CASTLE (DEBORA RAE), ET AL. VS. CASTLE (JIMMY LEE)Annotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 05-CI-00363
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BEFORE: LAMBERT AND TAYLOR, JUDGES; BUCKINGHAM, SENIOR
LAMBERT, JUDGE: Debora Castle appeals an order of the Greenup Circuit
Court terminating her maintenance due to cohabitation with a non-relative. After
careful review, we affirm.
Debora filed for divorce from Jimmy Lee Castle on June 15, 2005,
after having been married for more than twenty-five years. No separation
agreement was established, but a Domestic Relations Commissioner’s Report
(hereinafter “the Report”) was confirmed by the lower court. On January 4, 2007,
the court entered an order increasing the monthly amount of maintenance to
$750.00 per month and confirming all other elements of the Report. The court
simultaneously established a condition that payment of maintenance would
terminate if Debora “cohabitates with an individual other than a relative.”
On March 20, 2006, Jimmy filed a motion to terminate maintenance,
alleging that Debora was living with her boyfriend, Charles Peffer. After
conducting an evidentiary hearing, the court entered an order terminating Debora’s
maintenance. Debora filed a motion to alter, amend, or vacate, which was denied.
This appeal followed.
As an appellate court, this Court is not 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. Reichle v. Reichle, 719
S.W.2d 442 (Ky. 1986). The question, therefore, is whether the trial court’s
decision is supported by substantial evidence, meaning:
‘[e]vidence that a reasonable mind would accept as
adequate to support a conclusion’ and evidence that,
when ‘taken alone or in the light of all the evidence, . . .
has sufficient probative value to induce conviction in the
minds of reasonable men.’
See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). After reaching this
conclusion, we then review the trial court’s application of the law to those facts de
The maintenance award by the Greenup Circuit Court is an openended maintenance award, as opposed to lump sum maintenance, that was subject
to modification by the court under KRS 403.250(1). A lump sum maintenance
award is an award for a “fixed and determinable amount.” 16 Louise E. Graham &
James E. Keller, Kentucky Practice- Domestic Relations Law, § 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, as in the instant case, is not a lump sum award. Id.
Modification of an open-ended maintenance award is governed by
KRS 403.250(1), which states:
[e]xcept 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 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
KRS 403.250(1) also provides 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.
Therefore, 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. In this case there is no agreement as maintenance was
awarded pursuant to recommendation of the Domestic Relations Commissioner.
Thus, the only issue on appeal is whether the circuit court could modify the
maintenance award under KRS 403.250(1).
On February 26, 2007, the circuit court entered an order modifying
the temporary maintenance award based upon exceptions to the Domestic
Relations Commissioner’s report. In modifying the amount recommended by the
Commissioner, the court placed the no cohabitation restriction on Debora.
Notwithstanding, the maintenance award of February 26, 2007, clearly
contemplated future modification consistent with KRS 403.250(1).
At first blush, the cohabitation restriction in the maintenance award of
February 26, 2007, appears to be in contravention of KRS 403.250(1) on its face.
See Massey v. Massey, 220 S.W.3d 702 (Ky.App. 2006). However, when this
issue was brought before the circuit court on May 8, 2007, based upon a motion to
modify maintenance, the circuit court considered the cohabitation issue under the
unconscionability provisions of KRS 403.250(1). The circuit court made a specific
evidentiary finding that Debora’s cohabitation relationship was inequitable and
specifically found the existence of changed circumstances sufficient to make the
payment of maintenance unconscionable. See Combs v. Combs, 787 S.W.2d 260
(Ky. 1990). While the cohabitation restriction itself may have been unenforceable
absent an agreement between the parties, the circuit court still made sufficient
findings to warrant the termination of maintenance under KRS 403.250.
Debora additionally argues that the trial court erred in failing to award
her attorneys fees in light of the income disparity between the parties. Debora
ignores that KRS 403.220 clearly leaves it to the discretion of the trial court rather
than mandating that attorney fees be awarded in light of the financial resources of
the parties. Therefore, we do not find that the trial court abused its discretion in
choosing not to award said fees.
Accordingly, we affirm the order of the Greenup Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Stephen McGinnis
Dwight O. Bailey