TAMRA BALINDA LEWIS v. GORDON NATHAN LEWIS
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001307-MR
TAMRA BALINDA LEWIS
APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 04-CI-00169
v.
GORDON NATHAN LEWIS
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.
COMBS, CHIEF JUDGE; TAYLOR, JUDGE; MILLER,1 SPECIAL
TAYLOR, JUDGE:
Tamra Balinda Lewis appeals from a June 3, 2005,
order of the Calloway Circuit Court awarding her maintenance of
$900.00 per month for ten years.
We affirm in part, reverse in
part, and remand.
Tamra and Gordon Nathan Lewis were married for over
twenty years.
1
The couple was married December 15, 1984, and
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
divorced by Interlocutory Decree of Dissolution of Marriage
entered in the Calloway Circuit Court on February 15, 2005.
The
matter was subsequently referred to the Domestic Relations
Commissioner to address all remaining disputed issues, including
the amount and duration of maintenance.
53.03.
Ky. R. Civ. P. (CR)
On March 3, 2005, the Commissioner entered Findings of
Fact, Conclusions of Law and Recommendations.
The
recommendations included a stipulation by the parties “that
Tamra is totally disabled, is unable to be gainfully employed
for the purposes of KRS 403.200 and that her only source of
income at that time was Social Security benefits.”
The
Commissioner ultimately recommended that Tamra be awarded
maintenance of $900.00 per month for ten years.
Both parties filed exceptions to the Commissioner’s
recommendations.
CR 53.06.
Tamra also filed a motion pursuant
to CR 52 requesting the circuit court to make specific findings
of fact and state separately its conclusions of law.
By order
entered June 3, 2005, the circuit court adopted the
Commissioner’s recommendations but modified it in part.
As to
the award of maintenance, the circuit court fully adopted the
Commissioner’s recommendation and awarded Tamra maintenance of
$900.00 per month for ten years.
This appeal follows.
Tamra contends the circuit court erred as to the
amount and duration of the maintenance award.
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Tamra
specifically contends the award of maintenance should have been
permanent and that the amount of maintenance awarded was
inadequate.
It is axiomatic that amount and duration of a
maintenance award is within the sound discretion of the circuit
court.
Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990).
However,
an award of maintenance may be reversed where there is a clear
abuse of discretion.
Combs v. Combs, 622 S.W.2d 679 (Ky.App.
1981).
When determining the amount and duration of a
maintenance award, Kentucky Revised Statutes (KRS) 403.200(2)
requires the circuit court to consider “all relevant factors,”
including:
(a) The financial resources of the party
seeking 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.
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We shall initially consider whether the duration of
the maintenance award was proper.
In this Commonwealth,
maintenance is considered rehabilitative in nature and thus,
normally limited in duration.
287 (Ky.App. 1992).
Leitsch v. Leitsch, 839 S.W.2d
Where rehabilitation of a spouse is not
possible, the statutory scheme then operates to prevent a
“‘drastic change’ in the standard of living” established during
the marriage.
Id. at 290 (citations omitted).
Generally, the
duration of a maintenance award is dependant upon two factors:
“(1) the period over which the need exists, and (2) the ability
to pay.”
Combs, 622 S.W.2d at 680.
In the case sub judice, the uncontroverted evidence
indicated that Tamra was forty-five years old at the time of
dissolution, was totally disabled, and would never achieve
gainful employment.
Additionally, the evidence established that
Tamra’s income was limited to the nominal amount of $435.80 per
month in social security benefits, plus miscellaneous government
benefits for housing and food.
Based upon the above undisputed
evidence, it is evident that Tamra is incapable of being
rehabilitated and her income is limited in the foreseeable
future to social security benefits.
Conversely, the evidence
reflected that Gordon was employed full time and earning
approximately $58,000.00 in 2004.
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His monthly expenses amounted
to approximately $2,900.00.
During the marriage, Gordon’s
salary constituted the primary source of income for the family.
Under these circumstances, we believe “[t]he
unfairness of this situation is evident.”
Leitsch, 839 S.W.2d
at 290 (quoting Atwood v. Atwood, 643 S.W.2d 263, 266 (Ky.App.
1982)).
In ten years, at the approximate age of fifty-five,
Tamara will be required to live on $435.80 per month (plus cost
of living adjustments), absent a drastic change in
circumstances.
Considering the duration of the marriage, the
protracted nature of Tamra’s need, the financial ability of
Gordon to meet that need, and Tamara’s lack of financial
resources, we are of the opinion the evidence compels an award
of permanent maintenance.
Accordingly, we hold the circuit
court abused its discretion by awarding maintenance for a period
of only ten years.
As to the amount of the maintenance awarded, we
believe it was proper.
The circuit court correctly considered
the factors set forth in KRS 403.200(2) when it awarded Tamra
maintenance.
Specifically, the court considered Tamra’s limited
income of $435.80 per month, the small amount of marital
property apportioned to her, Tamra’s inability to be
rehabilitated, the parties twenty-year marriage, and Gordon’s
ability to meet his monthly expenses of $2,900.00 per month,
while also meeting Tamra’s expenses of $2,489.00 per month.
-5-
As
such, we do not believe the circuit court abused its discretion
upon the amount of maintenance awarded.
In sum, we conclude the circuit court erred as to the
duration of the maintenance award.
Under the unique
circumstances presented, we believe that the award of
maintenance should be permanent.2
As a permanent maintenance
award, the award is considered “open-ended” and, as a result,
subject to modification under KRS 403.250(1).3
See 16 Graham &
Keller, Kentucky Practice, § 16.21 (2d ed. 1997).
We further
conclude that the amount of maintenance awarded was proper.
For the foregoing reasons, the order of the Calloway
Circuit Court is affirmed in part, reversed in part, and this
cause is remanded for entry of a permanent maintenance award in
the amount of $900.00 per month.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Stephen C. Sanders
Murray, Kentucky
Ricky A. Lamkin
Murray, Kentucky
2
Of course, the maintenance would be subject to termination upon the death of
either party or Tamra’s remarriage. See Kentucky Revised Statutes (KRS)
403.250(2).
3
Under KRS 403.250(1), a maintenance award may be modified “upon a showing of
changed circumstances so substantial and continuing as to make the terms
unconscionable.”
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