VALDA CHRISTINE WRIGHT v. RICHARD LEE WRIGHT
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RENDERED:
OCTOBER 28, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000245-MR
VALDA CHRISTINE WRIGHT
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDA M. HELLMANN, JUDGE
ACTION NO. 01-FC-001257
v.
RICHARD LEE WRIGHT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
BARBER, JUDGE:
This appeal stems from a dissolution of marriage
proceeding originating in Jefferson County, Kentucky.
The
parties were married May 27, 1978, and separated in December
2000.
Two children were born of the marriage, but each had
reached the age of majority before a decree dissolving the
marriage was entered.
Appellant, Valda Christine Wright
(Valda), filed for the dissolution of marriage February 13,
2001.
At that time, Appellee, Richard Lee Wright (Richard),
resided in California necessitated by his job as a buyer for a
department store.
Valda resided with him briefly in California,
but returned to the parties’ marital home in Louisville in
December 2000.
The divorce proceedings between the parties were
less than amicable.
Valda was awarded temporary maintenance of $1,200 per
month July 31, 2002.
Valda’s temporary maintenance was
increased to $1,300 per month July 28, 2003.
A final hearing
was held before Special Judge Carl Hurst on September 30, 2003.
A decree was entered October 21, 2003 awarding Valda maintenance
of $1,200 per month until December 31, 2004.
Valda filed a CR
59.05 motion October 30, 2003 asking the court to (1) alter its
maintenance award to a higher amount and of longer duration; (2)
to include a $400 accrued maintenance arrearage; (3) to alter
its attorney fee award to reflect the same as a judgment rather
than a contingency; and (4) to designate the parties’ adult
son’s college tuition as a marital debt.
Richard responded
November 10, 2003 requesting the decree remain unaltered with
the exception of his acknowledgement of a $300 maintenance
arrearage.
A hearing on Valda’s CR 59.05 motion was held
December 23, 2003.
The trial court overruled Valda’s motion
with respect to their son’s college debt and her maintenance
award, but sustained both the $300 maintenance arrearage and the
change in the attorney fee award status per order entered
January 6, 2004.
On February 4, 2004, Valda filed a notice of
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appeal of the October 21, 2003 (decree) and January 6, 2004 (CR
59.05 motion) orders.
Valda’s sole issue in her appeal is that
both the amount and duration of maintenance awarded by the trial
court represented an abuse of discretion.
A trial court’s decision regarding maintenance will
not be reversed unless the trial court abused its discretion or
based its decision on findings of fact that are clearly
erroneous.
Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003).
Before awarding maintenance to either party to a dissolution,
the trial court must find that the party: (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.
Gentry v. Gentry, 798 S.W.2d 928, 936-937 (Ky. 1990),
(citing KRS 403.200(1)).
The court is then required to consider
the factors listed in KRS 403.200(2)(a)-(f) before ordering the
amount and duration of maintenance.
S.W.2d 928, 937 (Ky. 1990).
Gentry v. Gentry, 798
Kentucky Revised Statute 403.200(2)
states
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 party seeking
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maintenance, including marital property
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.
In its Findings of Fact, the trial court stated the
following about the parties’ status at the time of the final
hearing:
[Valda] is a 46 year old, articulate
and educated individual with no apparent
physical reason that would adversely affect
her employability. She worked at regular
intervals during the marriage, taking time
away from work when the parties’ children
were younger and in need of more parental
attention. She is only one year short of
educational studies needed to obtain a
college degree in business. She recently
started a new job in retail sales, working
full-time for 37 hours weekly at ten dollars
($10) per hour. This represents about
nineteen thousand two hundred forty dollars
($19,240) annual gross salary. She has
applied for a position in management with
the same employer. The one thousand three
hundred dollar ($1,300) Court ordered
maintenance from [Richard] increases her
annual income to about thirty-four thousand
eight hundred forty dollars ($34,840).
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[Valda] asserts the need for five
thousand dollars ($5,000) monthly living
expenses, including one thousand five
hundred dollars ($1,500) for the amount of
the mortgage payment on the Breeland Avenue
residence, 1 eight hundred dollars ($800)
groceries (the same amount earlier claimed
when both children were in the home with
[Valda]), three hundred dollars ($300) for
credit card use when she currently has no
credit card, one hundred forty dollars
($140) for household [items], two hundred
fifty dollars ($250) auto insurance for her
and the parties’ adult son, etc.
[Richard] has worked many years in
retail. He currently earns an annual salary
of seventy-two thousand dollars ($72,000).
He submitted evidence of monthly expenses
exceeding five thousand dollars ($5,000) as
of August 2003. His take-home pay is just
under five thousand dollars ($5,000) per
month. His expenses for day-to-day personal
items and room and board amount to about one
thousand six hundred dollars ($1,600)
monthly. He also pays health care and auto
insurance for both parties, pays [Valda] one
thousand two hundred dollars ($1,200) in
maintenance (now increased to one thousand
three hundred dollars ($1,300)) and
approximately one thousand, one hundred
thirty-one dollars ($1,131) in monthly
installments toward outstanding marital
indebtedness, back taxes, and penalties for
invading his retirement account to pay other
marital obligations. [Richard] lives in a
small, sparsely furnished, one bedroom
apartment.
1
At the time of the final hearing, the Breeland Avenue residence was facing
foreclosure because no mortgage payments had been made by either party since
August 2002. Richard ceased making voluntary mortgage payments when he was
ordered to pay temporary maintenance to Valda. In August 2002, the parties
had approximately $30,000 equity in the home. The trial court found that
Valda had dissipated the greater part, if not all, of the parties’ equity in
the property by the final hearing.
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The trial court stated the following in its
Conclusions of Law in relation to Valda’s request for
maintenance:
The Court may consider any temporary
award of maintenance in determining whether
maintenance should be awarded as a part of a
final decree. The one thousand two hundred
dollars ($1,200) first set as temporary
maintenance, coupled with [Valda’s] present
income from her new employment, represents
about thirty-three thousand six-hundred
thirty dollars ($33,630) per year. This is
a little less than half of [Richard’s]
income but [Richard] is responsible for
satisfying the $70,000 in marital debts and
he has voluntarily given [Valda] his half of
the equity in their marital residence. The
Court concludes that [Richard] should
continue paying maintenance to [Valda] but
in the first set amount of $1,200.
Furthermore, the garnishment or wage
assignment currently in place to deduct that
amount automatically from [Richard’s] salary
should remain in effect. The Court also
believes a date should be set to terminate
maintenance because of the inconvenience
required to schedule future reviews
involving multi-state parties separated by
such a great distance. The termination date
will be subject to parties’ rights to
request any other appropriate action
relative to termination, modification or
continuation of maintenance. Considering
her employable abilities, age, and nominal
financial obligations, [Valda] should be
able to support herself soon in a reasonable
and comfortable manner without maintenance
from [Richard]. The Court is not persuaded
that we should assist in financing so high a
standard of living that [Valda] and
[Richard] are once again in financial
straits due to expenses far exceeding
earning resources.
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The trial court then held that the maintenance
payments would cease December 31, 2004, subject to
appropriate requests for earlier termination, modification,
or continuation.
The record shows the Jefferson Family Court
considered all the statutory factors.
The trial court
considered the financial resources of Valda and Richard’s
ability to meet his needs while meeting Valda’s needs.
The
trial court found that Valda could complete her college
education in one year. 2
It further found that Valda was a
46 year old, articulate and educated individual with no
apparent physical problems that would adversely affect her
employability.
The court acknowledged the duration of the
parties’ marriage in its Findings of Fact 3 and further
determined the parties had been living beyond their means
for quite awhile.
The trial court properly considered all
factors of KRS 403.200(2) and the record in rendering its
decision and thus did not abuse its discretion nor base its
decision on findings of fact that are clearly erroneous.
Valda also asserts the trial court abused its
discretion by considering the inconvenience of scheduling
2
Valda testified to the same during cross-examination at the final hearing
September 30, 2003.
3
The original decree had a typographical error stating the parties’ year of
marriage was 1987. This error was corrected by order dated February 21,
2005, to change the year of the parties’ marriage to 1978.
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reviews between multi-state parties in ruling on the
maintenance issue.
Valda contends that the trial court
used this as a basis for terminating maintenance at one
year.
It would be problematic if the sole reason the trial
court limited the duration of an award of maintenance was
due to distance between the parties.
However, there is
ample additional support for the trial court’s award of
temporary maintenance contained in the decree discussed in
the foregoing paragraphs.
Further, the trial court
specifically stated that the termination date would be
subject to the parties’ rights to request any other
appropriate action relative to termination, modification,
or continuation of maintenance.
See also KRS 403.250(1).
Therefore, we find no abuse of discretion in relation to
this argument.
For the reasons set forth above, we believe the award
of maintenance by the trial court does not reflect an abuse of
discretion nor is based upon findings of fact that are clearly
erroneous.
Therefore, we affirm the Jefferson Family Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bryan Gowin
Louisville, Kentucky
Walker C. Cunningham, Jr.
Louisville, Kentucky
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