Opinion
NO. 2011-CA-000328-MR
08-03-2012
ROBERT NEAL LEEZER APPELLANT v. DELAINE ROARX LEEZER APPELLEE
BRIEF FOR APPELLANT: Dean H. Sutton Louisville, Kentucky BRIEF FOR APPELLEE: Darren Sipes Brandenburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 09-CI-00240
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON AND VANMETER, JUDGES. VANMETER, JUDGE: Robert Leezer appeals from the January 25, 2011, order of the Meade Circuit Court which denied his motion to set aside, modify, or vacate its August 27, 2010, order requiring him to pay maintenance to Delaine Leezer in the amount of $800 per month, as well as attorney fees in the amount of $1,250. In addition, the January 25, 2011, order held Robert in contempt for failing to pay maintenance to Delaine per the August 27, 2010, order, and ordered him to pay an additional $500 in attorney fees. For the following reasons, we affirm.
In June 2009, Delaine filed a petition for dissolution of marriage from Robert. Approximately one month later, Delaine filed a motion for a pendente lite order of temporary maintenance. Following a hearing, the Domestic Relations Commissioner ("DRC") entered a pendente lite report and order indicating that Delaine was disabled, unemployed, had not held a job outside of the home since 1988, and received social security disability and income in the amount of $680 per month. As to Robert, the DRC indicated in her report that he lived with his mother, was not required to pay rent or utilities, had lost his job due to a trucking accident, and was earning $974 in temporary disability payments every two weeks. The circuit court accepted the report and granted Delaine temporary maintenance in the amount of $300 per month; however, upon the termination of Robert's temporary disability payments, temporary maintenance was terminated by order entered October 15, 2009.
The term "pendente lite" merely means "[d]uring the pendency of the suit, action or litigation." Ballentine's Law Dictionary 930 (3d ed., 1969). Kentucky courts have typically used the terms "pendente lite" and "temporary" interchangeably. E.g., Kelly v. Kelly, 179 Ky. 586, 587-88, 200 S.W. 926 (1918). Since temporary maintenance orders are interlocutory and may be modified or revoked by the trial court prior to the final decree, they generally are not subject to appellate review. Lebus v. Lebus, 382 S.W.2d 873, 874-75 (Ky. 1964); see also Kentucky Revised Statutes ("KRS") 403.160 (trial court may issue temporary maintenance orders).
The DRC held an evidentiary hearing relating to the parties and their marriage on January 14, 2010. The circuit court accepted the DRC's recommendation that the marriage be dissolved and entered a limited decree of dissolution on February 11, 2010. The court reserved any issues relating to property and maintenance for future rulings.
The DRC filed her report addressing property issues, debt and maintenance on July 27, 2010. Delaine filed objections with the circuit court, which issued its ruling in an order and opinion entered August 27, 2010. In that order, the circuit court noted that at the time of the evidentiary hearing, Robert stated he was drawing unemployment in the amount of $649 every two weeks, as well as working part-time up to twenty hours a week at $16.50 per hour, equating to a monthly income of $2,348.80 (for every dollar Robert earned, a portion of his unemployment was reduced). Delaine was also still found to be disabled and unemployed.
The circuit court also noted that at the time it took the matter into consideration, Robert claimed his income had fallen to $10 per hour; however, he provided no explanation or verification for this decrease. The circuit court determined Robert was still capable of earning between $10 and $16.50 depending upon his desire to seek the greatest earnings and that his monthly expenses were $400 for housing, and $250 for gas. As a result, the circuit court ordered Robert to pay to Delaine permanent maintenance in the amount of $800 per month, as well as her attorney's fees in the amount of $1,250. The maintenance award was made retroactively effective as of June 1, 2010.
An award of maintenance which is designated as "permanent maintenance," as contrasted to temporary maintenance, is merely the maintenance that is awarded by the trial court in the decree or, as in this case, any post-decree proceedings involving property division and maintenance. Of course, maintenance which is designated as "permanent" may terminate upon the occurrence of specified conditions (such as death, remarriage or cohabitation) or be modified pursuant to statute, KRS 403.250(1), as will be discussed infra.
Thereafter, Delaine filed a motion to hold Robert in contempt for failing to pay maintenance since June 2010. The matter came before the DRC, who recommended in a report filed December 21, 2010 that Robert appear before the circuit court to show cause why he should not be held in contempt, as well as pay an additional $500 in attorney fees. Robert filed CR 60.02(b) and (f) motions, requesting relief from the August 27, 2010, order on the basis that a medical condition prevents him from paying maintenance and attorney fees.
Kentucky Rules of Civil Procedure.
In support of his motions, Robert provided the deposition of Dr. Benjamin Smith, who has treated Robert since 2004. Dr. Smith stated that as of August 30, 2010, he put Robert on insulin, which meant he was not qualified to hold a commercial driver's license. In order to drive again, Dr. Smith testified Robert would have to take medicine to stabilize his sugar, meet with an endocrinologist, and then see an eye doctor to make sure the diabetes had not caused an eye disease. Without a commercial driver's license, Robert claimed he could no longer work. The circuit court denied Robert's motions, held him in contempt for failing to pay court-ordered maintenance, and awarded Delaine an additional $500 in attorney fees to be paid by Robert. This appeal followed.
Robert argues the circuit court abused its discretion by overruling his CR 60.02 motion seeking relief from the portion of the court's August 27, 2010, order requiring him to pay maintenance and attorney fees to Delaine. We disagree.
We review the denial of a CR 60.02 motion for an abuse of discretion. Age v. Age, 340 S.W.3d 88, 94 (Ky.App. 2011) (citation omitted). An abuse of discretion has occurred if the circuit court's decision was "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
KRS 403.250(1) allows for the modification or termination of maintenance "only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." Unconscionable is defined as "manifestly unfair or inequitable." Shraberg v. Shraberg, 939 S.W.2d 330, 333 (Ky. 1997).
As the circuit court noted, Dr. Smith did not testify that Robert is unable to earn a living due to his medical condition. Instead, Dr. Smith testified Robert could return to his job as a truck driver if he follows the necessary steps to gain clearance. The circuit court reasoned that but for Robert's own neglect and failure to follow the necessary steps to maintain and regain his commercial driver's license, he could still earn between $10 and $16.50 per hour.
Robert argues his position is supported by Mudd v. Mudd, 903 S.W.2d 533 (Ky.App. 1995), in which a husband's maintenance payments were reduced based on evidence showing his income had decreased, and his ex-wife's income had increased. However, Mudd is distinguishable from the case at bar because the ex- wife's means of providing for herself improved since the divorce. Here, Robert did not provide any evidence showing Delaine's expenses have decreased, or her means to earn a living have improved. Based on the economic circumstances of the parties, we cannot say that the circuit court abused its discretion by denying to modify the maintenance award.
With respect to the attorney fees, the circuit court determined that Robert was to pay Delaine's attorney fees in the amount of $1,250. The court also confirmed the report of the DRC, which recommended an additional award to Delaine of $500 in attorney fees for her costs in bringing the motion for contempt. Robert now argues an award of attorney fees was an abuse of the circuit court's discretion because he didn't have the means to pay. We disagree.
Robert does not cite any support for his argument that the award of attorney fees was an abuse of the court's discretion. Instead, he argues that for the same reasons he believes the maintenance award to be unconscionable, he should not have to pay attorney fees.
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A circuit court has broad discretion in awarding attorney fees in a dissolution proceeding. Jones v. Jones, 245 S.W.3d 815, 821 (Ky.App. 2008) (citation omitted). After taking into account the financial resources of both parties, the court may award attorney fees when an "imbalance of such resources exists." Id. (citing KRS 403.220; Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); Glidewell v. Glidewell, 859 S.W.2d 675 (Ky.App. 1993)). Here, the circuit court determined an imbalance of resources to pay attorney fees existed, and the record supports such a finding. Accordingly, the circuit court did not abuse its discretion by requiring Robert to pay Delaine's attorney fees.
The order of the Meade Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dean H. Sutton
Louisville, Kentucky
BRIEF FOR APPELLEE: Darren Sipes
Brandenburg, Kentucky