Opinion
NO. 2016-CA-000043-MR
09-15-2017
PHYLLIS HERSHEY APPELLANT v. MACK EDWIN HERSHEY APPELLEE
BRIEF FOR APPELLANT: Ross T. Ewing Lexington, Kentucky BRIEF FOR APPELLEE: Anita M. Britton Amy C. Johnson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 98-CI-04352 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. KRAMER, CHIEF JUDGE: Phyllis Hershey appeals an order of the Fayette Family Court terminating the obligation of her former husband, Mack Edwin Hershey ("Edwin"), to pay her maintenance. Upon review, we affirm.
Edwin and Phyllis were divorced on July 28, 2000. As part of their divorce, Edwin became obligated to pay Phyllis open-ended maintenance of $500 per month. On or about October 23, 2015, Edwin (by and through his new wife and power of attorney) then filed a verified motion to terminate his maintenance obligation pursuant to Kentucky Revised Statute (KRS) 403.250(1). Phyllis filed no response to his petition and, on November 10, 2015, the family court granted it. As to why the family court did so, its order explained:
This matter having come before the Court on Motion of the Respondent on Friday, October 30, 2015, the Respondent having appeared with counsel, the petitioner having not appeared, the Court having reviewed the record and being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
Based on the facts as provided by the Respondent (hereinafter "Edwin") in his Verified Motion to Terminate Maintenance and there being no opposition to this Verified Motion, the Court hereby GRANTS Edwin's Verified Motion to Terminate Maintenance.
On November 16, 2015, Phyllis moved the family court, pursuant to Kentucky Civil Rule of Procedure (CR) 60.02, to set aside its order terminating Edwin's maintenance obligation to her. In support of her motion, she contended she had never actually received Edwin's petition. Subsequently, the family court rejected her motion after determining that she had been constructively served with Edwin's petition even if she had not actually received it.
On appeal, Phyllis does not take issue with whether she was effectively served with Edwin's petition. Instead, she makes two arguments she did not make below. Her first argument is that the family court abused its discretion in terminating her maintenance because its order included no findings of fact. We disagree.
An order granting a motion to modify maintenance or support obligations is subject to CR 52.01, which requires written findings of fact so that it can be determined whether there has been a showing of changed conditions so substantial and continuing as to make the terms of the maintenance award unconscionable. See Mullins v. Mullins, 584 S.W.2d 601, 603 (Ky. 1979); Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 448 (Ky. 2012). Moreover, CR 52.01 requires a trial court to engage in at least a good faith effort at fact finding and that the found facts be included in a written order. Thus, when a court fails to make any kind of factual findings as required, its failure to do so allows an appellate court to remand the case for findings even where the complaining party failed to bring the lack of specific findings to the trial court's attention. Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011).
What Phyllis overlooks, however, is that the family court specified its order was "[b]ased on the facts as provided by [Edwin] in his Verified Motion to Terminate Maintenance"--facts Phyllis never opposed or disputed. Edwin's seven-page verified motion and its accompanying exhibits, in turn, carried the evidentiary weight of an affidavit and amply supported Edwin's sole argument that changed conditions so substantial and continuing had occurred which made the terms of the maintenance award unconscionable.
In sum, Edwin explained in his motion that he had regularly paid Phyllis over twice what he owed her for maintenance until 2012, when he began experiencing memory problems which ultimately caused him to retire. Shortly thereafter, he was diagnosed with Alzheimer's-type dementia; deemed by his treating physician and the Social Security Administration to be totally disabled for employment purposes; and his memory degenerated rapidly. Due to his diminished income and mounting expenses associated with his condition (including Edwin's anticipated need to move to a long-term nursing facility), he no longer had the resources to pay Phyllis any amount of maintenance when he filed his verified motion.
To be sure, it may not have been the best course for the family court to incorporate Edwin's petition into its order as a stand in for findings of fact and conclusions of law. However, this cannot be considered a failure to make any findings of fact because it sufficiently indicated the family court's conclusion and factual basis for determining that Edwin was no longer financially able to meet any maintenance obligation to Phyllis. For our purposes, that is enough. See The Travelers v. Humming Bird Coal Co., 371 S.W.2d 35, 38 (Ky. 1963) (explaining factual findings are sufficient "if they indicate the factual basis for the ultimate conclusions." (Quotations omitted)). Moreover, even a failure to make any findings of fact should be regarded as harmless error where, as here, the relevant facts in the record are undisputed. Crain v. Dean, 741 S.W.2d 655, 658 (Ky. 1987).
This leads to Phyllis's second argument. Phyllis contends the family court could not have properly determined that Edwin's maintenance obligations had become unconscionable because the family court made no findings of fact regarding her present circumstances.
However, there are at least two reasons why this argument presents no basis for reversal. First, it was never raised below. See, e.g., Elery v. Commonwealth, 368 S.W.3d 78, 97-98 (Ky. 2012) ("[A]n appellant preserves for appellate review only those issues fairly brought to the attention of the trial court . . . . A new theory of error cannot be raised for the first time on appeal.") (Internal citations and quotation marks omitted). Second, to the extent that Phyllis is seeking reversal and remand based upon the sufficiency of the family court's findings—what she perceives as the family court's failure to make a finding on an essential issue of fact—her argument is likewise unpreserved because she filed no motion with the family court asking for factual findings. CR 52.04.
In short, Phyllis has not demonstrated the Fayette Circuit Court committed reversible error. We therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Ross T. Ewing
Lexington, Kentucky BRIEF FOR APPELLEE: Anita M. Britton
Amy C. Johnson
Lexington, Kentucky