ETTA MARIE HURLEY PRATER v. EDDIE DEAN HURLEY EDDIE DEAN HURLEY v. ETTA MARIE HURLEY PRATER
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RENDERED:
AUGUST 17, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001835-MR
ETTA MARIE HURLEY PRATER
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 94-CI-01263
v.
EDDIE DEAN HURLEY
AND
APPELLEE
NO. 2000-CA-001912-MR
EDDIE DEAN HURLEY
CROSS-APPELLANT
CROSS-APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 94-CI-01263
v.
ETTA MARIE HURLEY PRATER
CROSS-APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
AS TO CASE NO. 2000-CA-001835-MR AND AFFIRMING AS TO
CASE NO. 2000-CA-001912-MR
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal and cross-appeal from an
order denying appellant/cross-appellee maintenance and awarding a
judgment against appellee/cross-appellant for arrearage.
Upon
reviewing the record and applicable law, we affirm in part,
vacate in part, and remand on appeal and affirm on cross-appeal.
Appellant/cross-appellee, Etta Marie Hurley (now
Prater), and appellee/cross-appellant, Eddie Dean Hurley, were
married in January of 1976.
In September of 1994, Etta filed a
petition for dissolution of marriage.
At the time, Etta was 35
years old, Eddie was 39, and the parties had one child who was
15.
The parties were granted a partial decree of dissolution on
December 15, 1994.
On November 2, 1995, the court entered its
findings of fact, conclusions of law, and supplemental decree.
The decree awarded joint custody of the child, designating Etta
as the custodial parent.
The marital residence in Kentucky,
valued at $40,000, was awarded to Etta, and two lots in Tennessee
upon which there was a mobile home to Eddie, the fair market
value of which the court found to be $35,000.
The court found
that Eddie was not currently employed due to an automobile
accident of April 12, 1995, but that he was a coal miner capable
of making $120 per day if he worked regularly.
The court found
Etta to have a ninth grade education, and having worked only as a
housecleaner.
The court found that Etta was entitled to
maintenance, and ordered Eddie to pay $400.00 per month to Etta
until she remarried or cohabitated.
On November 9, 1995, Eddie moved the circuit court to
alter, amend or vacate its November 2, 1995 decree.
Eddie
contended that the award of maintenance was not supported by the
evidence, in that he had been left without the ability to meet
his own needs while paying maintenance.
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The motion stated that
he was unemployed due to an automobile accident, while Etta was
working.
Eddie additionally raised issues regarding division of
property.
In an order of February 6, 1996, the court found that
Eddie's unemployment due to the automobile accident was a change
in circumstances warranting a decrease in maintenance.
In the
February 6, 1996 order, the court reduced maintenance to $200 per
month retroactive to November 1995, and awarded Etta a $3,400.00
arrearage judgment.
The order required Eddie to report any
change in his disability or his work status.
On August 26, 1996,
the court entered another arrearage judgment against Eddie in the
amount of $4,400.00 representing total arrearage through that
date.
Eddie appealed, and this Court affirmed on the issue of
maintenance, but reversed and remanded to the trial court on
other issues.1
On remand, on November 19, 1998, the court
entered its amended findings of fact, conclusions of law, and
supplemental decree, which awarded the Kentucky residence to
Eddie, and the Tennessee property to Etta.
Etta appealed on the
issue of division of property, and this Court affirmed the
November 19, 1998 order.2
On September 6, 1996, Eddie filed a CR 60.02 motion, in
which he moved the court to set aside the February 6, 1996 and
August 26, 1996 judgments on grounds that he had newly discovered
evidence that Etta had been working during times she had
testified she did not.
On February 15, 1999, the Commissioner
filed his report and recommendations.
1
1996-CA-0082-MR.
2
1998-CA-003053-MR.
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The Commissioner found
that Etta was employed at Hornet's Restaurant possibly for a
short period of time in late 1995 and during parts of 1996 and
1997, and that her W-2's for Hornet's Restaurant showed an income
of $1,910.25 in 1996 and $1,332.50 for 1997.
The Commissioner
further found that Etta was employed by the Pike County School
System, having income for 1996 and 1997 of approximately $400.00.
Exceptions were filed.
Following a hearing on May 19, 2000, on
July 7, 2000, the trial court entered its findings of fact,
conclusions of law, and order, which denied maintenance to Etta
retroactive to September 6, 1996.
The findings of fact stated,
in part:
1. Etta received intermittent income from
the Hornet's Nest Restaurant and the Pike
County School System from 1995 through 1997.
She is currently working full time as a clerk
at a food mart. The parties' child is of age
and emancipated.
2. Eddie did not work after he was injured
in a [sic] automobile wreck until he returned
to work as a coal miner on January 8, 1999.
He earns $13.60 per hour and generally works
40 hours per week. He recovered $8,000.00 in
settlement of an automobile accident claim.
He has made no payment of maintenance since
the last judgment was entered.
3. The Court finds that no maintenance
should have been awarded from November 1995,
because Eddie had been injured in a car wreck
and Etta was employed. However, the Court
will not disturb its earlier judgment for
arrearage, but it will consider Eddie's CR
60.02 motion as a motion to modify temporary
maintenance. No additional maintenance will
be charged to Eddie as of the date of that
motion, September 6, 1996. The February 6,
1996 judgment indicated that Eddie had an
arrearage of $3,400.00 through January 1996.
Through September 1996, he would owe a total
of $5,000.00. [emphasis added].
. . . .
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5. The Petitioner has found appropriate
employment and is able to support herself and
meet her needs. The Petitioner also has
adequate marital property awarded to her to
meet her needs. Therefore, the Court FINDS
that future award of maintenance is not
appropriate.
The court entered judgment against Eddie in the amount of
$5,000.00 representing total arrearage due through September of
1996, and vacated the judgments of February 6, 1996 and
August 26, 1996.
Etta appealed and Eddie cross-appealed from the
July 7, 2000 order.
On appeal, Etta first contends that the trial court
abused its discretion in granting relief to Eddie under CR 60.02
because there was no proof of newly discovered evidence, as the
facts alleged by Eddie in the CR 60.02 motion regarding Etta's
employment were known to him prior to the November, 1995 decree.
Etta does not cite to the record where this argument was
preserved.
CR 76.12(4)(c)(iv) provides that an appellant's brief
shall contain ample supportive references to the record and a
statement showing where in the record the issue was properly
preserved for review and, if so, in what manner.
Nevertheless,
we have reviewed the record, which indicates that this issue was
not raised in or decided by the trial court.
precluded from our review.
Hence, it is
Regional Jail Authority v. Tackett,
Ky., 770 S.W.2d 225, 228 (1989).
Etta next argues that the trial court abused its
discretion in denying her maintenance past September 6, 1996.
Eddie argues otherwise in his cross-appeal.
Under KRS
403.200(1)(a) and (b), a court may award maintenance only if it
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finds that the spouse seeking maintenance lacks sufficient
property, including marital property, to provide for her
reasonable needs and is unable to support herself through
appropriate employment.
KRS 403.200(1) is construed to require a
level of support according to the standard of living established
during the marriage.
Casper v. Casper, Ky., 510 S.W.2d 253, 255
(1974).
In determining the amount and length of maintenance,
the court must consider all relevant factors including those set
out in KRS 403.200(2):
(a) The financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his ability
to meet his needs independently . . .
(b) The time necessary to acquire sufficient
education or training to enable the party
seeking maintenance to find appropriate
employment;
(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 Perrine v. Christine, Ky., 833 S.W.2d 825, 826
(1992), the Kentucky Supreme Court stated:
Under [KRS 403.200], the trial court has dual
responsibilities: one, to make relevant
findings of fact; and two, to exercise its
discretion in making a determination on
maintenance in light of those facts. In
order to reverse the trial court's decision,
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a reviewing court must find either that the
findings of fact are clearly erroneous or
that the trial court has abused its
discretion.
A review of the record reveals that before the divorce,
the couple enjoyed a standard of living based on a coal miner's
wages.
They had two residences and raised a child.
After the
divorce, both were out of work except for the pittance Etta
received for various jobs.
The accident's effect on Eddie's
ability to work was considered and maintenance was temporarily
reduced accordingly, with instructions to Eddie to report to the
court when he returned to work.3
When the court heard Eddie's
September 6, 1996, CR 60.02 motion, both were employed, although
not equally.
Eddie again enjoys a coal miner's wages while Etta
works full-time at a food mart, where she sometimes works double
shifts.
Eddie enjoys the standard of living established during
the marriage while Etta does not.
The trial court was clearly
erroneous in finding that Etta has adequate marital property and
appropriate employment to support herself and meet her needs.
Therefore, we vacate that part of the July 7, 2000, judgment
which terminates future maintenance and remand for further
consideration of the above factors for the amount and duration of
maintenance from September 6, 1996, forward.
Eddie's argument in his cross-appeal that the trial
court's finding that no future maintenance should have been
awarded means that the February, 1996 and August, 1996 judgments
3
That judgment was appealed before, and final after, the CR
60.02 motion was filed and becomes the law of the case, including
the finding that Etta did not have sufficient property to support
herself and was entitled to maintenance. (1996-CA-0082-MR)
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should have been vacated, is also without merit and moot.
Eddie
contends there was no order, only a Commissioner's recommendation
for maintenance, from April to October, 1995.
The February 6,
1996, order states that "Respondent was ordered on a temporary
basis to pay maintenance in the sum of $400.00 per month and has
made no payments since March of 1995."
Appeal No. 1996-CA-0082-
MR is final, and that there was an order for maintenance from
April to October, 1995 became the law of the case.
should have been argued in the earlier appeal.
Any defects
See Appalachian
Stave Co. v. Pickard, 266 Ky. 55, 99 S.W.2d 472 (1936); Stephens
v. Stephens, 300 Ky. 769, 190 S.W.2d 327 (1945).
Eddie's second part to his argument is that Etta was
working and because she lied about it she should forfeit any
future maintenance.
Etta's employment before September 6, 1996,
was a pittance and with the law of the case we are not looking
behind September 6, 1996.
However, the trial court will consider
Etta's employment since September 6, 1996, as a factor, as well
as her wages, in awarding future maintenance.
For the foregoing reasons, the judgment of the Pike
Circuit Court is affirmed in part, vacated in part, and remanded
for further consideration in accordance with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CR0SSAPPELLANT:
Lawrence R. Webster
Pikeville, Kentucky
Kathryn Burke
Pikeville, Kebtucky
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