GEORGE STEPHEN RICHTER v. BETH ANN RICHTER
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RENDERED:
SEPTEMBER 5, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001664-MR
GEORGE STEPHEN RICHTER
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA SANDERSON, JUDGE
ACTION NO. 02-CI-00004
v.
BETH ANN RICHTER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND TACKETT, JUDGES.
GUIDUGLI, JUDGE. George Stephen Richter (hereinafter “George”)
appeals from a decree of dissolution of marriage entered July 3,
2002, by the McCracken Family Court which, in part, ordered him
to pay maintenance in the amount of $600 per month for a period
of 72 months.
We affirm.
George and Beth Ann Richter (hereinafter “Beth Ann”)
were married on February 17, 1973.
The parties separated on
October 1, 2001, and George filed a petition for dissolution of
marriage on January 2, 2002.
Following discovery and a
settlement conference, the matter was set for a final hearing
before the McCracken Family Court on July 1, 2002.
had been resolved prior to the final hearing.
Most issues
However, several
issues as to the parties’ retirement funds, maintenance and
attorney fees still needed to be resolved.
Following the July
1, 2002, hearing, the trial court rendered findings of fact and
conclusions of law and the final decree of dissolution on July
3, 2002.
From those findings of fact and conclusions of law,
George only objected to the amount and duration of the
maintenance order.
In fact, George filed a CR 59.05 motion to
alter or amend the judgment as to the maintenance award.
However, the motion was filed untimely (July 19, 2002) and as
such, the Family Court never addressed it.
This appeal
followed.
On appeal, George contends that the Family Court
abused its discretion in the amount and duration of the
maintenance awarded.
Specifically, he “argues that the court
abused its discretion in three respects:
1.
the maintenance
award is unjust in light of the property disposition made,
though equal on paper; 2. the amount of maintenance was not
supported by the proof; 3.
the award of maintenance for six
years was not supported by the proof.”
Beth Ann, on the other
hand, argues that George’s brief should be stricken for failure
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to comply with CR 76.12, that the issue is not properly preserve
for review since George’s CR 59.05 motion was untimely filed,
and that the Family Court’s order was based on the evidence
presented and completely in line with the requirements of KRS
403.200, and thus, not an abuse of the court’s discretion.
While we agree with Beth Ann that George’s appellant
brief fails to properly comply with CR 76.121 and that he failed
to preserve the issue due to the fact that his CR 59.05 motion
was untimely2, we decide to address the issue presented in that
we believe the appeal lacks merit.
KRS 403.200 sets forth the
conditions under which a court may grant maintenance as follows:
(1)
In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of marriage by a court
which lacked personal jurisdiction over
the absent spouse, the court may grant
a maintenance order for either spouse
only if it finds that the spouse
seeking maintenance:
(a)
Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
1
George’s appellate brief failed to comply with CR
76.12(4)(c)(iv) and (v).
2
Following the final hearing on July 1, 2002, in closing
argument to the court George’s attorney stated, “I do recognize
that he is going to pay her some maintenance per moth, but $800
is grossly unreasonable.” The Family Court ordered only $600
for 72 months and no valid pleading was filed objecting to that
amount. As such, the Family Court was never presented an
opportunity to review the issue.
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(b)
(2)
Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home.
The maintenance
amounts and for
the court deems
considering all
including:
order shall be in such
such periods of time as
just, and after
relevant factors
(a)
The financial resources of the
party seeking maintenance,
including marital property
apportioned to him, and his
ability to meet his needs
independently, including the
extent to which a provision for
support of a child living with the
party includes a sum for that
party as custodian;
(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.
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In reference to the provisions of KRS 403.200, the
Kentucky Supreme Court stated in Perrine v. Christine, Ky., 833
S.W.2d 825 (1992), as follows:
Under this statute, 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,
a reviewing court must find either that the
findings of fact are clearly erroneous or
that the trial court has abused its
discretion.
Id. at 826.
In Weldon v. Weldon, Ky.App., 957 S.W.2d 283
(1997), this Court also stated that:
We are mindful that the amount and
duration of maintenance is within the sound
discretion of the trial court. Russell v.
Russell, Ky.App., 878 S.W.2d 24, 26 (1994).
Furthermore, we are mindful that in matters
of such discretion, “unless absolute abuse
is shown, the appellate court must maintain
confidence in the trial court and not
disturb the findings of the trial judge.”
Clark v. Clark, Ky App., 782 S.W.2d 56, 60
(1990). (Emphasis added.) See also Platt
v. Platt, Ky.App., 728 S.W.2d 542 (1987),
and Moss v. Moss, Ky.App., 639 S.W.2d 370
(1982).
Id. at 285-86.
In the matter before us, the parties stipulated as to
the division of most of the property.
Based upon that agreed
division of assets and the evidence presented at the final
hearing the Family Court made the following determination that
Beth Ann was entitled to periodic maintenance:
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[Beth Ann] requested maintenance. The
Court finds that [Beth Ann] is age 48, the
parties were married 29 years, and [Beth
Ann] is employed as a cashier at Hobby Lobby
at net month wages of $838.00. [Beth Ann]
reported she needed $800.00 per month to
meet her monthly living expenses. The Court
finds that [George] is age 48 and employed
at TVA as a maintenance planner at net
monthly wages of $2,476.00. [George]
reported he had monthly living expenses of
$2,252.00. The Court finds that [Beth Ann]
lacks sufficient property to provide for her
reasonable needs and is unable to support
herself through appropriate employment. It
is hereby ordered that [George] pay to [Beth
Ann] maintenance in the amount of $600.00
per month for a period of 72 months
beginning July 1, 2002 and being due the
first of each following month. Said
maintenance shall terminate at the earliest
of the following dates: [Beth Ann’s]
remarriage, [Beth Ann’s or [George’s] death
or the completion of 72 monthly payments.
As of July 1, 2002, [Beth Ann] shall be
responsible for paying the mortgage owed
against the marital residence.
A review of the findings of fact indicate that Beth
Ann received little income producing income from the divorce,
that she is unable to support herself through appropriate
employment, and that her requested expenses were both reasonable
and necessary.
Further, the findings of the Family Court
clearly indicate that it considered all relevant factors set
forth in KRS 403.200 prior to determining to award maintenance
to Beth Ann and then in the amount and duration of said
maintenance.
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As stated by the Kentucky Supreme Court in Combs v.
Combs, Ky., 787 S.W.2d 260, (1990):
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.
Id. at 262.
The evidence cited by the Family Court in its findings
of fact and conclusions of law supports its maintenance award.
As such, the order of the McCracken Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Vicki R. Holloway
Paducah, KY
Tiffany G. Poindexter
Paducah, KY
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