CHARLES E. PIERCE v. KINDRA JANE PIERCE
Annotate this Case
Download PDF
RENDERED: JULY 25, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-000336-MR
AND
NO. 2001-CA-002702-MR
CHARLES E. PIERCE
v.
APPELLANT
CONSOLIDATED APPEALS FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 00-CI-00107
KINDRA JANE PIERCE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, and KNOPF, Judges.
COMBS, JUDGE.
Charles Pierce appeals from a final decree of the
Kenton Circuit Court that divided the parties’ marital debt and
ordered him to pay child support, maintenance, and the costs of
private school tuition for their daughter, Kierra.
Pierce also
appeals a subsequent order that denied his request to terminate
maintenance.
to both.
The appeals have been consolidated.
We affirm as
Charles and Kindra Pierce were married on November 17,
1989.
They separated in December 1999 and were divorced by a
decree entered on January 19, 2001.
They reached a settlement
with respect to the custody of their only child and the
distribution of their personal property -- both marital and
nonmarital.
There was no real property to divide.
However,
they were unable to agree as to issues of child support, marital
debt, maintenance, or attorney’s fees.
Following a hearing, the trial court found that
Charles earns slightly less than $41,000.00 per year while
Kindra, who does not have a high-school diploma, earns just over
half that amount per year.
The terms of the divorce decree
provided that Charles would pay $94.00 per week to Kindra as
support for their minor daughter, Kierra.
In addition,
beginning with the 2000-2001 school year, Charles was ordered to
pay one-half of Kierra’s monthly parochial school tuition and
other school costs.
Nearly all of the marital debts (totalling
more than $15,000.00) were either assigned to or assumed by
Charles, and he was ordered to pay maintenance to Kindra (on a
sliding scale) for a period of four years.
Finally, Charles was
ordered to pay the sum of $1,000.00 as a partial payment of
Kindra’s attorney’s fees.
Charles appealed the trial court’s
order in February 2001.
-2-
While the appeal was pending, Charles filed bankruptcy
and Kindra remarried.
The marital debts assigned to Charles
pursuant to the decree were discharged, and he filed a motion to
terminate his maintenance obligation.
Kindra filed a motion
requesting an increase in child support, an order directing
Charles to keep current his maintenance obligation, and an award
of her attorney’s fees.
Relying in part upon express provisions
included in the divorce decree, the trial court denied Charles’s
motion to terminate maintenance and again ordered him to pay a
portion of Kindra’s attorney’s fee.
Charles appealed.
Before addressing the merits of Charles’s appeal, we
first note the deficiencies in his brief to this Court.
Deviating from the requirements of Kentucky Rules of Civil
Procedure (CR) 76.12(4)(iii), the appellant’s brief does not set
forth clearly and succinctly “contentions with respect to each
issue of law relied upon for reversal.”
Because the brief does
not clearly specify the claimed errors, Kindra argues that she
“has been placed in a position of responding to almost every
ruling the trial court made and to provide support for affirming
each of those rulings.”
Appellee brief at 7.
Consequently,
Kindra contends that she has incurred a more substantial legal
fee in these proceedings.
The appellant’s brief also fails to comply with the
requirement of CR 76.12(4)(c)(iv) and (v) by omitting any
-3-
reference to the specific places in the trial court’s record
providing evidentiary support for the factual statements and
assignments of error included in the brief.
Even after these
omissions were called to Charles’s attention, the deficiencies
were not corrected or cured by way of a reply brief.
Nevertheless, despite Kindra’s request that we strike the brief
and dismiss the appeal, we have elected to proceed to
consideration of the merits of the appeal.
In his first argument, Charles contends that the trial
court abused its discretion by assigning nearly all of the
marital debt to him alone.
He also argues that the trial court
erred in asking him to pay the amounts of maintenance and child
support at issue as well as in ordering him to pay a portion of
his daughter’s parochial school tuition.
We shall address each
contention in turn.
Charles argues that the court’s decision to assign to
him 97% of the couple’s marital debt is “unfair on its face.”
However, according to Kindra, Charles agreed to assume sole
responsibility for more than one-half of the couple’s marital
debt during the course of the final hearing.
dispute the contention.
Charles does not
This agreement left only a portion of
the marital debt to be assigned by the trial court, and the
great bulk of it was assigned to Charles.
-4-
There is no presumption that marital debts must be
divided equally or in the same proportions.
Neidlinger, Ky., 52 S.W.3d 513 (2001).
Neidlinger v.
On the contrary, debts
incurred during a marriage are traditionally assigned in
consideration of the respective economic circumstances of the
parties and their respective abilities to assume the
indebtedness.
Id.
In this case, Charles has failed to analyze
the relative financial situations of Kindra and himself in order
to demonstrate that the trial court’s allocation of debt was so
unfair as to amount to an abuse of discretion.
From our review
of the limited record, we cannot conclude that the division of
debts in this case was inequitable or otherwise unlawful.
We must grant great deference to the role of the factfinder and to the exercise of the trial court’s considerable
discretion.
This principle is particularly true in cases where
it appears that there are meager assets to divide and that it is
unlikely that there will be enough income following the divorce
to meet the needs of both parties.
In this case, the trial court found specifically that
Kindra lacked sufficient income and property to pay a
significant portion of the parties’ debts or to provide for her
reasonable needs.
Additionally, the evidence presented by
Kindra indicates that Charles voluntarily increased his monthly
expenditures following the parties’ separation.
-5-
While Kindra
took steps to reduce her expenses, she was still unable to meet
her monthly obligations.
Reviewing the evidence as to the
parties’ respective resources and expenses, we find no abuse of
the court’s broad discretion in assigning the marital debts.
KRS1 403.220.
Parenthetically, as Kindra observes, Charles’s
obligation to pay these debts has been discharged through the
bankruptcy proceedings –- a fact which renders this issue
essentially moot.
Charles also contends that the trial court’s order as
to child support and monthly maintenance was excessive.
He
argues that the court erred by failing to take into account the
weight of the debt assigned to him as well as the burden of his
other financial obligations before computing the amount of these
awards.
Charles’s child support obligation was calculated as
set forth by the statutory guidelines.
KRS 403.211(2).
He
never requested that the trial court deviate from the
guidelines.
His own counsel computed the amount of the child
support obligation at an amount higher than that which was
eventually ordered by the trial court.
Charles has failed to
set forth any facts to indicate that the application of the
guidelines was unjust or inappropriate in this case.
1
Kentucky Revised Statutes
-6-
Consequently, the trial court did not err by establishing child
support according to the statutory guidelines.
Charles also contends that the trial court erred by
awarding an excessive amount of maintenance to Kindra.
And once
again, he has failed to cite to any authority or to any facts
from the record to support his contention.
The issue of amount and duration of maintenance is
within the sound discretion of the trial court.
Gentry, Ky., 798 S.W.2d 928 (1990).
Gentry v.
Our review of the record
indicates that the court carefully considered the circumstances
of both parties prior to calculating the amount of the
maintenance award to Kindra.
It found specifically that Kindra
had a limited education and, therefore, a limited ability to
earn money.
She will need a period of some years to
obtain sufficient education and training to
acquire employment skills sufficient to meet
her needs. Additionally, [she] has primary
responsibility for the care of the parties’
child and a child by a prior marriage.
Findings and Conclusions at 4.
We cannot agree that the trial
court abused its discretion by awarding maintenance to Kindra -on a sliding scale -- for a four-year period.
Charles’s first argument concludes with his contention
that he should not have been ordered to contribute to his
daughter’s parochial school tuition since such an order is
-7-
violative of the Constitutions of the United States and of
Kentucky and that it is inconsistent with Kentucky precedent.
Considering the parties’ respective resources and their longstanding agreement to educate their daughter in a Christian
primary school, we cannot conclude that the trial court erred by
ordering Charles to contribute one-half of the cost of his
daughter’s school tuition amounting to $50.00 per month.
His
contention that the order violates either the state or federal
constitution is simply without merit.
In his second argument, Charles contends that the
court erred substantively by refusing to terminate his
maintenance obligation following Kindra’s re-marriage.
He
contends that the court also erred procedurally by failing to
conduct a hearing to establish whether Kindra was still needy
and dependent after her re-marriage.
Maintenance is awarded in a dissolution proceeding
only where a dependent spouse requires the financial support of
a former spouse.
KRS 402.200.
KRS 403.250(2) provides that:
"[u]nless 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."
(Emphasis added.)
In this case the trial court expressly provided in its
decree as follows:
-8-
Pursuant to statute, the court has divided
the parties’ marital assets and liability
prior to considering the award of
maintenance. In making the child support
and maintenance awards above, the Court
specifically intends that the Wife will have
those assets as awarded by the Court. The
Court also specifically intends that the
Wife will be free of those liabilities that
have been allocated to the Husband. The
effect of the allocation of assets and
liabilities is in part to provide for the
Wife’s maintenance and support. If for any
reason the Wife does not receive those
assets awarded to her, or if for any reason
she must pay any of the debts assigned to
the Husband, the Court has determined that
the effect will be to cause the Wife to be
in need of additional child support and/or
maintenance. The issues of child support
and maintenance shall be subject to the
continuing jurisdiction of the court for
purposes of establishment, termination, or
modification in both amount and duration, in
the event that the husband obtains relief in
any bankruptcy court from any obligation,
due directly to the wife, or obtains relief
from any debt which the wife must as a
result pay, or which effectively modifies
the property division between the parties,
thus affecting the need for support by the
wife and the child of the parties.
Decree at 2.
We are persuaded that this language serves to
extend Charles’s maintenance obligation beyond Kindra’s
remarriage since the award was in essence a part of the couple’s
property division.
We believe that the trial court also meant
by this language to retain jurisdiction over the award and the
ability to alter or adapt it depending upon Charles’s actions
and the consequences resulting to Kindra.
-9-
The trial court did
not err by ruling that Kindra’s remarriage had no effect on
Charles’s obligation to pay maintenance for the limited period
of four years.
No evidentiary hearing was needed for the court
to reach this conclusion as to its own reasoning.
The judgment and order of the Kenton Circuit Court are
affirmed.
BARBER, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
KNOPF, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
I agree with the portions of the majority opinion which
uphold the trial court’s assignment of marital debt, and its
initial orders respecting the amount and duration of maintenance
and child-support.
However, I disagree with the majority that
the trial court had the authority to extend maintenance beyond
Kindra’s re-marriage.
As the majority correctly notes, KRS 403.250(2)
provides that the obligation to pay future maintenance
terminates automatically upon the re-marriage of the party
receiving maintenance, unless the decree expressly provides
otherwise.
The majority interprets a clause of the decree as
authorizing the trial court to extend the maintenance award
beyond Kindra’s re-marriage.
interpretation.
I cannot agree with this
The trial court inserted this clause in the
-10-
decree to deal with the possibility that Charles might file for
bankruptcy, but it has no effect upon the application of KRS
403.250(2).
The complex interaction between domestic relations and
bankruptcy law is discussed at length in Chapter 18 of Professor
Graham and Justice Keller’s treatise, 16 Kentucky Practice
Domestic Relations Law (West, 1997 & 2003 Supp.).
In summary, a
bankruptcy court has the authority to discharge debts assigned
as part of a property division in a dissolution action, but it
cannot discharge obligations which are “in the nature of
support”.
Id. at §18.4, p. 69.
In this case, the trial court’s
original assignment of debt was clearly made as part of its
division of property, and the bankruptcy court apparently found
those debts to be dischargeable.
However, the trial court recognized the possibility
that Charles could seek discharge of these debts in bankruptcy,
and that Kindra would then become liable for those debts despite
the express provisions of the decree.
Consequently, the trial
court stated that its maintenance award was based, in part, on
the assignment of the marital debt to Charles.
Accordingly, the
decree provides that the maintenance award can be modified if
Charles’s obligation on those debts is discharged.
Such a reservation of jurisdiction is clearly
appropriate under Low v. Low, Ky., 777 S.W.2d 936 (1989).
-11-
But
in Low v. Low, our Supreme Court was applying the common-law
rule that an award of lump-sum maintenance cannot be modified
merely upon a showing of changed circumstances.
Dame, Ky., 628 S.W.2d 625 (1982).
See Dame v.
The Court held that the
husband’s discharge of his assigned debts was an extraordinary
event which left the maintenance award without “a sufficient
legal predicate”.
Consequently, the Court concluded that
application of the common-law rule would result in manifest
injustice to the wife.
I agree with the majority that, as was the case in Low
v. Low, the bankruptcy court’s discharge of Charles’s obligation
on these debts essentially defeats the maintenance and propertydivision scheme.
Nonetheless, by enacting KRS 403.250(2), the
General Assembly has directed that maintenance awards must
terminate upon the re-marriage of the spouse seeking maintenance
unless the decree or the agreement expressly provides otherwise.
In this case, the language of the decree cannot be read as
broadly as the majority asserts.
Although I concede that this
result works an injustice on Kindra, I am convinced that this
result is compelled by KRS 403.250(2).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles H. Schaffner
Covington, Kentucky
Deanna L. Dennison
Covington, Kentucky
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
