LESIA LYNN HORSLEY AND STEPHEN R. MCGINNIS v. PAUL EDWARD HORSLEY and PAUL E. HORSLEY v. LESIA HORSLEY
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RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001604-MR; 2005-CA-002253-MR;
AND 2005-CA-002460-MR
LESIA LYNN HORSLEY AND
STEPHEN R. MCGINNIS
v.
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CI-00120
PAUL EDWARD HORSLEY
AND:
LESIA HORSLEY
APPELLEE/CROSS-APPELLANT
NO. 2005-CA-002298-MR
PAUL E. HORSLEY
v.
APPELLANTS/CROSS-APPELLEES
CROSS-APPELLANT/APPELLEE
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CI-00120
CROSS-APPELLEE/APPELLANT
OPINION
VACATING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; HOWARD, JUDGE; GUIDUGLI,1 SENIOR
JUDGE.
GUIDUGLI, SENIOR JUDGE: Lesia Lynn Horsley (“Lesia”) and Paul Edward Horsley
(“Paul”) appeal, individually, various orders of the Greenup Circuit Court in their
dissolution of marriage action. We vacate in part and reverse and remand in part.
The parties were married on January 7, 1978, and separated on February 8,
2004. Lesia dropped out of school in the ninth grade but did obtain her GED. During the
marriage, Paul was the primary breadwinner and Lesia worked very little. Two children
were born of the marriage, now adults, with whom Lesia stayed home and raised.
The case was heard in front of a Domestic Relations Commissioner
(“DRC”) who then entered a report on June 7, 2005. In his report, the DRC
recommended a maintenance award of $750.00 per month for Lesia. At the time of the
final hearing, the marital estate was approximately $20,000 in personal property and the
parties did not own any real estate. Paul was working a full-time job and earned
approximately over $60,000 in 2005. Lesia was not employed. The DRC recommended
that Paul's pension plan be divided between the parties via a Qualified Domestic
Relations Order. All personal property remaining after paying off debts was to be
1
Senior Judge Daniel T. Guidugli 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.
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divided in a roughly 50/50 split between the parties. The court incorporated the DRC's
recommendations in an order entered July 8, 2005.
On July 25, 2005, Paul filed a motion to alter, amend or vacate the July 8,
2005, order. Lesia filed a notice of appeal of the July 8, 2005, order.2 She also moved
the circuit court to dismiss Paul's motion as untimely. The court found that it had the
authority to hear the motion and, after hearing arguments from both parties, entered an
order on October 10, 2005, pertaining to personal property and attorney's fees. An agreed
order was entered on October 25, 2005, amending the October 10, 2005, order. Lesia
filed a new notice of appeal to include the October 10, 2005, and October 25, 2005,
orders.3 On November 1, 2005, the circuit court entered a Decree of Dissolution of
Marriage incorporating the DRC's report of June 7, 2005, and orders of July 8, 2005,
October 10, 2005, and October 25, 2005. It was the first order identified as a final
judgment. Paul filed his cross-appeal to the decree.4 Lesia filed her third and final appeal
to also include the decree.5 This court has consolidated the four appeals. The only issues
before this court are the timeliness of Paul's July 25, 2005, motion to alter, amend or
vacate and maintenance.
Motions to alter, amend or vacate must be served no more than 10 days
after the entry of the judgment. Paul's motion was filed July 25, 2005, and served, via fax
and mail, on July 21, 2005. The motion was not served until 13 days after the July 8,
2
2005-CA-001604-MR
2005-CA-002253-MR
4
2005-CA-002298-MR
5
2005-CA-002460-MR
3
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2005, order and the trial court was without jurisdiction to hear it. Therefore, the October
10, 2005, order is hereby vacated. Because the October 25, 2005, order was entered to
amend the October 10, 2005, order it is also vacated.
Maintenance awards are left to the discretion of the trial court but will not
be upheld by a reviewing court if found to be an abuse of discretion or based on clearly
erroneous findings of facts. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003). Perrine
v. Christine, 833 S.W.2d 825, 826 (Ky. 1992).
Maintenance may be granted in a dissolution of marriage proceeding if the
spouse seeking maintenance lacks sufficient property to provide for his/her reasonable
needs and is either unable to support himself or is the custodian of a child whose needs
require the custodian to not work outside the home. KRS6 403.200(1). Lesia maintains
that the $750.00 per month award is insufficient to meet her needs and should be raised.
Paul argues that the award is excessive in amount and duration.
KRS 403.200(2) sets out the factors to be considered by the court when
determining an amount and duration of a maintenance award. They are: the financial
resources of the party seeking maintenance; the time necessary to acquire sufficient
education or training to find appropriate employment; the standard of living established
during the marriage; the duration of the marriage; the age, and the physical and emotional
condition of the spouse seeking maintenance; and the ability of the spouse from whom
maintenance is sought to meet his needs while meeting those of the other spouse.
6
Kentucky Revised Statutes.
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Lesia claims that she is entitled to a higher maintenance award for several
reasons. They are: her lack of personal property; her limited skills; her lack of work
experience; the duration of the marriage; her contribution in raising the children; her
significant health problems; her inability to meet her needs with the amount awarded; and
the disparate lifestyles the couples will maintain since Paul's gross income will be more
than three times hers after paying maintenance.
Paul cites several reasons the maintenance award is excessive. They are:
Lesia's failure to prove lack of sufficient property or inability to support herself through
appropriate employment and the court's failure to consider an anticipated settlement from
a personal injury lawsuit.
Foremost, any amounts Lesia expects to receive from her personal injury
action are purely speculative. It was appropriate for the circuit court not to consider those
sums at this time as there is no way to determine what they may be. In the future, receipt
of any settlement would create a situation in which maintenance may be reconsidered
pursuant to KRS 403.250.
The extent of the property owned by the parties was disclosed during the
dissolution process. If Paul believed Lesia owned property which she was not disclosing
to the court, then it was Paul's duty to prove so. Both parties received approximately
$10,000 worth of personal property from the divorce. For Lesia, this included household
items and a trailer. It is unrealistic to expect her to sell any of those items in an effort to
support herself. Additionally, Lesia's award of part of Paul's pension will not be
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accessible for some time. It is clear, as the DRC found and the circuit court affirmed, that
Lesia lacks sufficient property to provide for her reasonable needs and therefore satisfies
the first prong of KRS 403.200(1).
Because there are no children of which she is a guardian, we must next look
to her ability to support herself through employment. As noted before, Lesia has a GED
and not much of a work history. There is some dispute regarding her ability to work due
to physical injuries sustained in a car accident. A review of the record fails to reveal any
language from the court regarding Lesia's ability to work. While the DRC states that her
best prospects are for a minimum wage job, he does not make a finding of whether she is
capable of doing such. Furthermore, when directly addressing the issue of maintenance
in his report, the DRC only addresses her lack of sufficient property to reasonably meet
her needs. The circuit court fails to make further findings regarding the issue of
maintenance except to incorporate the DRC's report in its July 8, 2005, order and make
the DRC report part of the November 1, 2005, decree. We are not satisfied that the
maintenance award is based on complete findings of fact. It does not address Lesia's
ability to work to support herself pursuant to KRS 403.200(1) and fails to make any
findings regarding those factors to be considered under KRS 403.200(2). We therefore
reverse those portions of the on the July 8, 2005, and November 1, 2005, orders
pertaining to maintenance and remand the issue back to the circuit court.
For the foregoing reasons, the October 10, 2005, order and October 25,
2005, order amending are hereby vacated and any language pertaining to maintenance in
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the July 8, 2005, order and the November 1, 2005, decree or incorporated therein is
hereby reversed and remanded to the trial court for proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEE/CROSSAPPELLANT
R. Stephen McGinnis
Greenup, Kentucky
Rhonda M. Copley
Ashland, Kentucky
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