LISA DIANE MASSEY v. MICHAEL JOHN MASSEY
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RENDERED:
SEPTEMBER 1, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002197-MR
LISA DIANE MASSEY
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 03-CI-502550
v.
MICHAEL JOHN MASSEY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
TAYLOR, JUDGE:
Lisa Diane Massey appeals from the Findings of
Fact and Conclusions of Law as incorporated into the Decree of
Dissolution of Marriage entered in the Jefferson Family Court on
September 3, 2004, awarding her maintenance for a period of five
years.
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We affirm in part, reverse in part, and remand.
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
Lisa and Michael John Massey were married August 21,
1982.
The couple was divorced by decree of dissolution entered
in the Jefferson Family Court on September 3, 2004.
41-years-old at the time of the divorce.
the parties’ marriage on June 17, 1990.
Lisa was
One child was born of
Pursuant to the
Findings of Fact and Conclusions of Law also entered September
3, 2004, the court awarded sole custody of the parties’ child to
Michael.
Lisa was granted visitation and was ordered to pay
child support in the amount of $175.00 per month.
Lisa was also
awarded maintenance of $1,200.00 per month subject to offset by
her monthly child support obligation.
Lisa filed a motion to
“Amend, Alter or Vacate” the court’s judgment which was denied
by order entered September 24, 2004.
This appeal follows.
Lisa contends the family court’s award of maintenance
was improper.
In its Findings of Fact and Conclusions of Law,
the family court awarded maintenance as follows:
[I]n the amount of $1,200.00 per month.
This amount shall be offset by [Lisa’s]
child support obligation of $175.00 per
month, for a total maintenance payment of
$1,025.00 per month for the next two (2)
years; then the sum of $750 per month for
two (2) years, and finally the sum of
$500.00 per month for one (1) year. This
maintenance award shall cease upon the death
of either party or upon [Lisa’s] remarriage
or cohabitation. Additionally, this amount
shall be reviewable should [Lisa] receive
any awards from her personal injury cases.
[Lisa’s] child support obligation shall be
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recalculated when her maintenance is
reduced.
Lisa specifically contends the family court abused its
discretion by ordering the “lump sum” maintenance award to be
modified only if Lisa’s financial situation improves.
Lisa
believes the award should additionally be subject to
modification if her financial situation did not improve or
worsened.
By failing to make such a provision, Lisa alleges the
maintenance award is “inequitable.”
A lump sum maintenance award is an award for a “fixed
and determinable amount.”
16 Graham & Keller, Kentucky
Practice, § 16.21 (2d ed. 1997).
A maintenance award payable in
installments may still be characterized as a lump sum award.
Id.
However, a maintenance award that is subject to
modification is not a lump sum award.
Id.
Thus, Lisa’s
characterization of the award as a lump sum maintenance award is
erroneous.
Rather, we view the award as an open-ended
maintenance award.
Modification of an open-ended maintenance award is
governed by Kentucky Revised Statutes (KRS) 403.250(1), which
states:
Except as otherwise provided in subsection
(6) of KRS 403.180, 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. The
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provisions as to property disposition may
not be revoked or modified, unless the court
finds the existence of conditions that
justify the reopening of a judgment under
the laws of this state.
We read KRS 403.250(1) to provide that an open-ended maintenance
award may be modified either upon a continuing and substantial
change in circumstances making the terms unconscionable or under
the provisions of KRS 403.180(6).
KRS 403.180(6) provides that
a decree may “expressly preclude or limit modification of terms
if the separation agreement so provides.”
Thus, pursuant to a
separation agreement, the parties may define the terms by which
an open-ended maintenance award may be modified.
To summarize, an open-ended maintenance award may be
modified by only two methods: (1) agreement of the parties
pursuant to a separation agreement, or (2) changed circumstances
so substantial and continuing as to make the terms of the award
unconscionable.
Consequently, the family court’s order
subjecting the award to modification only if Lisa’s financial
situation improved is clearly contrary to the mandates of KRS
403.250(1).
The family court simply cannot impose modification
terms upon an open-ended maintenance award not authorized by KRS
403.250(1).
As KRS 403.250(1) sets forth two specific methods
by which an open-ended maintenance award may be modified, we
conclude the family court erred by subjecting Lisa’s maintenance
award to modification only upon improvement of Lisa’s financial
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situation.
Upon remand, we direct the family court to enter an
award of maintenance consistent with our opinion.
Lisa also contends the family court erred as to the
amount and duration of the maintenance award.
Lisa asserts that
the award of maintenance should have been permanent and that the
amount awarded was inadequate.
It is axiomatic that the amount and duration of a
maintenance award is within the sound discretion of the circuit
court.
Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990).
An award
of maintenance will not be disturbed on appeal absent an abuse
of discretion.
Perrine v. Christine, 833 S.W.2d 825 (Ky. 1992).
When determining the amount and duration of a
maintenance award, KRS 403.200(2) requires the court to consider
“all relevant factors,” including:
(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
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(f) The ability of the spouse from whom
maintenance is sought to meet his needs
while meeting those of the spouse seeking
maintenance.
In the case sub judice, a review of the record reveals
the court considered the relevant statutory factors outlined in
KRS 403.200 concerning the amount of maintenance awarded.
Specifically, Lisa was awarded one-half of the value of the
marital residence, equaling approximately $55,000.00 in equity,
and two vehicles.
The record also indicates Lisa withdrew some
$10,490.00 from the parties’ joint savings account, and received
$1,855.00 in a 2003 tax refund.
Lisa was also awarded one-half
of Michael’s Deferred Benefit Plan, and will receive a future
benefit.
Michael’s gross income for 2003 was $65,691.76.
Michael was also awarded sole custody of the parties’ minor
child.
Considering the marital property awarded to Lisa, the
modest standard of living established during the marriage, and
Michael’s ability to pay maintenance, we simply cannot say the
family court abused its discretion as to the amount of
maintenance awarded.
We do not believe, however, the family court made
sufficient findings to support the duration of the maintenance
award for a term of five years.
As noted in the court’s
findings, Lisa alleged she is permanently and totally disabled
and otherwise unable to work to support herself.
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The family
court noted in its findings that Lisa has not been employed
since an automobile accident in October 2000.
Apparently, the
court heard evidence regarding Lisa’s disability and her ability
to obtain future employment.
Notwithstanding, the family court
made no findings on this issue.
We believe the duration of any
maintenance award in this case must look to whether Lisa is
permanently disabled and whether she can be gainfully employed
in the future.
The fact that she may have a pending lawsuit
pertaining to the injuries sustained in the automobile accident
is not sufficient for the family court to make a determination
as to the duration of maintenance.
In this regard, the family
court’s findings do not comport with KRS 403.200(2) and, thus,
the court abused its discretion in awarding maintenance for a
term of five years absent specific findings on the issues of
Lisa’s disability and future employability.
For the foregoing reasons, the Findings of Fact and
Conclusions of Law as incorporated in the Decree of Dissolution
of Marriage of the Jefferson Family Court is affirmed in part,
reversed in part, and this cause remanded for a new award of
maintenance consistent with this opinion.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
John K. Carter
LaGrange, Kentucky
Katie Marie Brophy
Louisville, Kentucky
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