STEPHEN LEON EDGE v. JUDY ANN EDGE AND HON. ROGER CANTRELL
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RENDERED: JULY 7, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002067-MR
NO. 1999-CA-001707-MR
STEPHEN LEON EDGE
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE KELLEY ASBURY, JUDGE
ACTION NO. 94-CI-00615
JUDY ANN EDGE
AND HON. ROGER CANTRELL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Stephen Leon Edge appeals from two domestic
relations orders regarding his obligation to pay maintenance to
the appellee, Judy Ann Edge.
Having concluded that the trial
court’s findings are not clearly erroneous, we affirm.
The parties were married on April 22, 1988.
On July
12, 1994, Judy filed a petition to dissolve the marriage.
Shortly thereafter, the case was held in abeyance pending the
parties’ attempt to reconcile.
Reconciliation failed, and in
March 1996, the case was redocketed.
In January 1997, an agreed
order was entered wherein the parties agreed that Stephen would
pay Judy temporary maintenance of $800.00 per month.
The matter was referred to a Domestic Relations
Commissioner.
report.
On June 16, 1997, the Commissioner filed his
As to maintenance, the Commissioner’s Report recommended
as follows:
The Commissioner recommends that [Judy]
receive maintenance. For so long as [Judy]
continues to reside in the family residence
on Lexington Avenue, [Stephen] will be paying
the mortgage payment, insurance, and taxes.
He should also pay as maintenance the
utilities incurred by [Judy] at that
residence, to include gas, electric, water,
basic telephone service, and cable
television. At such point as [Judy] vacates
the residence, either on December 31, 1997,
or prior thereto if she chooses, [Stephen]
should begin paying to [Judy] as maintenance
the sum of $2,000.00 per month, to continue
for a total period of twelve months from the
date of the judgment herein. He should
continue to pay thereafter the sum of
$1,000.00 per month for a period of an
additional twelve months, and the sum of
$500.00 per month for a period of twelve
months thereafter, for a total of 36 months
from the date of judgment.
By interlocutory order dated August 6, 1997, the trial court
adopted the Commissioner’s recommendations as they related to
maintenance.1
On December 1, 1997, Judy filed a motion requesting
that she be granted possession of the marital home until the
1
We note that this order did not adjudicate all claims
between the parties, did not contain CR 54.02 finality language,
and was an interlocutory order subject to revision at any time
before entry of a judgment adjudicating all claims between the
parties. CR 54.02(1). We are therefore unpersuaded that, as
argued by Stephen, August 6, 1997, would qualify as the “date of
judgment” referred to in the Commissioner’s report.
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conclusion of the 1997-1998 school year.
to the Commissioner.
The issue was referred
On December 22, 1997, the trial court
entered the final decree.2
3
On December 30, 1997, the
Commissioner filed a report recommending that Judy’s request to
remain in the marital home be denied.
However, Judy did not
vacate the marital residence by December 31, and filed exceptions
to the Commissioner’s report.
On January 26, 1998, the trial
court entered an order granting Judy thirty days to vacate the
marital home from such time as she received certain funds from
the division of the marital estate.
On January 6, 1998, Judy filed a motion to hold Stephen
in contempt for, among other reasons, failure to begin paying
maintenance commencing January 1.
Also on January 6, Stephen
filed a motion requesting that Judy be required to vacate the
marital residence.
motions.
On January 23, a hearing was held on the
In regard to the maintenance issue, Stephen argued that
his $2,000.00 per month maintenance obligation should not begin
until Judy vacated the residence.
The trial court rejected this
and indicated that the obligation was to commence January 1.
2
While the December 22, 1997, order further reserved
child support issues, the order incorporated the trial court’s
August 6, 1997, order accepting the Commissioner’s maintenance
recommendation, and, moreover, it contained CR 54.02 finality
language. Thus, the August 6, 1997, order was deemed to be readjudicated as of December 22, 1997. CR 54.02(2). To the extent
the “date of judgment” referred to in the Commissioner’s report
is relevant, the applicable judgment date is December 22, 1997,
not August 6, 1997, as contended by Stephen.
3
On January 16, 1998, Judy filed her notice of appeal
of the trial court’s December 22, 1997, order. That case was
docketed in this Court as Case No. 1998-CA-000156. On June 10,
1999, this Court entered an order dismissing that appeal for
failure to file a brief.
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However, Stephen did not start paying maintenance, and on March
3, 1998, Judy filed a motion to hold him in contempt of court for
failing to pay maintenance of $2,000.00 per month effective
January 1.
The motion referred to the trial court’s ruling at
the January 23 hearing as confirmation that Stephen’s maintenance
obligation was to commence on January 1.
In his response,
Stephen contended that he was not obliged to begin paying
$2,000.00 per month maintenance until Judy vacated the marital
home.
On March 13, 1998, Judy vacated the home.
Stephen paid
Judy $1,000.00 in maintenance for the second half of March, and
commencing April 1 Stephen began paying Judy $2,000.00 per month
in maintenance.
On June 2, Judy filed a motion requesting that
the trial court rule on Stephen’s maintenance obligation for the
period January 1 through March 13, 1998.
July 17, 1998.
The motion was heard on
At the hearing, the trial court ruled that
Stephen was required to pay Judy $5,000.00 in maintenance for the
period January 1 through March 13, 1998.
In addition, the trial
court clarified that the $2,000.00 maintenance phase was to run
for twelve months, or from January 1, 1998, until December 31,
1998.
On July 22, 1998 the trial court entered an order
wherein it ordered that “[t]he [$5,000.00] maintenance which
[Stephen] owes to [Judy] shall be paid within ten days.”
On July
31, 1998, Stephen filed a motion to alter, amend or vacate
requesting that “so much of the Order as directs that he is to
pay $5,000.00 in maintenance be set aside.”
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The motion again
argued that Stephen was never under any obligation to pay
$2,000.00 in maintenance to Judy until she moved from the marital
residence.
On August 7, 1998, the trial court denied the motion
to alter, amend or vacate.
Appeal No. 1998-CA-002067 followed.
On August 21, 1998, Stephen’s motion to supersede the
judgment was denied, but he did not pay the $5,000.00 arrearage.
Also, based upon the theory that commencing with his August 1998
payment, his maintenance obligation was reduced to $1,000.00 per
month, he only paid $1,000.00 as his August maintenance.
On
August 18, 1998, Judy filed a motion to hold Stephen in contempt
of court for failing to make these payments.
was filed on September 29, 1998.
A similar motion
These matters were referred to
the Commissioner.
On May 20, 1999, the Commissioner filed his report.
relevant part, the report stated as follows:
Concerning the maintenance issue, the
Commissioner realizes that the Court has
previously ruled that the $2,000 maintenance
was to commence January 1, 1998 and continue
for 12 months. The Commissioner understands
that has been appealed.
The Commissioner in his recommendation
of June 11, 1997, intended for [Stephen] to
pay mortgage, insurance, taxes, and utilities
on the house as maintenance since [Judy] was
living there.
It was also the Commissioner’s intent
that when [Judy] vacated the premises on
December 31, 1997 or prior thereto if she
chose to do so, then [Stephen] would pay
$2,000 per month maintenance for 12 months,
then $1,000 for 12 months, then $500 per
month for 12 months.
All would have gone smoothly if [Judy]
had moved out on December 31, 1997. For
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In
whatever reason, she did not move out until
March 15, 1998.
It is the Commissioner’s opinion that
[Stephen] should not have been liable for the
$2,000 per month maintenance until she moved
out and only until December 31, 1998.
Following this reasoning [Stephen] would
owe $1,000 for March 1998 and $2,000 per
month for April through December, [sic] 1998.
[Stephen] would owe $1,000 per month for
January through December 1999 and $500 per
month for January through December 2000.
Commissioner is aware of [Stephen’s
counsel’s] argument that the $2,000 should
only be paid for 12 months from the date of
judgment of August 1997. But, that language
is in conflict with and makes no sense when
coupled with language that [Judy] had until
December 31, 1997 to move and then would
receive maintenance for 36 months.
Stephen filed exceptions to the report insofar as it
recommended that he was required to pay maintenance of $2,000.00
per month through December 31, 1998.
On June 14, 1999, the trial
court entered an order adopting the Commissioner’s report with
the exception that the trial court reiterated its ruling that
Stephen owed the $5,000.00 arrearage for maintenance from January
1, 1998, to March 13, 1998.
Stephen’s motion to alter, amend or
vacate that order was also denied.
Appeal No. 1999-CA-001707
followed.
Stephen argues that “[t]he trial court erred in
modifying an award of lump sum maintenance without hearing and
presentation of evidence.”
In summary, Stephen argues that the
trial court’s August 1997 order awarded maintenance at the rate
of $2,000.00 per month commencing whenever Judy moved out of the
marital residence until one year from the date of the entry of
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the judgment awarding maintenance, then at the rate of $1,000.00
per month for an additional twelve months, and then at the rate
of $500.00 per month for an additional twelve months.
Stephen
argues that the maintenance award was a “lump sum” maintenance
award subject to the modification restrictions of Dame v. Dame.4
Judy, on the other hand, argues that there was no modification at
all, and that the trial court’s subsequent orders concerning
maintenance were merely clarifications of previous orders, and
were consistent with, its August 1997 maintenance award.5
The following sentence from the June 1997
Commissioner’s report, which attempted to set forth Stephen’s
maintenance obligation, has led to the disagreement:
At such point as [Judy] vacates the
residence, either on December 31, 1997, or
prior thereto if she chooses, [Stephen]
should begin paying to [Judy] as maintenance
the sum of $2,000.00 per month, to continue
for a total period of twelve months from the
date of the judgment herein.
Because Judy moved out after December 31, 1997, and that
contingency was not specifically addressed, there is an
ambiguity.
Moreover, depending upon the “date of judgment,”
the
wording “total period of twelve months” may conflict with the
4
Ky., 628 S.W.2d 625 (1982).
5
We note an inconsistency in Stephen’s Dame argument.
On the one hand Stephen argues that the trial court’s maintenance
award is a fixed lump sum maintenance award subject to the
modification restrictions of Dame. However, at the same time,
Stephen argues that the amount of the award could vary depending
upon when Judy moved out of the residence and depending upon the
“date of the judgment.” In summary, if Stephen’s interpretation
of the maintenance award is accepted, the maintenance award is
not a fixed lump sum maintenance award subject to the
modification limitations of Dame.
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wording “twelve months from the date of the judgment.”
Since
Stephen interprets the “date of judgment” to be August 6, 1997,
there is a conflict under his interpretation.
The trial court has interpreted its previous order, and
this interpretation is, for purposes of our review, a finding of
fact as to what the trial court originally intended the order to
mean.
We may not reverse a trial court’s finding of fact unless
that finding is clearly erroneous.6
In this case, in particular,
deference to the trial court’s finding on the issue is
appropriate because the trial court is interpreting and
explaining its own ambiguous statements in originally ordering
Stephen to pay maintenance to Judy.
Under the trial court’s
interpretation of the order, maintenance was to begin no later
than January 1, 1998, and was to be at the rate of $2,000.00 for
twelve months, then $1,000.00 for twelve months, and then $500.00
for twelve months for a total of $42,000.00 over 36 months.
We
cannot say that this interpretation is clearly erroneous.
Stephen was to begin paying maintenance “[a]t such
point as [Judy] vacates the residence, either on December 31,
1997, or prior thereto if she chooses” [emphasis added].
This
wording did not contemplate that Judy would remain in the
residence beyond December 31, 1997, and there was no explicit
provision as to what would occur if she moved out later than that
date.
The
interpretation argued by Stephen completely ignores
this problem.
Given the “either/or” construction of the phrase,
i.e., Stephen’s obligation begins either on December 31, or it
6
CR 52.01.
-8-
begins prior thereto, the trial court was not clearly erroneous
in interpreting its order to require Stephen’s maintenance
obligation to begin on January 1.
The second possible ambiguity concerns the date the
$2,000.00 phase of the maintenance obligation ends.
According to
the sentence in question in the original Commissioner’s report,
the obligation was “to continue for a total period of twelve
months from the date of the judgment herein.”
the “date of judgment” as August 6, 1997.
Stephen interprets
However, since the
August 6, 1997, order was interlocutory, it is deemed to have
been re-adjudicated as final on December 22, 1997, the date of
the final decree.7
That being the case, the ambiguity is
resolved, since “twelve months from the date of the judgment”
coincides with “a total of twelve months.”89
For the foregoing reasons, the orders appealed from in
this matter are affirmed, whereby Stephen’s maintenance
obligation to Judy is a total of $42,000.00.
ALL CONCUR.
7
See Footnotes 1 and 2.
8
With the exception of a nominal 9 day deviation.
9
CR 54.02.
In addition to the above, the Commissioner, who
drafted the sentence, stated that he intended the maintenance
phase of $2,000 per month to run until December 31, 1998. The
trial court interpreted the Commissioner’s recommendation
likewise, and this was a rational interpretation of the wording.
Hence, even if August 6, 1997, had been the “date of judgment,”
we cannot say that the trial court was clearly erroneous in
concluding that the $2,000.00 phase was to continue until
December 31, 1998, rather than until August 6, 1998.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Gordon J. Dill
Ashland, KY
Roger R. Cantrell
Greenup, KY
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