HARRY WEISER v. ELIZABETH HAMMOND (FORMERLY WEISER)
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RENDERED:
October 24, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001779-MR
HARRY WEISER
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, JUDGE
ACTION NO. 93-CI-00201
v.
ELIZABETH HAMMOND (FORMERLY WEISER)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Harry Weiser has appealed from an order of the
Scott Circuit Court entered on May 21, 2002, which denied Dr.
Weiser’s motion requesting that his maintenance obligation be
terminated.
Having concluded that the trial court did not abuse
its discretion by denying Dr. Weiser’s motion, we affirm.
Dr. Weiser and Elizabeth Hammond were married on May
18, 1989.
Two children were born of this marriage, Alexandra
Jett Weiser, born on January 29, 1990, and Elizabeth Jade
Weiser, born on September 2, 1993.
Approximately four months
prior to the birth of their second child, the couple separated.
At the time of the separation, Dr. Weiser and Hammond were
living in Connecticut, where Dr. Weiser was in the process of
meeting his educational requirements.1
Shortly thereafter,
Hammond moved back to Georgetown, Kentucky, along with the
couple’s then three-year-old child.2
On December 13, 1993, Dr. Weiser and Hammond signed a
separation agreement that had been prepared by Hammond’s
attorney.3
As part of this separation agreement, Dr. Weiser
agreed to pay $1,500.00 per month in child support for the two
children, and $900.00 per month in spousal maintenance.
The
separation agreement further provided that the $900.00 per month
maintenance payments were to continue until “the death of either
party or the remarriage of [Hammond] or until January 1, 2000,”
when the maintenance payment obligation would then be
“reevaluated” according to the financial circumstances of both
parties.
Because Hammond had a “history of cancer and heart
problems,”4 the separation agreement specifically stated that her
1
Dr. Weiser is a neurosurgeon, who was employed by the United States Army at
the time the trial court’s final order was entered.
2
Hammond is from Georgetown, Kentucky. The couple met at the University of
Kentucky Medical Center where Hammond was employed as a registered nurse and
Dr. Weiser was completing a portion of his residency requirements.
3
Dr. Weiser testified that at the time he signed the separation agreement, he
had dismissed his attorneys and was not represented by counsel.
4
Hammond testified that she was diagnosed with Hodgkin’s disease in 1973.
According to Hammond, her treatments were successful and her doctors informed
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“health and health care needs” were to be taken into account as
a part of this “reevaluation.”5
On October 24, 1994, the separation agreement was
filed with the Scott Circuit Court.6
Hammond has testified that
at the time the separation agreement was filed, she had no
health problems other than the heart murmur which had been
detected shortly after the birth of the couple’s first child.
On October 25, 1994, a decree of dissolution was entered by the
her afterwards that her risk of developing cancer in the future was no
greater than anyone else. Shortly after the birth of the couple’s first
child in 1990, her doctors discovered that Hammond had a heart murmur.
5
The pertinent provisions of the separation agreement regarding spousal
maintenance were as follows:
5. Spousal Maintenance. It is further agreed by and
between the parties hereto that the Respondent shall
pay to the Petitioner as spousal maintenance the sum
of $900.00 per month. Said payments shall be due and
payable $450.00 on the first day of each month and
$450.00 on the 15th day of each month and shall also
be voluntarily assigned from his wages. This sum
shall continue to be due and payable until the death
of either party or the remarriage of the Petitioner
or until January 1, 2000, at which time, maintenance
shall be reevaluated given the financial
circumstances of both parties, including but not
limited to, the health and health care needs of the
Petitioner. In any event, maintenance shall be only
terminable upon the death or remarriage of the
Petitioner and except for those contingencies
Petitioner’s [sic] liability therefor based on the
financial circumstances, shall always stay openended
as provided in the case of James v. James, Ky.App.,
618 S.W.2d 187 (1981) because of her history of
cancer and heart problems.
6
Hammond testified that she wanted to wait before filing the separation
agreement due to the fact that the couple’s second child was still an infant
and Hammond had hoped at the time that she and Dr. Weiser might be able to
reconcile.
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trial court.
The decree incorporated by reference the parties’
separation agreement.
In approximately May 1995, Hammond began experiencing
serious health problems.
On May 5, 1995, after an episode in
which she suffered cardiac arrest, Hammond underwent open heart
surgery.
In June 1995 Hammond had her gallbladder surgically
removed.
In November 1995 Hammond underwent a thoracotomy to
correct complications associated with the lining of her lungs.
Over the next two years, Hammond underwent several medical
procedures designed to correct problems associated with
blockages in her blood vessels.7
As a result of her various
health problems, Hammond was forced to quit working.
She
eventually sought and received disability benefits from the
Social Security Administration.
According to Hammond’s
testimony, she began receiving disability benefits in late 1999,
or early 2000.
Hammond received benefits of $1,046.00 per month
for herself and $522.00 per month for the two children.
On February 22, 2001, Hammond filed a motion seeking
an increase in Dr. Weiser’s maintenance obligation pursuant to
the “reevaluation” provision of the couple’s separation
agreement.
On June 11, 2001, Dr. Weiser moved the trial court
7
According to Hammond’s testimony, she was eventually diagnosed as having
constrictive pericarditis. This disease is marked by the thickening of the
sac surrounding the heart which restricts the ability of the heart to beat.
Problems associated with this disease include congestive heart failure,
shortness of breath, and fatigue.
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to terminate his maintenance obligation.
Dr. Weiser argued that
since Hammond was receiving Social Security disability benefits,
she had “experienced a substantial and continuing change in
circumstances that render[ed] continued maintenance
unconscionable.”
An evidentiary hearing was held before the Domestic
Relations Commissioner and he filed recommended findings of fact
and conclusions of law.
On May 21, 2002, the trial court
entered an order adopting the Commissioner’s recommendations in
full.8
The trial court found that Hammond had failed to meet her
burden to justify an increase in Dr. Weiser’s maintenance
obligation, and that “considering the present financial
resources of the parties . . . it would be manifestly unfair to
terminate [Dr. Weiser’s] maintenance obligation.”
This appeal
followed.9
Dr. Weiser argues that under the terms of the
separation agreement, the trial court erred by not terminating
his obligation to pay Hammond spousal maintenance in the amount
of $900.00 per month.
Dr. Weiser claims that Hammond had
8
In adopting the Commissioner’s recommendations, the trial court corrected
one clerical error that is not relevant to this appeal.
9
On May 31, 2002, Dr. Weiser filed a motion to alter, amend or vacate the
trial court’s order entered on May 21, 2002, pursuant to Kentucky Rules of
Civil Procedure (CR) 59.02. Dr. Weiser argued that the trial court’s
original calculation of child support arrearages was the proper amount and
that the trial court erred in granting Hammond’s motion to correct. The
trial court denied Dr. Weiser’s motion on August 1, 2002. This issue is not
relevant for purposes of this appeal.
-5-
experienced a substantial change in circumstances as to make the
terms of the separation agreement unconscionable10 and that
Hammond could not demonstrate her entitlement to maintenance
pursuant to KRS11 403.200.
Dr. Weiser challenges Hammond’s
entitlement to maintenance on grounds: (1) that she has
sufficient property, in the form of disability benefits, to
provide for her reasonable needs; and (2) that she has failed to
prove that she is unable to support herself through appropriate
employment.12
We begin our analysis by stating the appropriate
standard of review and the relevant statutory standards.
In
Clark v. Clark,13 this Court stated:
10
See Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511, 513 (1974)(holding that “[t]he
provision of KRS 403.250 which imposes the test of modification on a showing
of changed circumstance so substantial and continuing as to make the terms
unconscionable does not introduce a novel standard unknown to the law. . . .
It is evident that the term ‘unconscionable’ as used in KRS 403.250 means
‘manifestly unfair or inequitable’”). We conclude that Dr. Weiser has
unnecessarily argued that the continuation of maintenance is unconscionable.
KRS 403.250 has no applicability to this case because that provision deals
with modification of decrees respecting maintenance where the parties have
not provided for modification in their separation agreement. The parties
agreed that on January 1, 2000, “maintenance shall be reevaluated given the
financial circumstances of both parties[.]” We understand this provision to
require a de novo determination of maintenance pursuant to KRS 403.200.
11
Kentucky Revised Statutes.
12
The separation agreement clearly states that maintenance “shall always stay
openended as provided in the case of James v. James, Ky.App., 618 S.W.2d 187
(1981).” In James, this Court upheld a trial court’s decision to reserve the
issue of a maintenance determination due to the fact that although the wife
was not at the time in need of support, she “had a history of cancer” and
might require support in the future. Id. at 188-89. Dr. Weiser also
challenges the fairness of the perpetual maintenance obligation under James,
but since Hammond was disabled on January 1, 2000, James is not implicated.
13
Ky.App., 782 S.W.2d 56, 60 (1990).
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[M]aintenance determinations are within the
sound discretion of the trial court. In
such matters, unless absolute abuse is
shown, the appellate court must maintain
confidence in the trial court and not
disturb the findings of the trial judge
[citations omitted].
Further, KRS 403.180 provides as follows:
(1)
To promote amicable settlement of
disputes between parties to a
marriage attendant upon their
separation or the dissolution of
their marriage, the parties may
enter into a written separation
agreement containing provisions for
maintenance of either of them,
disposition of any property owned by
either of them, and custody, support
and visitation of their children
[emphasis added].
(2)
In a proceeding for dissolution of
marriage or for legal separation, the
terms of the separation agreement,
except those providing for the custody,
support, and visitation of children,
are binding upon the court unless it
finds, after considering the economic
circumstances of the parties and any
other relevant evidence produced by the
parties, on their own motion or on
request of the court, that the
separation agreement is unconscionable
[emphases added].
(3)
If the court finds the separation
agreement unconscionable, it may
request the parties to submit a revised
separation agreement or may make orders
for the disposition of property,
support, and maintenance.
(4)
If the court finds that the separation
agreement is not unconscionable as to
support, maintenance, and property:
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(a)
Unless the separation agreement
provides to the contrary, its
terms shall be set forth verbatim
or incorporated by reference in
the decree of dissolution or legal
separation and the parties shall
be ordered to perform them; or
(b)
If the separation agreement
provides that its terms shall not
be set forth in the decree, the
decree shall identify the
separation agreement and state
that the court has found the terms
not unconscionable [emphases
added].
(5)
Terms of the agreement set forth in the
decree are enforceable by all remedies
available for enforcement of a
judgment, including contempt, and are
enforceable as contract terms [emphases
added].
(6)
Except for terms concerning the
support, custody, or visitation of
children, the decree may expressly
preclude or limit modification of terms
if the separation agreement so
provides. Otherwise, terms of a
separation agreement are automatically
modified by modification of the decree
[emphasis added].
In pertinent part, the parties’ separation agreement
reads as follows:
This sum shall continue to be due and
payable until the death of either party or
the remarriage of the Petitioner or until
January 1, 2000, at which time, maintenance
shall be reevaluated given the financial
circumstances of both parties, including but
not limited to, the health and health care
needs of the Petitioner.
-8-
We review this language with general contract principles in
mind,14 giving unambiguous terms their plain and ordinary
meaning.15
The separation agreement clearly provides that spousal
maintenance in the sum of $900.00 per month “shall continue to
be due and payable until the death of either party or the
remarriage of the Petitioner or until January 1, 2000, at which
time, maintenance shall be reevaluated given the financial
circumstances of both parties, including but not limited to, the
health and health care needs of the Petitioner.”
Thus, we are
required to consider the maintenance award under the provisions
of KRS 403.200.
Dr. Weiser claims that since Hammond is now receiving
$1,568.00 per month in Social Security benefits, she now has
sufficient property to support herself.
Specifically, Dr.
Weiser argues that when Hammond’s Social Security benefits
(1,568.00 per month) are added to Dr. Weiser’s child support
obligation ($1,500.00 per month), Hammond has a total income of
$3,068.00 per month, which exceeds her claimed monthly expenses
14
See Richey v. Richey, Ky., 389 S.W.2d 914, 917 (1965)(holding that
“‘[q]uestions relating to the construction, operation and effect of
separation agreements between a husband and wife are governed, in general, by
the rules and provisions applicable to the case of other contracts
generally’”)(quoting 17A Am.Jur., § 904, p. 92).
15
Frear v. P.T.A. Industries, Inc., Ky., 103 S.W.3d 99, 106 (2003)(stating
that in the absence of ambiguous provisions, “a court will interpret the
contract’s terms by assigning language its ordinary meaning and without
resort to extrinsic evidence” [footnote omitted]).
-9-
at the time of the couple’s divorce ($2,148.00).
Accordingly,
he argues that Hammond has failed to meet the requirements of
KRS 403.200(1)(a) and (b).
However, Dr. Weiser has conceded that due to Hammond’s
health problems which arose after the separation agreement was
signed, she now incurs, at a minimum, an additional $634.00 per
month in health-related expenses.
While Hammond is receiving
$1,568.00 per month in Social Security benefits that she was not
receiving when the separation agreement was signed, it is
important to note that she only receives these payments because
she was forced to quit working due to her health problems.
Thus, when we consider the fact that Hammond was faced with the
dual difficulties of an increase in her medical expenses and a
decrease in her ability to earn income, we cannot conclude that
the trial court abused its discretion by refusing to terminate
Dr. Weiser’s maintenance obligation.
Dr. Weiser also claims that the trial court erred by
finding that Hammond is disabled under the Social Security
Administration’s standards.
In particular, he argues that
“although [Hammond] testified that she is completely disabled
. . . she has provided no competent evidentiary proof to sustain
her claim.”
The record reveals that Hammond testified that she
continued to work after the separation agreement was signed and
that she tried, unsuccessfully, to resume working after she
-10-
developed health problems.
Hammond had enjoyed steady
employment as a registered nurse from 1979 until the onset of
these serious health problems, when she was no longer able to
work.
Dr. Weiser nonetheless asserts that Hammond was required
to prove both her disability and her receipt of Social Security
benefits with documents from the Social Security Administration,
expert medical testimony, and/or the appropriate medical
records.
However, Dr. Weiser has failed to identify any
evidence in the record rebutting Hammond’s claim that she is
receiving Social Security benefits due to her disability.
Therefore, since Hammond testified that she is unable to work
and that she is receiving Social Security disability benefits,
and since there is no evidence in the record to the contrary, we
cannot conclude that the trial court clearly erred by finding
that Hammond is receiving benefits pursuant to the requirements
of the Social Security Administration due to her disability.16
In summary, we cannot conclude that the trial court
abused its discretion by denying Dr. Weiser’s motion to
terminate maintenance in light of the economic circumstances of
both parties.
Accordingly, the order of the Scott Circuit Court
is affirmed.
16
See CR 52.01 (stating in part that “[f]indings of fact shall not be set
aside [on appeal] unless clearly erroneous. . .”); and Thomas v. Platt, Ky.,
282 S.W.2d 354, 355 (1955)(holding that where there was no conflicting
testimony and the decision of the trial court was supported by substantial
evidence, the findings of fact would not be disturbed on appeal).
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EMBERTON, CHIEF JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KNOPF, JUDGE, CONCURRING:
I agree with much of the
reasoning and the result of the majority opinion.
I write
separately to point out that the trial court did not apply the
proper standard in this case.
As the majority correctly notes,
the parties agreed that after January 1, 2000, “maintenance
shall be reevaluated given the financial circumstances of both
parties[.]”
I entirely agree with the majority that this
provision contemplates a de novo determination of maintenance
pursuant to KRS 403.200, and not a modification of maintenance
pursuant to KRS 403.250.
However, the commissioner and the
trial court clearly applied the latter standard.
Nevertheless, I agree with the majority that the trial
court reached the correct result, albeit for the wrong reason.
KRS 403.200(1) requires a trial court to find that the spouse
seeking maintenance (1) lacks sufficient property, including
marital property apportioned to her, to provide for her
reasonable needs; and (2) is unable to support herself through
appropriate employment.
Factors a trial court may consider in
making this determination include the spouse's financial
resources, the standard of living established during the
marriage, the duration of the marriage, and the spouse’s
physical condition.
KRS 403.200(2)(a-f).
-12-
As the majority correctly notes, there was evidence
supporting the trial court’s finding that Hammond is unable to
work.
Furthermore, Hammond has Social Security disability
income of $1,568.00 per month.
The $1,500.00 in child support
which Dr. Weiser pays cannot be included as income, as those
amounts are for the children’s expenses.
Although the factual
findings concerning Hammond’s expenses could be more detailed,
and the commissioner rejected some of her claimed monthly
expenses as inflated, her total reasonable monthly expenses
clearly exceed $2,468.00 per month.
Because Hammond has not
appealed from the trial court’s order denying her motion for an
increase in support, the court’s order keeping maintenance at
the same amount should be affirmed.
In closing, however, I would also note that this case
represents an unusual situation.
Although the parties’
agreement contemplated a de novo determination of maintenance
after January 1, 2000, it also clearly contemplated that
maintenance would continue after that date, subject to
adjustment based upon the financial circumstances of the
parties.
In essence, Dr. Weiser agreed to pay open-ended
maintenance for as long as Hammond is unable to meet her
reasonable needs.
The duration of the maintenance is more
generous to Hammond than a trial court probably would have
imposed at the time of the 1994 divorce for a five-year
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marriage.
However, Dr. Weiser is bound by the terms of his
negotiated agreement.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Anita M. Britton
Lexington, Kentucky
Ronald D. Bowling
Lexington, Kentucky
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