Opinion
NO. 2019-CA-001012-MR
03-27-2020
DENNIS ROBERT FELCHNER APPELLANT v. SHEILA MARIE FELCHNER APPELLEE
BRIEFS FOR APPELLANT: Christopher T. Davenport Bowling Green, Kentucky BRIEF FOR APPELLEE: Catherine S. Clemons Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 13-CI-00119 OPINION
AFFIRMING
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BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Dennis Robert Felchner appeals from an order of the Allen Circuit Court denying his motion to terminate or modify the maintenance payments he is required to make to Sheila Marie Felchner pursuant to a 2013 divorce decree. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Sheila and Dennis were married for 36 years and were divorced in 2013. Dennis was employed by Federal Mogul as an engineer at the time of the divorce, and he continued to work there until his termination in March 2019.
Pursuant to a separation agreement that was made part of the divorce decree, Dennis agreed to pay spousal maintenance to Sheila in the amount of $2,624 per month for a period of 11 months beginning June 1, 2013, and $2,459 per month thereafter until Sheila reaches the age of 61. Then, Dennis is required to pay maintenance to Sheila in the amount of $2,959 per month until Sheila reaches the age of 66. Thereafter, the maintenance payments are reduced to $2,000 per month for the remainder of Sheila's life.
The separation agreement also provides as follows:
Maintenance shall be non-modifiable unless there is a decrease in the Husband's income, provided however, the Husband shall not be entitled to a modification if said decrease in income comes about voluntarily or is a result of a demotion or termination at work for cause. The parties intend this agreement to be non-modifiable, despite the holding in Woodson v. Woodson. Maintenance shall terminate upon the Wife's death, re-marriage or cohabitation.
Dennis was involuntarily terminated as an engineer at Federal Mogul in March 2019. He then filed a motion to terminate or, alternatively, to modify the maintenance award. A hearing was held in the Allen Circuit Court in April 2019, and the trial court heard testimony from Dennis and Sheila as well as from Lilly Beth Parrent, a human resources manager at Federal Mogul. Parrent testified that Dennis's job loss was through no fault of his own and that his position had been eliminated altogether.
Dennis was 65 years old at the time of the hearing, and he testified he anticipated receiving an 8 1/2 month severance package from Federal Mogul to be paid as a lump sum in the amount of nearly $74,000. He stated he was agreeable to pay maintenance from the severance package as if he was receiving the income monthly. Further, pursuant to the severance package, Dennis was given the opportunity to work with Challenger, Gray, & Christmas, Inc., a company that would help him search for a new job.
Dennis had intended to work for Federal Mogul for a few more years, and he has no medical issues to preclude him from working. He testified that he had not attempted to find further employment since his termination. In the absence of further employment, his income will consist of social security benefits totaling $2,600 per month. In addition, Dennis has a 401k totaling an estimated $160,000, and a pension from Federal Mogul estimated at $150,000.
Sheila was 61 years of age at the time of the hearing, and she was working 3-3 1/2 days per week out of her home as a licensed massage therapist. She has consulted a shoulder specialist as she has begun to experience shoulder pain as a result of her work. She was also working 2-2 1/2 days per month for the health department as an independent contractor.
Sheila estimated she earned $28,979 in gross income in 2018. The health department pays half of her health insurance costs. Although Sheila was eligible to draw social security benefits of $850 per month, waiting until she turns 66 would grant benefits amounting to $1,250 per month. Her maximum benefits will be about half of Dennis's benefits. Sheila also has $203,000 in savings and stocks and approximately $1,700 in her checking accounts. Since the divorce, Sheila sold her home for $225,000 and built a new residence for approximately $216,000.
The trial court denied Dennis's motion to terminate or, alternatively, to modify the maintenance payments. The court found as follows:
From the testimony of Parrent and the Petitioner, it is clear the Petitioner is financially capable of continuing his payments to the Respondent. He is set to receive a gross payment of $73,918.14 in severance pay from Federal Mogul, and will soon receive $2,600 monthly in social security benefits. He also has substantial assets in retirement and savings accounts with one account totaling $160,000 and the other totaling $150,000. Additionally, he has ample opportunity to regain employment, despite his lack of attempting to do so. All of this may be considered when determining his ability to pay maintenance regardless of whether Respondent is entitled to a division of the asset or not. [Light v. Light, 599 S.W.2d 476, 478 (Ky. App. 1980); Roberts v.
Roberts, 744 S.W.2d 433, 436 (Ky. App. 1988); Mosley v. Mosley, 321 S.W.3d 279 (Ky. App. 2010).]Further, the trial court stated as follows:
Respondent still depends on these payments to survive and would not be able to support herself without the maintenance she receives. She is limited in her training and is already sixty (60) years old. The parties were married for thirty-six (36) years and enjoyed a comfortable life together as Petitioner was earning a sizable income. Without the maintenance, Respondent would have to drastically alter her lifestyle. She suffers from anxiety and has physical pain associated with her work as a massage therapist. As Petitioner has options of potential new employment and other sources of income, he will be able to continue [to] meet his own needs while continuing to make maintenance payments to the Respondent.
On appeal, Dennis argues that the trial court's decision was based on findings of fact that are clearly erroneous and that the trial court abused its discretion in refusing to terminate or modify the maintenance award.
KRS 403.250(1) provides in part 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." In Tudor v. Tudor, 399 S.W.3d 791 (Ky. App. 2013), this Court stated as follows:
Kentucky Revised Statutes. --------
Maintenance becomes unconscionable if it is "manifestly unfair or inequitable." Combs v. Combs, 787 S.W.2d 260, 261 (Ky. 1990). "To determine whether the
circumstances have changed, we compare the parties' current circumstances to those at the time the court's separation decree was entered." Block v. Block, 252 S.W.3d 156, 160 (Ky. App. 2008).Id. at 793.
The circuit court's decision to decline modification of the maintenance award is reviewed for abuse of discretion. Id. at 159. We may only disturb the court's conclusion if it "abused its discretion or based its decision on findings of fact that are clearly erroneous." Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003). The circuit court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).
In support of his argument that the trial court's decision was based on findings of fact that are clearly erroneous, Dennis argues the court clearly erred in its determination that the current maintenance obligation was not unconscionable. He asserts that he will only have income of $2,600 per month from social security once his severance package expires. He states that should Sheila choose to draw social security, her per month income, which includes her part-time work as a massage therapist, would exceed his monthly income which consists solely of his social security benefits. Further, Dennis argues that his connection to an organization that helps individuals locate jobs does not automatically mean he has the ability to locate other means of employment.
In support of his argument that the trial court abused its discretion in refusing to modify the maintenance award, Dennis states that "[t]his situation now involves two individuals with roughly equal earnings and substantially changed circumstances." He cites Daunhauer v. Daunhauer, 295 S.W.3d 154 (Ky. App. 2009), for the proposition that "[w]hen one previously dependent upon a former spouse achieves self-sufficiency, both policies of rehabilitation and stability are satisfied." Id. at 157. Further, this Court stated in Daunhauer that the "most appropriate reason for . . . modification, and that anticipated by the policy behind KRS 403.200, is the ability of [the receiving party], through rehabilitation, to live independently of maintenance." Id. Dennis argues that Sheila "has attained self-sufficiency, as her income will soon exceed the Appellant's."
In response to Dennis's arguments, Sheila asserts that Dennis still has access to significant income, in that he became eligible to draw social security in August 2019 with benefits of $2,600 per month. Further, he has the opportunity to work with a company that could help him find a new job, although he testified he had not made any attempts in that regard.
Further, Sheila notes that she was not eligible for social security benefits at that time and that her benefits will only be half of those received by Dennis. She also draws attention to the fact that Dennis has no medical problem to hamper his employment potential, while she has a shoulder problem that affects her employment as a licensed massage therapist.
Sheila also seeks to distinguish Daunhauer, the case upon which Dennis relies. Dennis argues that he should be relieved of the maintenance obligation because Sheila is self-sufficient, but she counters that the parties in Daunhauer were much younger at the time of the divorce, and the obligor in that case had paid the obligee for a longer period of time than the couple had actually been married. Further, in Daunhauer the goal reflected in the settlement agreement was rehabilitation and a recognition that, due to her young age, the obligee would likely be able to become self-sufficient. Id. at 157.
Further, to counter Dennis's reliance on Daunhauer, Sheila cites Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008), where our Supreme Court stated:
[I]n situations where the marriage was long term, the dependent spouse is near retirement age, the discrepancy in incomes is great, or the prospects for self-sufficiency appear dismal, our courts have declined to follow that policy [rehabilitation] and have instead awarded maintenance for a longer period or in greater amounts.Id. at 470 (quoting Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003)). Sheila asserts that she is not self-sufficient as Dennis claims and that she is dependent on the maintenance payments to meet her needs.
As stated above, KRS 403.250(1) provides in part 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." "Maintenance becomes unconscionable if it is 'manifestly unfair or inequitable.'" Tudor, 399 S.W.3d at 793 (quoting Combs, 787 S.W.2d at 261). "The circuit court's decision to decline modification of the maintenance award is reviewed for abuse of discretion." Id. (citing Block, 252 S.W.3d at 159). "The circuit court abuses its discretion when its decision is 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Id. (quoting Artrip, 311 S.W.3d at 232).
We cannot say that the trial court's denial of Dennis's motion was manifestly unfair or inequitable so as to be held to be unconscionable. The maintenance award in this case was obviously intended to be long term, although it was subject to modification in the event of a decline in Dennis's income. While Dennis's employment was terminated through no fault of his own, there are other relevant factors. Dennis was to receive a severance package, and he was eligible to draw social security. Further, he was given the opportunity to work with a company that could help him find a new job. Sheila, on the other hand, had limited income as a massage therapist and had begun to experience shoulder problems. As stated in Daunhauer, "[t]his Court 'is not authorized to substitute its own judgment for that of the trial court where the trial court's decision is supported by substantial evidence.'" 295 S.W.3d at 156 (quoting Barbarine v. Barbarine, 925 S.W.2d 831, 832 (Ky. App. 1996)).
Because the trial court's decision was supported by substantial evidence, we conclude it did not abuse its discretion in denying Dennis's motion to terminate or modify maintenance. Therefore, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher T. Davenport
Bowling Green, Kentucky BRIEF FOR APPELLEE: Catherine S. Clemons
Bowling Green, Kentucky