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RENDERED: APRIL 26, 2013; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GREENUP CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE DAVID D. FLATT, SPECIAL JUDGE
ACTION NO. 11-CI-00345
JOHN M. FANNIN
AFFIRMING IN PART, REVERSING IN PART,
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BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Jennifer Fannin brings this appeal from an October 28, 2011,
Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage
rendered by the Greenup Circuit Court, Family Court Division (family court). We
affirm in part, reverse in part, and remand.
Jennifer and John Michael Fannin were married on September 26,
1981, and three children were born of the parties’ marriage.1 During the marriage,
John worked for C & O Railways; Jennifer worked briefly but had not worked
outside the home since 1988. The parties separated on July 9, 2010, and Jennifer
filed a petition for dissolution of marriage on May 10, 2011. At the time of the
dissolution proceeding, John was receiving a disability pension from the railroad in
the net amount of $2,270.81 per month.
Pursuant to the October 28, 2011, Findings of Fact, Conclusions of
Law and Decree of Dissolution of Marriage, the parties were awarded joint custody
of their seventeen year old daughter, and John was designated the primary
custodian. Jennifer was ordered to pay child support of “$184.10 per month
beginning September 1, 2011 and continuing until the minor child is 18 years old
or graduates from high school.” The parties’ only substantial asset was their
marital residence which was not encumbered by a mortgage.2 John was awarded
the marital residence and ordered to secure financing to purchase Jennifer’s onehalf interest.3 John was also ordered to pay Jennifer maintenance of $550 per
The parties’ two oldest children were emancipated at the time of the dissolution of marriage
proceeding. The remaining child was seventeen at the time the decree of dissolution was
Evidence was presented that past due property taxes were owed on the marital residence and
that there was a judgment lien against the residence.
The parties testified that the value of the marital residence was between $75,000 and $85,000.
The family court ordered an appraisal, but at the time of the filing of the notice of appeal there
was not an appraisal included in the record.
month until she received funds representing her share of the marital home or until
she “either wins or is denied her social security.” This appeal follows.
Jennifer contends that the family court erred as to the amount and
duration of the maintenance award. Jennifer specifically contends that the award
of maintenance should have been permanent and that the amount of maintenance
awarded was inadequate.
Kentucky Revised Statutes (KRS) 403.200(2) requires the family
court to consider “all relevant factors” when determining the amount and duration
of a maintenance award:
(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
(b) The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
(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 this Commonwealth, an award of maintenance is generally considered
rehabilitative in nature and, thus, normally limited in duration. Leitsch v. Leitsch,
839 S.W.2d 287 (Ky. App. 1992). Where rehabilitation is not possible, the
statutory scheme operates to prevent a “‘drastic change’ in the standard of living”
established during the marriage. Id. at 290 (citation omitted). And, it is axiomatic
that the 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). And, an award
of maintenance will not be reversed unless there is a clear abuse of discretion.
Combs v. Combs, 622 S.W.2d 679 (Ky. App. 1981).
In the case sub judice, the evidence indicates that the family court
considered the relevant factors identified in KRS 403.200. Although the amount of
marital property apportioned to Jennifer was modest, the circuit court awarded her
a lump sum amount representing one-half of the value of the marital residence.4
Jennifer did testify she suffered from significant health issues that prevented her
from working but failed to offer any medical evidence of same. Jennifer also
testified that she had applied for social security disability benefits, but her request
was denied. Jennifer stated that she was appealing the denial. Conversely, the
record reflected that John received a disability pension benefit from the railroad in
the net amount of $2,270.81 per month. John testified that he believed Jennifer
was not working because she had a prescription drug addiction. John also testified
that he was having a difficult time “making ends meet” but conceded that he could
pay Jennifer maintenance of $450 per month.
There was evidence that the marital residence was valued between $75,000 to $85,000.
Under the circumstances of this case, we do not believe the family court
abused its discretion by awarding Jennifer $550 per month in maintenance until
she receives her lump sum payment representing her one-half interest in the
residence or until she either receives or is denied disability benefits. Considering
the modest standard of living established during the marriage, the lack of marital
assets, and the minimal amount of John’s disability benefit, we are of the opinion
that the amount and duration of the maintenance award was not an abuse of
Jennifer next contends the family court erred by ordering the child
support award retroactive to September 1, 2011. Jennifer argues that James did not
file a motion for child support on September 1, 2011; thus, the retroactive award of
child support from that date was erroneous.
It is well-established that child support may only be made retroactive to the
date of the filing of a motion for child support. See Giacalone v. Giacalone, 876
S.W.2d 616 (Ky. App. 1994). Given that John did not file a motion for temporary
child support as permitted by KRS 403.160, we believe the family court erred by
ordering the award of child support retroactive to September 1, 2011, and we
reverse such award. Upon remand, the circuit court shall award child support to
John effective from October 28, 2011.
In sum, we hold that the family court properly awarded maintenance to
Jennifer, but the family court erred by awarding child support retroactive to
September 1, 2011. Upon remand, the family court shall amend the effective date
of its child support award to the date of the decree, October 28, 2011.
For the foregoing reasons, the Order of the Greenup Circuit Court is
affirmed in part, reversed in part, and remanded for proceedings consistent with
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey D. Tatterson
Jeffrey D. Hensley