DAVID L. STEELE v. PAMELA W. STEELE
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002389-MR
DAVID L. STEELE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 87-FC-005441
PAMELA W. STEELE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
David L. Steele (David) appeals from the
opinion and order entered by the Jefferson Family Court on
May 15, 1999, which ordered him to pay maintenance to his former
spouse, Pamela W. Steele (Pamela).
We affirm.
The parties hereto were married on August 17, 1980.
Three children were born during the marriage; namely, Kelly Ray
Steele, born November 20, 1981, Sarah Ann Steele, born October 4,
1987, and Andrew David Steele, born January 15, 1997.
The
parties separated on July 21, 1997, and Pamela filed her verified
petition for dissolution of marriage on July 24, 1997.
During
the pendency of the action, David was ordered to pay child
support in the amount of $1,384.17 per month, but Pamela’s motion
for temporary maintenance had been denied by the court.
A decree
of dissolution of marriage was entered on March 3, 1998, said
decree reserving all issues as to property and debt division,
custody and visitation, maintenance, and attorney fees, etc., to
be determined following a trial.
April 28, 1998.
That hearing took place on
Based upon the testimony and evidence presented
that day, as well as pre-trial compliance memoranda filed by the
parties, the Jefferson Family Court entered its findings of fact,
conclusions of law and amended decree on May 18, 1998.
In that
maintenance is the only issue on appeal to this Court, we will
limit our review of the family court’s order to that issue.
In the May 18, 1998 amended decree, the family court
found that Pamela had been employed part-time as a nutrition
consultant for ten years earning approximately $1,431.04 net per
month.
This was based upon wages of $16.00 per hour for a 26
hour work week.
David was found to be employed as a pharmacist
earning approximately $4,316.67 net per month.
Pamela was to
receive $49,224.19 as her share in the equity from the marital
residence and the remaining marital was to be divided equally.
Qualified Domestic Relations Orders (QDRO) were to be entered
dividing the retirement and pension funds of the parties.
As to
the issue of maintenance, the family court made the following
findings:
10. That the Petitioner lacks sufficient
property to provide for her reasonable needs
and is unable to support herself through
appropriate employment at this time.
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Pursuant to KRS 403.200, the Court may
grant maintenance to either spouse if it
first finds that the spouse seeking
maintenance:
a. lacks sufficient property, including
property apportioned to him, to provide for
his reasonable needs; and
b. is unable to support himself through
appropriate employment...
If this Court makes the above two
findings, then the statute goes on to state a
number of factors that the Court must
consider in determining the amount and
duration of maintenance. Among other things,
these factors include the financial resources
of both parties, the standard of living
established during the marriage, the duration
of the marriage, the age, physical and
emotional condition of the spouses and a
requesting spouse’s need for education and
training to become self-sufficient.
Case law established that the above
statutory framework sets out a relative
standard. Casper vs, Casper, Ky., 510 SW 2d
253 (1974).
Citing the Casper decision, the court,
in Combs vs. Combs, Ky. App., 662 SW 2d 679
(1981), at Page 680, states:
There mere fact that the wife can
eke out a living is not sufficient
to deny maintenance...the duration
of maintenance must have a direct
relationship to two factors: (1)
the period over which the needs
exist, and (2) the ability to pay.
The Court is directed to award
maintenance in amounts an (sic) for periods
of time as the Court deems just. In the case
of Frost vs. Frost, Ky. App., 581 SW 2d 582
(1979), the court states at page 585:
In instances where one party is
not, at the time of the
dissolution, self-supporting, it is
proper for the Trial Court to take
evidence as to that person’s
prospects for becoming economically
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independent, and also as to how
long it is likely to be before such
prospects are realized. Where it
appears that a maintenance award
should be of limited duration, it
would be much better policy for the
Trial Court to treat any fixed time
span arrived at as a mere
presumption of a reasonable period
for the achievement of economic
independence, which may be overcome
upon a showing by either party.
Nothing we have said shall be
construed as removing from the
party receiving maintenance the
duty of making every effort to
become self-supporting.
11. That the Respondent has the financial
ability to provide maintenance to the
Petitioner. The Court has previously found
that the Petitioner’s gross income is
approximately $1,431.04 for what the court
has deemed to be a 26 hour week. When the
child support received from the Respondent in
the amount of $1,384.17 is added to this
figure the Petition is left with disposable
income in the amount of $2,815.21. The court
has found that the Respondent has an
approximate gross (sic - actually net income)
income of $4,316.67 and when the child
support obligation is deducted from this
figure it leaves him a disposable income of
$2,932.50 and therefore, the Court Orders
that he pay the Petitioner maintenance in the
amount of $100.00 until the child support
obligation of the 1st child ceases. When this
obligation ceases, the Respondent shall pay
$500.00 representing maintenance until the
child support obligation on the youngest
child is extinguished at which time the
Respondent’s maintenance obligation shall
also cease. Likewise, the Petitioner’s
remarriage or Petitioner’s death, shall also
extinguish the Respondent’s Maintenance
obligation.
(Family Court Order entered May 18, 198, pages 4-7).
David filed timely motions pursuant to CR 52.02, CR
52.04 and CR 59.05, requesting additional and/or specific
findings of fact and to alter, amend or vacate the May 18, 1998,
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decree regarding the division of marital property, the amount and
duration of the maintenance award, the calculation of child
support, and restoration of non-marital property.
The family
court thereafter entered its opinion and order on June 8, 1999,
denying David’s motions on these issues.
Specifically, as it relates to the maintenance award,
Judge James M. Green held:
Pertaining to the issue of maintenance,
the Court found that Ms. Steele met the
statutory prerequisites for an award of
maintenance, and Mr. Steele had the financial
ability to pay said maintenance. The Court
awarded maintenance of $100.00 per month
until the child support obligation of the
first child ceases. At that time, the
maintenance will increase to $500 per month
until the child support obligation for the
youngest child is extinguished at which time
the maintenance obligation shall also cease.
In Perrine v. Christine, 833 S.W.2d 825
(1992), it is stated quite clearly that “the
determination of questions regarding
maintenance is a matter which has
traditionally been delegated to the sound and
broad discretion of the trial court.”
Contrary to Mr. Steele’s allegation that
maintenance cannot be modified, KRS 403.250
describes the process whereby maintenance is
modifiable. Further, Mr. Steele can rest
assured that if cohabitation becomes a factor
he has the ability to move for modification
of maintenance. According to Combs v. Combs,
787 S.W.2d (1990), maintenance can be
modified based on this factor. Combs states
“we believe that a maintenance recipient’s
cohabitation can render continued maintenance
‘unconscionable’ if the nature of the
cohabitation constitutes a new ‘financial
resource’ as contemplated by KRS
403.200(2)(a). Thus, Mr. Steele has recourse
should the terms of the maintenance
obligation need modification.
(Family Court Order entered June 8, 1999, pages 3-4).
appeal followed.
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This
As previously stated, the only issue raised on appeal
by David is the amount and duration of maintenance ordered by the
family court.
David contends that the family court’s order is
“unsupported by substantial evidence” and that it “clearly abused
its discretion in awarding maintenance....”
Though David
concedes that the amount and duration of maintenance is within
the sound discretion of the trial court (citing Russell v.
Russell, Ky. App., 878 S.W.2d 24, 26 (1994)), he argues that the
family court abused that discretion by failing to follow the
mandate of KRS 403.200(2).
We disagree.
In the recent case of Leviridge v. Leviridge, Ky., 997
S.W.2d 1 (1999), our Supreme Court upheld a maintenance award for
12 years following a marriage of a nineteen year duration.
The
Court, again, emphasized that “[t]he decision to grant or deny a
maintenance award lies within a trial court’s sound discretion as
it applies the governing factors of KRS 403.200 to the parties’
circumstances upon dissolution of marriage.”
S.W.2d at 2.
Leviridge, 997
In the case before us, the trial court heard
testimony from the parties and several other witnesses concerning
the financial resources accumulated during the marriage and the
parties’ economic and employment status and opportunities.
Based
upon the information presented, the family court judge entered
his findings of fact, conclusions of law and judgment relative to
the dissolution of marriage, including the award of maintenance.
In the May 18, 1998, order, the family court
specifically set forth the factors the court must consider
pursuant to KRS 403.200.
Although the court did not list each
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factor individually and then make detailed findings as to each
factor, it is clear that the court considered them as required by
statutory and case law.
We do not believe, nor has David cited
us to any authority which would support such a position that the
trial court must make specific findings as to each statutory
factor.
“In order to reverse the trial court’s decision
[regarding maintenance], a reviewing court must find either that
the findings of fact are clearly erroneous or that the trial
court has abused its discretion.”
S.W.2d 825, 826 (1992).
Perrine v. Christine, Ky., 833
Considering the non-marital and marital
property assigned to Pamela, her monthly income, and the standard
of living established by the parties during their marriage, we
find no abuse of discretion by the trial court in awarding
maintenance in this matter.
“As an appellate court, neither the
Court of Appeals nor this Court is authorized to substitute its
own judgment for that of the trial court on the weight of the
evidence, where the trial court’s decision is supported by
substantial evidence.
(1990).
Combs v. Combs, Ky., 787 S.W.2d 260, 262
Despite David’s arguments to the contrary, the evidence
cited by the family court in its May 18, 1998, findings of fact
and conclusions of law supports its maintenance award.
The opinion and order of the Jefferson Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Victor E. Tackett, Jr.
Louisville, KY
Grant M. Helman
Louisville, KY
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