MICHAEL FORREST STEPHENS v. REBECCA BARRIER STEPHENS
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003227-MR
MICHAEL FORREST STEPHENS
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
ACTION NO. 92-CI-00998
v.
REBECCA BARRIER STEPHENS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Michael Forrest Stephens (Michael) appeals from
the order of the Hardin Circuit Court entered on September 16,
1996, which overruled Michael’s motion to modify a maintenance
award due to changed circumstances.
Michael argues that the
trial court erred in determining that the maintenance award was
not subject to modification since the trial court had previously
stated in an order that the award was not a lump sum award.
affirm.
We
On July 15, 1992, Rebecca Barrier Stephens (Rebecca)
filed a petition seeking dissolution of her seventeen-year
marriage to Michael.
By judgment entered on January 6, 1995,
Michael was ordered to pay Rebecca maintenance “in the sum of
$1,500 per month for a period of ten (10) years.”
Rebecca filed
a motion to alter and amend a portion of the trial court’s
judgment stating as follows:
Specifically, the Petitioner is unclear as to
whether or not the Court has awarded her a
sum certain of maintenance due and payable
over a period of time, or whether this Court
has set monthly payments which may be
modified. If the Court has set monthly
payments which may be modified, then Counsel
asks the Court to make the payments for
lifetime. If the Court has intended these
payments to be nonmodifiable [sic], then the
Court should specifically make that ruling.
On April 12, 1995, the trial court ruled on Rebecca’s motion to
clarify its ruling in regard to the maintenance payments.
The
trial court quoted Kentucky Revised Statutes (KRS) 403.250(2),
then stated as follows:
The judgment is amended to provide that
the award of maintenance is not a lump sum
award and in accordance with KRS 403.250(2)
maintenance shall terminate upon the death of
either party or in the remarriage of the
Petitioner.
The trial court then amended its original judgment and order in
pertinent part as follows:
6. That the Respondent shall pay
maintenance to the Petitioner in the sum of
$1,500.00 per month for a period of ten years
or until the death of either party or the
remarriage of the Petitioner whichever first
occurs.
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This was a final and appealable order and neither party appealed.
On July 3, 1996, Michael filed a motion to modify the
maintenance award “on the grounds that there have been
substantial and continuing changed circumstances which make the
original award unconscionable.”
for September 13, 1996.
The trial court set a hearing
Before any proof had been taken at the
hearing, Rebecca, relying on Dame v. Dame, Ky., 628 S.W.2d 625
(1982), moved the trial court to overrule Michael’s motion as a
matter of law.
Rebecca argued that the award of $1,500 per month
for ten years was the equivalent of a lump sum award payable in
installments and thus, was not subject to modification.
Michael
responded that the trial court in the order amending the original
judgment specifically stated that the maintenance award was not a
lump sum award.
Michael also argued that Rebecca had not filed a
written motion as required by the local rules of the Hardin
Circuit Court and that she should have been prohibited from
bringing the oral motion at the hearing.
The trial court did not allow any proof to be taken and
entered an order on September 16, 1996, which summarized its
previous orders and then stated:
Therefore, the Court found that
maintenance would be terminated by the death
of either party or remarriage of the
Petitioner. The Court cited and addressed
only KRS 403.250(2) and amended its prior
order by only adding “or until death of
either party or remarriage of the Petitioner,
whichever occurs first.”
The Trial Court relies on Dame v. Dame,
Ky., 628 S.W.2d 625 (1982)[,] in which the
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language is almost identical to the order in
this case. In Dame, supra, the Appellate
Court held that a maintenance award in a
fixed amount to be paid over a definite
period of time was not subject to
modification.
Thus, the trial court overruled Michael’s motion to modify.
Michael then filed a motion to alter, amend, or vacate
the September 16 order.
The trial court overruled this motion
and stated:
The Order must be viewed in its entirety.
Although the Order may have been inartfully
worded, by quoting the statute, KRS
403.250(2), it is obvious that the Court was
simply parroting that statute to provide that
maintenance would terminate upon the
remarriage of the Petitioner.
This appeal followed.
Since our review of the issues in this case is as a
matter of law, we need not defer to the ruling of the trial
court.
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
KRS 403.250 states in pertinent part as follows:
(1) Except as otherwise provided in
subsection (6) of KRS 403.180, the provisions
of any decree respecting maintenance may be
modified only upon a showing of changed
circumstances so substantial and continuing
as to make the terms unconscionable. . . .
(2) Unless otherwise agreed in writing or
expressly provided in the decree, the
obligation to pay future maintenance is
terminated upon the death of either party or
the remarriage of the party receiving
maintenance.
In Dame, supra, the Supreme Court specifically
considered KRS 403.250 and addressed the issue of whether the
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circuit court has “jurisdiction to change an award of maintenance
in a fixed and determinate amount to be paid either in a lump sum
or for a specific amount to be paid over a definite period of
time[.]”
Id. at 625.
The Court stated that if KRS 403.250
purported to apply only to open-end awards, “the legislature in
enacting KRS 403.250 merely carried into the statute the law as
it existed prior to the adoption of the statute.”
Id. at 626.
On the other hand, the Court queried, “did the legislature in
enacting KRS 403.250 intend to extend the jurisdiction of the
circuit court so as to permit it to amend or modify a lump sum
award of maintenance as well as an open-end award?”
Id.
The
Court discussed the purpose of Chapter 403 and it noted
comparable foreign statutory law and case law.
The Court
concluded as follows:
The law favors finality to litigation. To
extend the jurisdiction of the circuit court
so as to permit it to amend or modify an
award of maintenance other than an open-end
award would do nothing toward finalizing
distasteful litigation. Certainly and most
assuredly, the purposes sought by KRS
403.110, supra, would be frustrated.
Id. at 627 (emphasis added).
Thus, the question we must consider is whether the
maintenance award in the case at bar was an open-end award.
We
conclude that the plain language in Dame stands for the rule that
if the award is open-ended, it is modifiable; if it is not an
open-end award, it is not modifiable.
There is no dispute that
the trial court ordered Michael to pay Rebecca $1,500 per month
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for ten years, until she remarried, or until either of them died,
whichever occurred first.
Basically, the trial court ordered the
payment of $1,500 per month for ten years and later in the
amended order added the requirements of KRS 403.250(2).
It is
clear to this Court that the trial court ordered a specific
amount of maintenance to be paid for a definite period of time.
This is not an open-end award and thus, as a matter of law, it is
not subject to modification.
See Graham & Keller, Kentucky
Domestic Relations Law § 19.05 (1988).
Since as a matter of law Michael is not entitled to
relief, the trial court properly denied the evidentiary hearing.
Further, any error that the trial court may have committed by not
following the local rule concerning written motions was harmless
since Michael has had an opportunity to fully brief his argument
and the trial court’s ruling was correct as a matter of law.
The order of the Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Stephen C. Todd
Hon. Clint G. Willis
Bowling Green, KY
Hon. Barry Birdwhistell
Elizabethtown, KY
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