Opinion
NO. 2010-CA-001951-MR
02-21-2014
DANNY WAYNE MASENGALE APPELLANT v. TAMMY JOHNSTON MASENGALE APPELLEE
BRIEF FOR APPELLANT: Matthew R. Malone Jacob K. Michul Lexington, Kentucky BRIEF FOR APPELLEE: Crystal Osborne Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 09-CI-05764
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE, CAPERTON, AND VANMETER, JUDGES. VANMETER, JUDGE: Danny Wayne Masengale appeals from a judgment of the Fayette Circuit Court dissolving his marriage to Tammy Johnston Masengale and awarding Tammy lifetime maintenance in the amount of $800 per month. For the following reasons, we affirm.
Danny and Tammy Masengale were married in 1983, and Tammy filed for dissolution in October 2009. At the time the decree of dissolution was entered, September 29, 2010, the parties had no minor children. The trial court found that Tammy met the statutory requirements for an award of maintenance. Based on the length of the marriage, Tammy's poor health, limited work-history, and earning capacity, and Danny's greater earning capacity, the trial court ordered Danny to pay maintenance of $800 a month for the remainder of Tammy's life.
In setting the amount of maintenance, the trial court found that Danny's monthly expenses at the time of trial were $2,566, but that amount would decrease by $350 a month after the final decree was entered because he would no longer be responsible for Tammy's health insurance. It also found that Tammy had been self-employed in a Pampered Chef business for over 14 years, but had not worked full time in 2010 due to health problems. The court accepted Tammy's testimony that she expected to return to full-time work by September 2010, and earn approximately $20,000 for the year. The trial court found that Tammy had reasonable monthly expenses of $2,617, and that she did not have sufficient property to meet her needs, and could not support herself through reasonable employment as she had never earned more than $20,000.
The sole issue on appeal is the amount and duration of the maintenance awarded to Tammy. Once the court determines that maintenance is appropriate per KRS 403.200(1), KRS 403.200(2) further directs the court to consider the following factors in setting the amount and duration of maintenance:
Kentucky Revised Statutes.
(a) The financial resources of the party seeking maintenance, including marital property apportioned to [her], and [her] ability to meet [her] needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;In determining maintenance, trial courts must consider the factors set out in KRS 403.200(2). However, the statute does not require the court to make specific findings of fact as to each relevant factor. Drake v. Drake, 721 S.W.2d 728 (Ky. App. 1986). Moreover, the amount and duration of the maintenance award are matters within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990). "As an appellate court... this [c]ourt 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." Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999) (internal quotations omitted). A reviewing court may disturb the trial court's order only if the trial court exceeded 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).
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
Danny appeals the trial court's maintenance award on four grounds. Danny first argues that the maintenance award was based upon an erroneous income that is not based on substantial evidence and does not reflect his actual income or earning capacity. Second, he argues that the court exceeded its discretion by considering fault in determining the amount and duration of maintenance. Third, he argues that the trial court failed to consider Tammy's ability to acquire the skills necessary to support herself. Lastly, he argues that the trial court failed to take into account Tammy's significant non-marital property.
First, Danny argues that an improper income was used to calculate the amount of maintenance. We do not find the trial court's finding of fact on this issue to be clearly erroneous. The trial court clearly and succinctly stated in its findings of fact that Danny "should be earning and can earn" $60,000 per year. This finding is not clearly erroneous, and appears to be supported by substantial evidence. The trial court carefully considered the evidence of Danny's earnings prior to and following his DUI conviction when deciding the amount of maintenance to be awarded. Further, we may not substitute our judgment as to the weight of the evidence, since this determination is within the discretion of the trial court. Leveridge, 997 S.W.2d at 2. Even though an alternative result could have been reached based upon the evidence, this court may not reverse the trial court's finding absent an abuse of discretion, and we find none here.
Second, we do not agree that the court exceeded its discretion in awarding the amount and duration of maintenance by taking "fault" into consideration. Danny's argument that the trial court impermissibly considered "fault" in setting maintenance is based on the following passage from the trial court's judgment: "the Court must take into consideration that Mr. Masengale's conduct (DUI) led to him having to take a reduction in pay and this was his own fault and Ms. Masengale should not be made to pay for it." In our view, and although the trial court used the word "fault," the trial court was actually addressing "the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance." KRS 403.200(2)(f). We agree with Tammy that the trial court used Danny's fault, his conduct in receiving a DUI, as an indicator that he was underemployed and thus was capable of earning $60,000 per year. KRS 403.200(2)(f) speaks to an "ability...to meet his needs," not to actual earnings. Thus, the trial court properly set maintenance based on its implicit finding that Danny was underemployed, and his ability to meet his needs was equivalent to an annual income of $60,000.
While we disagree with Danny's assertion that the trial court used "fault," i.e., conduct which undermined the marital relationship, as a basis for determining the amount of maintenance, Kentucky cases interpreting KRS 403.200 do not appear to support Danny's position that "fault" may not be considered. See Tenner v. Tenner, 906 S.W.2d 322 (Ky. 1995) (reinstating trial court judgment reducing maintenance award based on recipient's adultery); Chapman v. Chapman, 498 S.W.2d 134, 138 (Ky. 1973) (holding that "fault is not to be considered in determining whether a spouse is entitled to maintenance but it may be considered insofar as the amount is concerned."). Further, the case of Platt v. Platt, 728 S.W2d 542, 543-44 (Ky. App. 1987), cited by Danny, does not compel a different result.
The trial court carefully considered each of the factors listed in KRS 403.200(2) in awarding Tammy lifetime maintenance of $800 per month. Given her financial resources, health, duration of the marriage, and Danny's financial resources, the court concluded that such an award was appropriate. We believe substantial evidence supports the trial court's decision.
Third, Danny argues that the trial court failed to consider Tammy's ability to acquire the skills necessary to support herself. We disagree. The trial court considered Tammy's work-history, age, and poor health in making its decision. Based on the record, the conclusion that Tammy is unable to support herself, or acquire the skills necessary to support herself, was not unreasonable. Tammy's health problems and limited employment history make it unlikely that she will be able to sufficiently support herself in the future.
Finally, Danny contends that the trial court failed to consider Tammy's substantial non-marital property. Again, we disagree. The trial court recognized that Tammy owns her residential home in Lexington and unimproved land in Washington County, Kentucky. However, the court cannot require one to liquidate assets in order to maintain the standard of living established during the marriage. Perrine v. Christine, 833 S.W.2d 825, 827 (Ky. 1992). The trial court's evaluation of the sufficiency of Tammy's property is given great weight, and the trial court here found that Tammy has insufficient property to meet her needs. This finding was within the trial court's discretion; we do not find any abuse of that discretion.
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, DISSENTING: I respectfully dissent. In addressing the arguments of the parties on this issue, I note that the maintenance statute does not explicitly include a provision authorizing the trial court to impute income. However, this Court has held that KRS 403.200 implicitly permits a court to impute income to a voluntarily unemployed or underemployed spouse. McGregor v. McGregor, 334 S.W.3d 113, 117 (Ky. App. 2011). The court's authority to impute income does not serve to punish a spouse for reductions in his or her income during the marriage and indeed, "fault" is simply not one of the relevant factors for the court's consideration in awarding maintenance for the purpose of imposing an amount of maintenance greater than what the statute would legitimately allow. See Platt v. Platt, 728 S.W.2d 542, 543-44 (Ky. App. 1987). Ultimately, the court's authority to impute income is a means to maintain the status quo established during the marriage and to discourage a party from voluntarily reducing his or her income to reduce or avoid a support obligation.
Sub judice, there is no evidence that Danny intentionally sought to reduce his income to avoid paying maintenance to Tammy. I agree with the trial court that Danny is responsible for the consequences of his DUI. However, absent evidence that Danny intentionally obtained the DUI for the purpose of lowering his income to reduce or avoid maintenance or support obligations, I cannot agree that the "consequences" of the DUI include an award of maintenance not otherwise supported by the statute.
If it could be shown that Danny intended to reduce his income to avoid maintenance or support, then the relevance of that action as well as the weight placed thereon by the trial court in calculating maintenance and/or support must be reasonable and proportionate to the degree of Danny's fault.
Not every reduction in income from voluntary choices warrants a finding of voluntary underemployment. See Bickel v. Bickel, 95 S.W.3d 925 (Ky. App. 2002). Danny's demotion should instead be considered an ordinary fluctuation or reduction in Danny's income rather than voluntary underemployment. Moreover, the decision to impute income to Danny works a significant hardship on him. As of the time of trial, Danny's reasonable expenses and maintenance obligation exceeded his current income. As noted above, KRS 403.200(2) requires the trial court to consider Danny's ability to pay. See also Dotson v. Dotson, 864 S.W.2d 900, 903 (Ky. 1993). While the trial court believed that Danny still retained the capacity to earn more income, it could only suggest that Danny may have to take a second job to meet his reasonable needs and maintenance obligation.
Consider a situation wherein a couple is married, and the fact that an act taken reduces the income of either party and consequently, reduces the income available to both. There is little difference between such a situation and one where the parties are divorcing or divorced absent a showing of intent to reduce the income for the purpose of reducing the income available to the other.
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Although KRS 403.200 contemplates that the court should consider a parties' earning capacity, it does not require that a party work more than full time to maintain a standard of living previously established during the marriage. See Gossett v. Gossett, 32 S.W.3d 109 (Ky. App. 2000). The trial court may modify maintenance under KRS 403.250 if Danny's earning capacity later recovers, but under the circumstances presented in this case I would find that the trial court exceeded its discretion by imputing income to Danny based on the reduction of income necessitated by the DUI.
I now turn to Danny's next argument on appeal, specifically that the trial court failed to consider Tammy's earning capacity and ability to work, as required by KRS 403.200(b) and (e).
Danny contends that the trial court failed to address whether Tammy's current employment was reasonable and whether she is capable of earning more after a period of short-term maintenance for rehabilitation. He argues that the court made no finding as to whether Tammy may be employed to her maximum potential, and that the fact that she may not be able to fully support herself now does not mean that she does not have the potential and the obligation to eventually do so.
In response, Tammy asserts that the trial court did not exceed its discretion in awarding maintenance because she cannot support herself through reasonable employment as a result of her health problems. She also disputes that the sale of her property would be sufficient to support her in the manner necessary to cover reasonable life expenses.
In addressing these arguments, I agree with Danny that KRS 403.200 seeks to enable the unemployed spouse to acquire the skills necessary to support herself in the current workforce so that she does not rely upon the maintenance of the working spouse indefinitely. Clark v. Clark, 782 S.W.2d 56, 61 (Ky. App. 1990). Nevertheless, "the duration of maintenance must have a direct relationship to two factors: (1) the period over which the need exists, and (2) the ability to pay." Combs v. Combs, 622 S.W.2d 679, 680 (Ky. App. 1981).
I believe that the trial court properly considered the appropriate factors in applying KRS 403.200(2). This was a long-term marriage of 27 years. Tammy remained at home raising the children and keeping house during the early part of the marriage. Tammy later became self-employed and worked from home as a sales consultant for Pampered Chef. The trial court expressly found that Tammy never earned more than $20,000 per year from this employment.
The court also noted that Tammy had recently suffered a second heart attack which resulted in her having double bypass surgery. Although Tammy hoped to be fully recovered and back to full-time work within a few months, the trial court concluded that her health problems and limited employment history limited her earning capacity. The trial court also determined that most of Tammy's expenses were reasonable. Danny does not contest any of these findings. Nevertheless, I agree with Danny that the trial court failed to consider Tammy's significant non-marital property in determining the amount and duration of maintenance. Tammy inherited a residence in Lexington, where she now resides, which has no mortgage, as well as unimproved land in Washington County, Kentucky. Danny contends that the trial court should have considered these assets in determining the amount and duration of maintenance.
While it is true that Tammy may develop other expenses if the properties are sold or otherwise made unavailable for Tammy's use, certainly a balancing by the court of what potential expenses she might incur, the value of the properties, and all other relevant factors should be considered in awarding maintenance and the amount thereof. The trial court must be cognizant of the fact that Tammy is not required to liquidate assets in order to maintain a standard of living established during the marriage. Perrine v. Christine, 833 S.W.2d 825, 827 (Ky. 1992). On the other hand, Tammy cannot claim a need for maintenance while allowing a significant asset, for instance the property previously operated as a farm, to lay idle for an extended period of time. At the very least, the trial court must consider what, if any, potential income this property might produce in determining the amount and duration of maintenance.
Danny's argument concerning the amount of the maintenance combined with Tammy's potential earnings and anticipated social security is well-taken. Certainly any change in Tammy's income from another source will have an impact on the amount or continuation of the maintenance. Accordingly, I would remand for additional factual findings on this issue and reconsideration of the determination of the amount and duration of Danny's maintenance obligation, if any. BRIEF FOR APPELLANT: Matthew R. Malone
Jacob K. Michul
Lexington, Kentucky
BRIEF FOR APPELLEE: Crystal Osborne
Lexington, Kentucky