DORIS POWELL v. JAMES SCOTT POWELL
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000569-MR
DORIS POWELL
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 98-CI-00089
v.
JAMES SCOTT POWELL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from that portion of a
domestic order awarding appellant maintenance.
Appellant argues
that the court did not make specific enough findings regarding
maintenance and that the amount and duration of maintenance was
clearly erroneous on its face.
We disagree, and thus affirm.
Appellant, Doris Powell, and appellee, James Powell,
were married in 1980 with one child born of the marriage, Sarah,
born in 1986.
At the time the parties met, Doris was a nursing
instructor and James was in his last year of medical school.
During that time, Doris was the sole support of the family.
Doris continued to work full-time while James completed his
internship and residency in neurosurgery.
In 1987, shortly after
Sarah was born, Doris quit working outside the home to be a fulltime homemaker and raise the parties’ child.
The parties moved
to Ashland in 1987 where Dr. Powell began working in private
practice as a neurosurgeon.
On January 19, 1998, the parties separated, and on
January 27, 1998, Doris filed a petition for dissolution of
marriage.
On April 3, 1998, an interlocutory decree of
dissolution was entered dissolving the marriage and reserving all
other issues for further litigation.
Doris was initially given
temporary custody of the child, but that order was later modified
to give temporary custody to James.
A hearing on the matter was held on January 12, 2000,
before the Domestic Relations Commissioner.
At this hearing, the
parties announced that they had entered into an agreement and
stipulation as to all property and custody issues, leaving only
the issues of maintenance, attorney fees, and costs for
resolution.
In the agreement, the parties agreed to share joint
custody of the child, with James being the primary residential
custodian.
As to the division of marital property, the parties
agreed that James would receive certain investment property in
Greenup County, the Ford Explorer, a 1990 Jeep, his medical
practice, the cash value of his life insurance policy, the income
tax refund for 1999, a certificate of deposit, and one-half of
his pension.
Pursuant to the agreement, Doris would receive the
1996 Volvo, the 1990 Jaguar, the other half of the pension, the
personal property in the marital residence, and $360,000.
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$150,000 of the latter sum was to be paid when the life insurance
policy was cashed, and the remaining $210,000 was to be paid over
three years.
The parties’ marital residence was to be sold and
the equity therein divided equally.
Until the property was sold,
Doris would be allowed to reside in the house while James would
continue to pay the mortgage payment, the insurance thereon, the
property taxes, and necessary maintenance.
Further, James was to
be responsible for the credit card debts and the debt owed to the
church.
In his report and recommendations entered on
January 28, 2000, the Domestic Relations Commissioner
incorporated the terms of the parties’ agreement.
As to
maintenance, the Commissioner noted that Doris was 48 years of
age, had a Bachelor’s and Master’s degree in nursing, and had
been employed in the past as a surgical scrub nurse, a nursing
home charge nurse, and a nursing instructor.
The Commissioner
further noted from the testimony of Doris herself as well as
another witness that it would take approximately 150 hours of
continuing education in order for Doris to again become
employable as a nursing instructor or nurse earning anywhere from
$20,000 to $45,000 a year.
The Commissioner also recognized that
Doris presented a budget showing $5,400 per month in expenses.
As to James, the Commissioner found that “for year 1999 through
November of said year, he grossed $938,758.77 with him receiving
a salary of $565,510.52” and that he “introduced a monthly budget
showing expenses of $34,087.00 per month.”
remaining findings were as follows:
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The Commissioner’s
The Commissioner hereby finds that the
Respondent should pay to the Petitioner the
sum of $3,000 per month as maintenance for a
period of three years. The Court makes this
recommendation based upon the factors set
forth in KRS 403.200. The Court finds that
the Petitioner has sufficient property which
has been apportioned to her to provide for
her reasonable needs and is able to support
herself through appropriate employment. . . .
The evidence before the Commissioner, when
taking into consideration the agreement
reached between the parties in regards to the
property division wherein the Respondent is
to pay to the Petitioner the sum of
$360,000.00 in quarterly payments over the
next three years and the income that she
could earn from investment of said money,
along with the $3,000.00 per month
recommendation contained herein, that the
Petitioner should be able to adequately
maintain herself in accordance with the
budget presented by her to this Court. The
Commissioner further finds that the
Petitioner has done nothing in the past two
years to put herself in a position to become
immediately employable, even though she could
have done so. The Commissioner finds that
the Petitioner has a Master’s degree in
nursing and can become employable once she
completes 150 hours of Continuing Education,
which can be done in a year or less. The
amount of money that she can earn from this
employment, along with the money that she
could earn from investment of her division of
the marital estate is sufficient to maintain
her.
Doris filed exceptions to the above findings.
On
February 8, 2000, the court entered its order overruling the
exceptions and adopting the recommendations of the Commissioner.
From that order, Doris now appeals.
Doris first argues that the court made insufficient
findings of fact to support its decision regarding the amount and
duration of maintenance.
CR 52.01 requires that in cases tried
by the court, the court must make specific findings of fact.
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KRS
403.200(1) provides that in order for a court to make an award of
maintenance, the court must first find 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. . . .
KRS 403.200(2) provides:
The maintenance order shall be in such
amounts and for such periods of time as the
court deems just, and after considering all
relevant factors including:
(a) The financial resources of the parties
seeking maintenance, including marital
property apportioned to him, and his ability
to meet his needs independently, . . . ;
(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.
In reviewing the Commissioner’s report, we see that the
Commissioner made the specific findings required by KRS
403.200(1) and determined that a maintenance award of $3,000 per
month for three years would be sufficient to allow her to meet
her monthly expenses.
In support of these findings, the
Commissioner looked at the property received by Doris pursuant to
the parties’ agreement, particularly the $360,000 and the income
that could be derived therefrom, and the fact that Doris is
capable of being employed as a nurse after 150 hours of
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continuing education.
Clearly, the Commissioner felt that after
three years, Doris should be able to fully support herself
through her earnings as a nurse and the property awarded her in
the agreement, although the Commissioner did not specifically say
so.
Doris also complains that the Commissioner did not make
any findings as to James’s income and the reasonableness of his
listed expenses.
It can be inferred from the Commissioner’s
acceptance of both parties’ budgets that he found both to be
reasonable.
As to James’s income, the Commissioner specifically
found that his business grossed $938,758 in 1999 and he received
a salary of $565,510.
Finally, Doris contends that the Commissioner did not
specifically state Doris’s income-earning potential or what he
considered to be Doris’s investments and the rate of return
thereon.
As to available investments, the Commissioner
specifically stated that he was considering the $360,000 and the
income she could earn thereon, which one could infer was a
reasonable interest rate thereon.
Relative to Doris’s income-
earning potential, the Commissioner noted the evidence that Doris
could earn anywhere from $20,000 to $30,000 or up to $45,000 per
year, depending on the type of employment she obtained.
We do
not believe the Commissioner is required to be more specific than
that.
In sum, we believe all of the Commissioner’s findings were
sufficiently specific so as not to be in error.
Doris next argues that the amount and duration of
maintenance awarded was clearly erroneous on its face.
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The
decision to award maintenance is within the discretion of the
trial court.
(1977).
Browning v. Browning, Ky. App., 551 S.W.2d 823
Findings regarding a maintenance award will be upheld if
they are supported by substantial evidence.
App., 565 S.W.2d 169 (1978).
Adams v. Adams, Ky.
Doris maintains that the $3,000 a
month is not sufficient to meet her needs and that, even if she
earns $45,000 a year after the three years, that income would
also be insufficient to meet her needs.
In particular, Doris
complains that the Commissioner failed to take into account the
tax implications of the award and any future salary.
Although had we tried the case, we may have awarded
Doris more maintenance or for a longer period, we cannot say the
trial court abused its discretion in its award in this case.
Doris was 48 years of age at the time of the dissolution and has
a Master’s Degree in nursing and significant experience working
in that field.
The Commissioner properly relied on evidence that
it would take only one year or less to complete the continuing
education necessary for her to procure a job as a nurse or
nursing instructor earning up to $45,000 a year.
At that point,
Doris would be able to support herself through appropriate
employment pursuant to KRS 403.200.
Hence we cannot say that the
three-year duration of the award was in error.
The $3,000 a
month, in addition to the $360,000 Doris received, should allow
her to meet her listed monthly expenses of $5,400 a month for the
three years of the award.
As to the tax implications, we know of
no requirement that the court must consider net income in making
maintenance determinations.
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For the reasons stated above, the judgment of the Boyd
Circuit Court is affirmed.
MILLER, JUDGE, CONCURS.
EMBERTON, JUDGE, DISSENTS BY SEPARATE OPINION.
EMBERTON, JUDGE, DISSENTING.
I respectfully dissent.
I cannot agree with the opinion of the majority that the trial
court did not abuse its discretion.
The basic principles on
which we determine the amount and term of maintenance are clearly
set out in KRS 403.200(2).
Every single factor set out in (a)
through (f) practically mandates a considerably higher
maintenance award.
The case ought to be remanded directing the
trial court to so find.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gordon J. Dill
Ashland, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
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