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RENDERED: JANUARY 6, 2012; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES L. TICE
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 04-CI-00222
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BEFORE: KELLER, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: James Tice appeals from a Logan Circuit Court judgment
confirming the property division and maintenance award recommendations of the
Domestic Relations Commissioner (the “Commissioner”). Following a careful
review of the record and applicable case law, we find no error in the judgment and,
thus, affirm the Logan Circuit Court.
For the majority of their twenty-two year marriage, James and
Rebecca Tice lived in Florida. Rebecca moved to Kentucky in 2003 and, on May
14, 2004, petitioned the Logan Circuit Court for dissolution of her marriage to
Financial disclosures and affidavits submitted by the parties showed
that their marital income varied from year to year. The Commissioner found that
James’s income ranged from $45,000 to $225,000. Rebecca, who is disabled,
received a monthly income of $709.40 which was derived from social security
benefits and a pension benefit.
At the time of Rebecca’s dissolution petition, Rebecca and James
owned various marital assets, including cash, equity in their home, automobiles,
retirement plans, life insurance, and personal belongings, valued at approximately
$247,101.65. Rebecca and James had debts, including a home mortgage,
outstanding credit card balances, and automobile loans, totaling $181,058.84.
Based on Rebecca’s testimony that she had approximately $2,200 of
monthly living expenses, on August 9, 2004, the Commissioner recommended that
James pay Rebecca a temporary maintenance award of $2,500 per month. James
filed Exceptions to the Recommendation. Following a hearing on the matter, the
trial court affirmed the Recommendation.
On December 7, 2005, the trial court entered an interlocutory decree
which dissolved the parties’ marriage but reserved the issues of property division
and permanent maintenance awards to be determined at a later date. On September
13, 2007, the Commissioner entered a Recommendation dividing marital assets
and debts. Based upon the property division, the Commissioner also amended
James’s maintenance obligation from $2,500 to $1,000 per month. On October 2,
2007, the trial court entered an order confirming the Commissioner’s
On October 5, 2009, James filed a notice to appeal the September 16,
2009, order. His appeal primarily concerns his maintenance obligation.
The trial court has broad discretion to evaluate and assess
maintenance. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003). A reviewing
court will not disturb the trial court’s decision absent an abuse of discretion. Platt
v. Platt, 728 S.W.2d 542, 543 (Ky. App. 1987). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Downing v. Downing, 45 S.W.3d 449,
454 (Ky. App. 2001).
The October 2, 2007, order was set aside pending review of James’s motion to reconsider, alter,
amend, or vacate the recommendation. On November 7, 2007, the Commissioner recommended
denial of James’s motion. The circuit court confirmed the Commissioner’s Recommendation on
September 16, 2009.
KRS 403.200 (1) provides for maintenance only if the court finds that
the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs;
(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
Given Rebecca’s documented disability, limited income, monthly expenses, and
the standard of living she enjoyed during the marriage, the trial court had ample
evidence on which to conclude that she was unable to provide for her needs and
unable to maintain employment.
James claims, however, that the court erred by failing to consider his
diminished assets and income during the maintenance assessment. In the
Commissioner’s September 13, 2007, Recommendations, the temporary
maintenance award of $2,500 was decreased to $1,000 based on Rebecca’s award
of marital assets and James’s decrease in income during the pendency of the
proceeding. The Commissioner concluded, and the trial court later affirmed, that
Rebecca was nonetheless entitled to the maintenance pursuant to Kentucky
Revised Statutes (“KRS”) 403.200.
KRS 403.200 (2) provides trial courts a list of factors for trial courts
to consider when determining the amount and duration of maintenance:
(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
(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.
This list is neither exhaustive nor exclusive. The trial court may consider any and
all factors it deems relevant and assign degrees of weight to the factors. Although
recently James has earned a lesser income than in previous years, Rebecca’s
inability to earn income and the lifestyle enjoyed by the parties over the course of
their marriage support the trial court’s award.
James also claims that the trial court erred by refusing to consider
evidence of Rebecca’s extramarital affair as a factor in its maintenance
determination. Although fault may not be considered when determining whether a
spouse is entitled to maintenance, fault may be considered when determining the
amount and duration of the maintenance award. Chapman v. Chapman, 498
S.W.2d 134, 138 (Ky. 1973). Nonetheless, there is no requirement that an
extramarital affair, or other type of fault, must be considered as a factor in the trial
court’s determination of the amount of maintenance.
Accordingly, the Logan Circuit Court judgment is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred G. Greene
J. Stewart Wheeler