spouse only
if it finds that the spouse seeking
maintenance:
(a) Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
(b) Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home.
(2)
The maintenance
amounts and for
the court deems
considering all
including:
order shall be in such
such periods of time as
just, and after
relevant factors
(a) The financial resources of the
party seeking maintenance,
including marital property
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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.
Clearly, the record shows that the DRC and trial court
considered the length of the marriage, Ralph’s financial status,
Sharon’s inability to support herself, Sharon’s age and the
standard of living established during the marriage when deciding
the issue of maintenance.
Given these facts, we refuse to
disturb the sound reasoning of the trial court.
For the foregoing reasons, the decision of the trial
court is affirmed.
DYCHE, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Keith Cartwright
Madisonville, KY
Wendell Holloway
Madisonville, KY
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