MONETTE WHEELER v. WILLIAM G. WHEELER
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RENDERED:
APRIL 2, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002440-MR
AND
NO. 2002-CA-002496-MR
MONETTE WHEELER
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 78-CI-02751
WILLIAM G. WHEELER
APPELLEE/CROSS-APPELLANT
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
JOHNSON, JUDGE:
Monette Wheeler has appealed from an order of
the Fayette Circuit Court entered on October 30, 2002, which
reduced her former husband William Wheeler’s spousal maintenance
obligation from $2,000.00 per month to $1,000.00 per month.
William has cross-appealed from that same order, arguing that
the trial court should have terminated his maintenance
obligation altogether.
Having concluded that the trial court
erred by limiting its inquiry to the consideration of only those
changes that had occurred since 1992 when the trial court denied
Monette’s first motion to increase maintenance, we vacate and
remand for further proceedings.
William and Monette were married on August 29, 1952,
when they were both approximately 18-years-old.
During the
early years of their marriage, Monette completed training at a
business school and obtained a secretarial job, while William
completed both his undergraduate collegiate studies and medical
school.1
After the birth of the couple’s first child in May
1960, William and Monette agreed that Monette would quit her job
and care for the children at home.
Thereafter, the couple had
three more children and Monette did not work outside the home
for the remaining years of the marriage.
On April 2, 1979, the Fayette Circuit Court entered a
decree dissolving the parties’ marriage which incorporated by
reference the parties’ property settlement agreement.
The
property settlement agreement provided, inter alia, that William
would pay Monette $2,000.00 per month in spousal maintenance
“until she dies or remarries.”
The parties further agreed that
the maintenance obligation would be “subject to the further
orders of the Fayette Circuit Court in the event that either of
the parties has a change of circumstances.”
1
William is an orthopedic surgeon.
-2-
Approximately 13 years later, on November 13, 1992,
Monette filed a motion seeking to increase her maintenance to
$5,700.00 per month, on the grounds that there had been a
“change of circumstances” since the couple’s divorce in 1979.
Specifically, Monette noted that her annual gross income had
decreased from $33,000.00 in 1979, to $28,403.37 in 1991, and
that William’s annual gross income had increased from
$112,812.00 in 1979, to $425,329.00 in 1991.
On December 23,
1992, the trial court entered an order denying Monette’s motion
to increase maintenance.
Following the denial of her motion to increase
maintenance, Monette appealed to this Court.
In an unpublished
decision rendered on March 31, 1995,2 this Court affirmed the
trial court’s denial of Monette’s motion to increase
maintenance.
Specifically, this Court stated:
The terms of the [property settlement]
agreement were general; the agreement
provided that the maintenance sum “. . .
shall be subject to the further orders of
the Fayette Circuit Court in the event that
either of the parties has a change in
circumstances.” The agreement did not
establish any standard for modification.
Since the property settlement agreement did not
provide a specific standard for the trial court to follow in
determining whether there had been a “change of circumstances,”
2
1993-CA-000184-MR.
-3-
this Court stated that the unconscionability standard found
under KRS3 403.250(1) controlled whether either party would be
entitled to a maintenance modification.
Finally, this Court
held that the trial court had not abused its discretion by
finding that Monette had failed to show a “change in
circumstances” which would render the $2,000.00 per month
maintenance payment “unconscionable.”
On March 12, 2002, William filed a motion seeking to
terminate, or in the alternative, reduce his maintenance
obligation.
In support of his argument that a “change of
circumstances” had occurred rendering his $2,000.00 per month
maintenance obligation unconscionable, William noted that
Monette was receiving Social Security benefits in the amount of
$544.00 per month.
William also argued that Monette’s
relationship with Charles C. Mihalek, a man she began dating
after the couple’s divorce in 1979, was “substantial in its
nature, and has progressed to the point that they have been
living together in Florida.”
In her response, Monette not only
objected to William’s motion to terminate or reduce maintenance,
but she moved the trial court to increase maintenance to
$3,000.00 per month.
On July 31, 2002, a hearing was held before the trial
court on the parties’ cross-motions to modify maintenance.
3
Kentucky Revised Statutes.
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On
September 3, 2002, after considering the evidence offered by
both parties, the trial court entered findings of fact and
conclusions of law.
Among other things, the trial court found
that Monette’s receipt of $544.00 per month in Social Security
benefits was attributable to her marriage to William.
Thus, the
trial court ruled that William was entitled to a $544.00 per
month offset in his maintenance obligation, due to Monette’s
receipt of Social Security benefits.
In addition, the trial court found that Monette had
“an intense social relationship” with Mihalek, and that Mihalek
helped her significantly with various expenses.
Hence, the
trial court ruled that William was entitled to an additional
offset of $456.00 per month in his maintenance obligation due to
Mihalek’s “contributions” toward Monette’s expenses.
On October 30, 2002, the trial court entered an order
granting William’s motion to reduce maintenance, and denying
Monette’s motion to increase maintenance.
The trial court
ordered that William’s maintenance obligation be reduced from
$2,000.00 per month to $1,000.00 per month.
Monette’s appeal
and William’s cross-appeal from that order followed.4
We first address Monette’s argument that in
determining whether William had shown a “substantial and
4
Monette has not appealed from that portion of the trial court’s order
denying her motion to increase maintenance.
-5-
continuing” change so as to render the maintenance obligation
unconscionable, the trial court erred by limiting its inquiry to
those changes that had occurred since 1992, when the trial court
considered Monette’s first motion to increase maintenance.
In
response, William claims that the doctrine of res judicata
precluded the trial court from considering events prior to the
trial court’s denial of Monette’s motion to increase spousal
maintenance in 1992.
This issue appears to be one of first impression in
Kentucky.
As a general rule, res judicata precludes the
relitigation of issues that have been previously decided between
two or more parties.5
In the context of motions to modify
spousal maintenance, there is considerable support for the
proposition that “[w]here the court has decided one petition for
modification, the order entered in that proceeding is res
judicata, and a second petition for modification thus cannot be
entertained unless it can be shown that there has been a
substantial change of circumstances since the earlier decision
was made.”6
In Micheu v. Micheu,7 the Louisiana Court of Appeals
framed the issue as follows:
5
Napier v. Jones By and Through Reynolds, Ky.App., 925 S.W.2d 193, 195
(1996).
6
24A Am.Jur.2d Divorce and Separation § 822 (2003).
7
440 So.2d 240, 242 (La.Ct.App. 1983).
-6-
The determination, then, to be made is-has a substantial change of circumstances
occurred since the award of alimony, or
since the last change in that award? This
analysis is to be made each time either
spouse files a rule to increase, decrease,
or terminate alimony previously granted.8
However, unlike Micheu and the other cases cited in
support of this rule, in the case sub judice there has been no
prior modification of the maintenance obligation.
While the
trial court did consider Monette’s motion to increase
maintenance in 1992, it found that Monette had failed to
demonstrate a sufficient change in circumstances to warrant an
increase in maintenance.
Comment c to Section 13 of the Restatement (Second) of
Judgments discusses the doctrine of res judicata as it relates
to judgments which are subject to subsequent modification:
A judgment concluding an action is not
deprived of finality for purposes of res
judicata by reason of the fact that it
grants or denies continuing relief, that is,
requires the defendant, or holds that the
defendant may not be required, to perform
acts over a period of time. Judgments of
8
See also Hosford v. Hosford, 362 So.2d 973, 974 (Fl.Ct.App. 1978)(holding
that “[o]nce the court has found sufficient change in circumstances to
require modification and thereupon enters an order, the facts and
circumstances supporting that modification may not be revisited by the court
as a basis for further modification”); Marriott v. Marriott, 106 N.E.2d 876,
878 (Ill.Ct.App. 1952)(stating that a previous order granting a modification
of maintenance was res judicata, and that the circumstances which justified
the original modification could not be used to support a subsequent motion to
modify); and Farnsworth v. Farnsworth, 553 S.W.2d 485, 487 (Mo.Ct.App.
1977)(holding that “the date of the change of circumstances to be used would
be the last prior modification rather than the circumstances existing on the
date of the original decree”).
-7-
these types are rendered typically in
actions for injunctions, specific
performance, alimony, separate maintenance,
and child support and custody.
The res judicata consequences of such
judgments follow normal lines while
circumstances remain constant, but those
consequences may be affected when a material
change of the circumstances occurs after the
judgment. Thus if the judgment denied on
the merits the continuing relief sought, but
there has been a later material change of
conditions, a new claim may arise upon the
later facts (to be considered sometimes in
combination with the old), and that claim
will be held not barred by the previous
judgment [emphasis added].9
Therefore, since no modification was made when the
trial court considered Monette’s first motion to increase
maintenance in 1992, the doctrine of res judicata did not
preclude the trial court from considering all of the changes
which may have occurred since the original spousal maintenance
obligation was established in 1979.
Accordingly, the trial
court erred by limiting its inquiry to the consideration of only
those changes that had occurred since 1992.
We next turn to Monette’s argument that the trial
court erred by reducing William’s maintenance obligation by
$544.00 per month due to her receipt of Social Security
9
Restatement (Second) of Judgments § 13, comment c (1982). See also In re
Marriage of Pedersen, 605 N.E.2d 629, 633 (Ill.Ct.App. 1992)(noting that
while the husband could not rely on those circumstances which justified a
prior modification of maintenance, “[a] different result might obtain if the
[previous motion to modify] had not actually resulted in a modification”).
-8-
benefits.
Monette relies on Williams v. Williams,10 where our
Supreme Court held that a pre-1972 property settlement
agreement, which made no provision for an adjustment of
maintenance due to the subsequent receipt of Social Security
benefits, was not subject to modification if the agreement was
deemed to be a final and complete settlement of the parties’
property rights.11
Monette notes that the property settlement agreement
in the case at bar does not specifically provide for an
adjustment of maintenance in the event either spouse begins to
receive Social Security benefits.
Hence, Monette argues that
Williams controls and that the trial court erred by modifying
the maintenance obligation.
We disagree.
Prior to our General Assembly’s enactment of
Kentucky’s no-fault divorce law in 1972, the determination of
whether a maintenance obligation in a settlement agreement was
subject to modification turned on whether the provision dealing
with maintenance was deemed to be an integral part of a final
and complete property settlement agreement, or whether the
maintenance provision was simply deemed to be an agreed upon
10
Ky., 789 S.W.2d 781 (1990).
11
Id. at 782.
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amount for spousal support.12
If the provision fell into the
former category, the maintenance obligation was not subject to
modification, since the court did not have the authority to
modify a complete and binding contract entered into by the
parties.13
However, if the provision fell into the latter
category, the court retained the authority to modify the
maintenance obligation upon a showing of a sufficient change in
circumstances.14
However, the Legislature’s enactment of Kentucky’s nofault divorce law significantly changed the mode of analysis
with respect to this modification issue.15
Pursuant to KRS
403.180(6), the terms in a settlement agreement related to
maintenance are subject to modification unless the agreement
expressly prohibits modification.
Further, KRS 403.250(1)
specifically states 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.”
12
See Richey v. Richey, Ky., 389 S.W.2d 914, 919 (1965)(stating that when the
issue is modification of a maintenance obligation, the key determination is
whether the maintenance provision is an integral part of a final and complete
property settlement agreement).
13
See Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663 (1933).
14
See Boehmer v. Boehmer, 259 Ky. 69, 82 S.W.2d 199 (1935).
15
See Scott v. Scott, Ky., 529 S.W.2d 656, 657 (1975)(noting that KRS
403.180(6), which deals with the modification of maintenance obligations in
settlement agreements, states a different rule than that as announced in
Richey, supra).
-10-
In Williams, the Supreme Court was careful to note
that the agreement at issue was a pre-1972 property settlement
agreement.
As such, the Court looked to determine whether the
maintenance provision was an integral part of a final and
complete property settlement agreement.
After finding that the
parties’ 1970 property settlement agreement was a “final
settlement of all of the parties’ property rights as
distinguished from a provision for a mere right of support,” the
Court held that the maintenance provision was not subject to
modification.
In the case sub judice, the property settlement
agreement was entered into in 1979.
Therefore, the modification
rules governing pre-1972 settlement agreements do not apply.
Instead, whether the maintenance provision in the case at bar is
subject to modification depends upon the application of KRS
403.180 and KRS 403.250; thus Monette’s reliance on Williams is
misplaced.
Accordingly, if the standard established under KRS
403.180 and KRS 403.250 is satisfied, Monette’s receipt of
Social Security benefits could support a reduction in William’s
maintenance obligation.
As we mentioned previously, the trial court reduced
William’s maintenance obligation by $544.00 per month after
finding that “she would not have received [these benefits] but
for the marriage to [William].”
We hold that this factual
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finding by the trial court is clearly erroneous.16
Our review of
the record shows that only 47% of Monette’s Social Security
benefits of $544.00 per month was derived from her marriage to
William.
The remaining 53% was derived from her own earnings
record.
Hence, the trial court clearly erred by finding that
the entire $544.00 per month was attributable to Monette’s
marriage to William.
Accordingly, we vacate that portion of the
trial court’s order granting William a $544.00 per month offset
in his maintenance obligation, and remand this matter with
directions for the trial court to reconsider, in light of the
changes that have occurred since 1979, whether William is
entitled to a reduction under KRS 403.180 and KRS 403.250.
Next, we turn to Monette’s claim that the trial court
erred by reducing William’s maintenance obligation by $456.00
per month due to her relationship with Mihalek.
In particular,
Monette argues that her relationship with Mihalek did not, as a
matter of law, “equate to cohabitation.”
However, Monette’s
focus on the legal concept of “cohabitation” overlooks the
proper inquiry with respect to this issue.17
16
See Kentucky Rules
Trustees of Kentucky
that “[t]he findings
aside unless clearly
of Civil Procedure 52.01; and Weiand v. Board of
Retirement Systems, Ky., 25 S.W.3d 88, 92 (2000) (stating
of a trial judge sitting without jury may not be set
erroneous”).
17
See Cook v. Cook, Ky., 798 S.W.2d 955, 957 (1990). In Cook, our Supreme
Court, quoting from Black’s Law Dictionary, 5th edition, defined
“cohabitation” as:
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In Combs v. Combs,18 the Supreme Court held that where
the former wife was able to enjoy a new “financial resource” as
a result of her subsequent relationship with another man, the
continuation of the former husband’s maintenance obligation
could be deemed “unconscionable,” thereby justifying a reduction
in the former husband’s maintenance obligation.19
Although the
former wife in Combs had begun “cohabitating” with another man,
whether or not the couple’s relationship amounted to
“cohabitation” was not at issue.20
Rather, the Court’s analysis
focused on whether the nature of the former wife’s new
relationship was such that there had been a “change of
circumstances” under KRS 403.250(1).21
The Combs Court went on to list six elements for a
trial court to consider when determining whether a former
To live together as husband and wife. The mutual
assumption of those marital rights, duties, and obligations
which are usually manifested by married people, including
but not necessarily dependent on sexual relations.
The Court went on to hold that under the facts of Cook, the former wife’s
relationship with another man did not constitute “cohabitation,” and that the
former husband was therefore not entitled to have his maintenance obligation
terminated under the parties’ property settlement agreement.
18
Ky., 787 S.W.2d 260, 262 (1990).
19
Id. The Court stated “[w]e believe that a maintenance recipient’s
cohabitation can render continued maintenance ‘unconscionable’ if the nature
of the cohabitation constitutes a new ‘financial resource’ as contemplated in
KRS 403.200(2)(a).”
20
See Cook, supra at 957 (1990)(stating that “[w]hether or not conduct
amounted to cohabitation was not an issue in Combs . . .”).
21
Combs, 787 S.W.2d at 262.
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spouse’s new relationship with another individual justifies a
reduction in the obligor spouse’s maintenance obligation:
1. Duration--It should never be the
intention of the Court to allow for
maintenance reduction based upon casual
“overnights” or dating. A showing of
substantially changed circumstances under
KRS 403.250(1) based upon cohabitation,
necessarily involves proof of some
permanency or long-term relationship.
2. Economic Benefit--The relationship must
be such to place the cohabitating spouse in
a position which avails that spouse of a
substantial economic benefit. The scope and
extent of the economic benefit should be
closely scrutinized. If the “cohabitation”
does not change the cohabitating spouse’s
economic position, then reductions should
not be permitted.
3. Intent of the Parties--Does it appear
that the cohabitating spouse is avoiding remarriage to keep maintenance? Does it
appear from the circumstances that the
cohabitating parties intend to establish a
“lasting relationship?”
4. Nature of the Living Arrangements--Does
it appear that the cohabitation is merely a
space sharing situation or is there one
common household?
5. Nature of the Financial Arrangements--Is
there a “pooling of assets?” Is there
actually a joint or team effort in the
living arrangement? Who pays the bills and
how are they paid?
6. Likelihood of a Continued Relationship-Does it appear that the relationship will
continue in the future? Do the parties
intend the relationship to continue
indefinitely?
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Finally, the Court in Combs was careful to note that
if a trial court reduces or terminates an obligor spouse’s
maintenance obligation based upon a recipient spouse’s
relationship with another individual, the trial court “retain[s]
jurisdiction over the issue to make subsequent modifications if
a substantial change occurs in the [new] relationship.”22
As we discussed previously, in considering the
parties’ cross-motions to modify maintenance, the trial court
erred by limiting its inquiry to the consideration of only those
changes that had occurred since 1992.
Hence, because of this
error, that portion of the trial court’s order reducing
William’s maintenance obligation by $456.00 per month must be
vacated and this matter is remanded with directions to consider
the six elements listed in Combs, together with the changes that
have occurred since 1979, to determine whether Monette’s
relationship with Mihalek constitutes grounds for a modification
of William’s maintenance obligation.
On remand, the trial court must examine Monette’s
relationship with Mihalek to determine whether the nature of
that relationship is such that it constitutes a new “financial
resource” for her.
While the couple’s living arrangements is
certainly a factor to consider, it is not dispositive of the
issue, nor is it necessarily the focus of the inquiry.
22
Id. at 263.
-15-
In
Combs, the Court recognized that “not every instance of
cohabitation constitutes a change in circumstances” which would
justify a reduction in maintenance.23
The converse is also true,
i.e., “cohabitation,” as the term is defined in Cook, is not a
prerequisite for reducing an obligor spouse’s maintenance
obligation if there has otherwise been a sufficient change of
circumstances under KRS 403.250(1).24
Accordingly, that portion
of the trial court’s order reducing William’s maintenance
obligation by $456.00 per month due to Monette’s relationship
with Mihalek is vacated and this matter is remanded for further
proceedings consistent with this Opinion.
Finally, we address William’s argument on his crossappeal that the trial court erred by not terminating his
maintenance obligation altogether.
Once again, we note that in
considering the parties’ cross-motions to modify maintenance,
the trial court erred by limiting its inquiry to the
consideration of only those changes that had occurred since
1992.
Therefore, this is an issue which must be reexamined once
the trial court makes the appropriate factual findings using
1979 as the benchmark year to determine whether a sufficient
23
Id. at 262.
24
See Williams v. Williams, Ky.App., 554 S.W.2d 880, 881 (1977)(affirming a
trial court’s decision to terminate maintenance where it was discovered that
the obligor spouse’s financial situation had “waned,” while the recipient
spouse had “done better” because of her new relationship with “a gentlemen of
some means . . .”).
-16-
change of circumstances has occurred.
Accordingly, that portion
of the trial court’s order denying William’s motion to terminate
his maintenance obligation is vacated and this matter is
remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
BRIEFS FOR APPELLEE/CROSSAPPELLANT:
Barbara Anderson
Lexington, Kentucky
Glen S. Bagby
J. Robert Lyons, Jr.
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT:
J. Robert Lyons, Jr.
Lexington, Kentucky
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