PERLE A. SORAH, JR. v. KARREN L. SORAH1
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RENDERED:
MARCH 30, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002458-MR
PERLE A. SORAH, JR.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER HELTON, JUDGE
ACTION NO. 92-CI-00111
v.
KARREN L. SORAH1
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE: Perle Sorah appeals from an order of the Bell
Circuit Court concerning his maintenance obligation to his exwife, Karren Sorah.
Finding no error, we affirm.
Perle and Karren were married on October 19, 1973, and
they separated on January 3, 1992.
marriage.
No children were born of the
Perle filed a petition for dissolution of marriage on
March 11, 1992.
On November 24, 1993, the trial court entered a
final decree which dissolved the marriage, divided the parties’
property and debts, and directed Perle to pay Karren maintenance
1
The appellee’s name is incorrectly spelled in the notice
of appeal as Karen L. Sorah.
in the sum of $750 a month beginning in December 1993 and
continuing until Karren’s “death, remarriage or 62nd birthday,
whichever occurs first.”
On June 23, 1995, this court rendered
an opinion affirming the maintenance award.
On June 7, 1993, and while the divorce action was still
pending, Perle filed a Chapter 7 bankruptcy petition seeking to
have the maintenance award discharged.
The bankruptcy court
granted Perle’s request to discharge the maintenance award,
holding that it was in the nature of a property division.
The
U.S. District Court for the Eastern District of Kentucky affirmed
the decision of the bankruptcy court, but the Sixth Circuit of
the U.S. Court of Appeals reversed the decision in an opinion
rendered on December 22, 1998.
(6th Cir. 1998).
See Sorah v. Sorah, 163 F.3d 397
The Sixth Circuit held that the award was not
dischargable.
Following the affirmance of the final decree in this
case by this court in September 1995, no action was taken in the
case until Perle filed a request for production of documents in
March 1999.
Following that discovery request, Perle filed a
motion to terminate maintenance retroactively.
In support of the
motion, Perle stated that Karren was now cohabitating with
another person and that the maintenance award was based on error
in the amount of assets and income of the parties and future
assets and income projections as well as “all other changed
circumstances.”
Perle made other discovery requests to which
Karren objected.
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In September 1999, Karren moved the court for a wage
assignment.
In her motion, she alleged that Perle had a
maintenance arrearage in excess of $60,000 and that he was a
full-time salaried employee of Downtown Radiology, Inc.
She
requested in her motion that the court enter a wage assignment
assigning 65% of Perle’s disposable income to her.
Perle
responded with a motion for a protective order and a motion
requesting the court to compel Karren to comply with his
discovery requests.
He also filed a motion requesting the court
to continue the case from the scheduled September 27, 1999,
hearing date until after January 1, 2000, in order that discovery
could be completed.
On September 27, 1999, the motions were heard by the
court on its regular motion day.
The following is the entire
transcript of the proceedings at that hearing:
MR. GERALD L. GREEN:
Judge, I have made a
motion for a wage assignment. He has made
motions to terminate maintenance and etc.
And now, I think, there is a motion that has
been made to put everything off, until the
year 2000, or something.
MR. DAVID O. SMITH:
Well, what I would
like to do is tender an order for our
discovery.
MR. GERALD L. GREENE:
They have requested
discovery of her, Your Honor. And this is a
man, who has asked that alimony be passed for
a number of years now. The Kentucky Court of
Appeals, the Kentucky Supreme Court, and the
Bankruptcy court, all the way up to the Sixth
Circuit, all of that has been now affirmed.
THE COURT:
I will give you time to find
out whether any payments have been paid-in
discovery.
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MR. GERALD L. GREENE:
I think, with the
affidavit that she had also filed, and with
this entire record, we are looking for some
type of order. I would like the Court to
review it. But he has objected to a wage
assignment and, I think, technically the
Court ruled correct. I think the Court,
could order that Mr. Sorah pay 75% of his
payroll to her. The man is definitely in
contempt. I would like the Court to look at
the whole file and enter an appropriate order
on all of those pending motions.
THE COURT:
Well, I have ruled on that
already, until you get through with the
appeal procedure. Is it through?
MR. GERALD L. GREENE:
MR. DAVID O. SMITH:
about it.
THE COURT:
No
Well, after what I know
Okay.
MR. DAVID O. SMITH:
I will prepare an
order. Thank you, Judge.
MR. GERALD L. GREENE:
Honor.
Okay, thank you, Your
As the transcript notes, Perle’s attorney indicated that he would
prepare an order.
However, rather than prepare an order, Perle’s
attorney filed a motion to modify maintenance.
The motion stated
that it was based on (1) motive of the party changing employment;
(2) age and health of the parties; (3) financial situation of
each party; (4) parties’ earning ability; (5) ability of payee
spouse to provide for herself; (6) parties’ expectations; and (7)
payee spouse’s opportunity to live on reduced maintenance amount.
On October 6, 1999, the trial court entered an order
denying Perle’s motion to continue the case and ruling on all
pending motions.
Concerning Perle’s motion to terminate
maintenance retroactively, the court cited Combs v. Combs, Ky.,
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787 S.W.2d 260 (1990), and held that retroactive modifications of
maintenance were improper.
The court also held that Perle’s
request to terminate maintenance based upon error in calculating
the prior assets and income of the parties was an improper
attempt to re-litigate issues that had already been resolved in
the final decree.
The court noted in that connection that the
decree had been affirmed by this court and by the U.S. Court of
Appeals.
Concerning Perle’s motions as they related to Karren
cohabitating with another person, the court noted that Perle’s
motions were not accompanied by affidavits and that Karren’s
objections were verified.
The court thus held that Perle’s
motion as it concerned cohabitation was without merit, and the
court likewise rejected Perle’s motion to force Karren to comply
with his discovery requests.
Additionally, the court held that it would not grant
Perle relief from the maintenance award for the following
reasons:
The petitioner has basically requested
equitable relief from this Court. However,
the petitioner has ignored this Court’s
Orders awarding maintenance and owes
maintenance payments to the respondent since
November, 1993. Although petitioner has been
gainfully employed throughout and has
substantial assets, he has made no effort to
comply with the Court’s previous orders and
is certainly in contempt of this Court’s
Orders. Until such time as petitioner has
satisfied his maintenance arrearage, he is
not entitled to equitable relief by this
Court.
Concerning Karren’s motion for a wage assignment, the court
denied the motion as not being permitted by applicable statutes.
However, the court ordered Perle to pay 65% of his disposable
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earnings each week to Karrren and stated that Perle’s failure to
comply with the order would be considered contempt of court and
would be punished accordingly.
Perle’s appeal to this court
followed.
Perle’s first argument is that the trial court erred in
summarily dismissing his motion to terminate or modify
maintenance on the ground of changed circumstances, including
cohabitation, without compelling Karren to comply with discovery
requests and without holding a hearing.
We first note that the
trial court was entirely correct in denying Perle’s motion to
modify maintenance retroactively.
As the court noted,
retroactive maintenance modification is prohibited.
The Kentucky
Supreme Court held in the Combs case that “maintenance payments
are vested from the entry of a decree and ordinarily can be
modified only upon the entry of a subsequent order of the Court
to operate prospectively, from the date of entry.”
787 S.W. 2d
at 263.
We now turn to whether the court erred in denying
Perle’s motion to modify maintenance, which was filed after the
September 27, 1999, hearing but before the court entered its
order.
KRS2 403.250(1) provides in relevant part that “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.”
We first note
that the statute says that maintenance “may” be modified upon a
showing of changed circumstances and does not state that
2
Kentucky Revised Statutes.
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maintenance “shall” be modified.
Furthermore, the granting or
denying of a motion to modify maintenance “rests in the sound
discretion of the trial court.”
540, 542 (1961).
Gann v Gann, Ky., 347 S.W.2d
“Evidence for the movant must be compelling for
the trial court to grant the relief requested; the policy of the
statute is for relative stability.”
App., 925 S.W.2d 831, 832 (1996).
Barbarine v. Barbarine, Ky.
Further, an appellate court
will not disturb the determination of maintenance modification by
a trial court absent an abuse of discretion. Id.
The trial court in this case based its decision to deny
Perle’s motion to modify maintenance on two primary grounds.
First, the court believed the motion to be without merit on the
issue of cohabitation, and second, the court declined to consider
modifying maintenance because Perle was substantially in arrears
with his maintenance payments despite being gainfully employed
and having substantial assets.
Because the maintenance
modification statute used the word “may” rather than “shall”, we
conclude that it was within the discretion of the trial court to
modify the maintenance award.
The facts of this case lead us to
this conclusion.
Perle made no effort to satisfy his maintenance
obligation despite being employed and having substantial assets.
Furthermore, his maintenance modification motion as it related to
Karren cohabitating with another person, which Karren denied in
her verified response, made only a broad allegation of
cohabitation without containing any of the supporting elements
stated in the Combs case that should be considered in
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cohabitation cases.
See Combs, 787 S.W.2d at 262.
Under these
circumstances, the trial court did not err in summarily denying
Perle’s motion rather than allowing him to proceed on a fishing
expedition with discovery.
Perle’s second argument is that the trial court erred
in ordering him to pay 65% of his disposable income to Karren or
else be held in contempt of court and punished accordingly.
This
portion of the court’s order was obviously entered in response to
Karren’s motion for a wage assignment.
While the trial court
correctly denied the motion for a wage assignment for the
maintenance payments, we fail to see how it erred in directing
Perle to pay 65% of his earnings toward his current maintenance
obligation and the maintenance arrearage.
It is apparently without question that Perle had a very
large maintenance arrearage.
In fact, the court’s order stated
that Perle owed maintenance to Karren from November 1993, the
date of the final decree and maintenance award.
Perle has cited
no authority which would prohibit the court from ordering him to
pay a portion of his disposable earnings toward the arrearage,
and we are unaware of any such authority.
Perle also complains that the court erred in
determining that he would be in contempt of court should he fail
to pay a portion of his disposable earnings to Karren as ordered.
Citing various authorities, he asserts he is entitled to a
hearing regarding his ability to comply with the court’s orders
before being held in contempt.
We agree with Perle that the
court may not hold him in contempt without holding a hearing
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should he fail to make the payments.
Although the language
employed by the court in its order states that Perle will be held
in contempt should he fail to comply, Perle has not yet been held
in contempt.
We caution the court that should Perle fail to
comply with the order regarding his disposable earnings, then he
is entitled to a hearing on the issue of contempt.
Perle’s third and last argument is that the trial
court’s order was prepared by Karren’s counsel and was contrary
to the court’s ruling from the bench.
Since Karren has not
disputed in her brief that her counsel prepared the order signed
by the trial court, we assume Perle’s assertion that Karren’s
counsel prepared the order is correct.
Nevertheless, having
reviewed the transcript of the hearing as set forth above, we do
not accept Perle’s argument that the order conflicts with
statements made by the court from the bench.
We do not read the
comments of the court in the transcript to indicate that it
intended to compel Karren to respond to the discovery requests of
Perle.
Finally, there is no indication in the record that the
findings and conclusions of the trial court set forth in its
order were not the product of the deliberations of the trial
judge, and we find no error in the fact that the order may have
been prepared by Karren’s counsel.
See Bingham v. Bingham, Ky.,
628 S.W.2d 628 (1982).
The order of the Bell Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David O. Smith
Marcia A. Smith
Corbin, Kentucky
Gerald L. Greene
Pineville, Kentucky
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