Opinion
NO. 2013-CA-001743-MR
12-24-2014
MITCHELL W. WHITE APPELLANT v. JUDY L. WHITE APPELLEE
BRIEFS FOR APPELLANT: Julia Crenshaw Hopkinsville, Kentucky BRIEF FOR APPELLEE: Joe A. Evans, III Taylor C. Evans Madisonville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 11-CI-00552
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, KRAMER AND STUMBO, JUDGES. CAPERTON, JUDGE: Mitchell W. White appeals from the family court's award of maintenance to Judy L. White. After a thorough review of the parties' arguments, the record, and the applicable law, we reverse and remand this matter for further proceedings.
Judge Joy A. Kramer, formerly Joy A. Moore.
The parties were married for approximately 26 years before they separated on December 13, 2008. The parties have two children, both of whom had graduated college and were married at the time of the final hearing held on December 14, 2012, where the only issues remaining were maintenance and attorney fees. At the hearing, both parties were 52 years old. The family court heard testimony regarding the parties' claimed reasonable expenses and their incomes.
For the majority of the marriage, Mitchell was the primary financial earner and the parties had a comfortable lifestyle, enabling them to pay off their mortgage, take vacation trips, and save for retirement. From 1985 to 2003, Mitchell's income ranged from $36,416.00 to $57,056.02. In 2003, Judy began working full-time at Edward Jones as a Branch Office Administrator and earned $18,548.00. In 2004, his income was $60,334.00 and hers was $19,955.00. Judy's earnings steadily increased throughout the years. In 2011, she earned $39,936.00; by 2012 she had earned $46,487.76. From this, the court concluded that Judy's net income was $2960.50 per month and that her reasonable living expenses were $4,312.00 per month.
This does not include the income from the family farm, which Judy inherited; nor does it include income from Edward Jones's profit sharing plan.
In 2007 Mitchell began working for Armstrong Coal Company and his income increased to $102,618.00 in 2008. His income continued increasing. In 2012 he earned $118,913.00. The court concluded that his net income per month was $6643.00 plus a $550 monthly vehicle allowance for his truck which was used for employment purposes.
We note that the parties would have benefited from Mitchell's increased earnings with Armstrong Coal Company and Judy's earnings at Edward Jones for only one year prior to their separation.
The court determined that Judy was entitled to maintenance as she was gainfully employed but lacked the financial resources to meet her current needs independently, that further education or training would not enable her to produce sufficient income, and that Mitchell had the ability to pay maintenance while still meeting his needs. The court noted that maintenance was appropriate given the parties' 30 year marriage and the standard of living enjoyed in the marriage.
The court awarded Judy $2,700 per month, that this obligation was deemed to be an open-end award modifiable upon a showing of a change in circumstances so substantial and continuing as to make the award unconscionable, and the obligation was to terminate upon the death of either party, or upon Judy's remarriage, whichever occurred first. The court noted that the maintenance award provided Judy with a net monthly income of approximately $4,828 per month and reduced Mitchell's net monthly income to approximately $5,382. The court attached its income computations to the order, wherein it found that prior to the maintenance award, Judy's net yearly income was $35,526 compared to Mitchell's $79,711 net yearly income. After the award of maintenance, Judy's net yearly income rose to $57,943 compared to Mitchell's net yearly income of $57,987. It is from this award that Mitchell now appeals.
The court noted that he also received a $550 monthly truck allowance which was not included in the net yearly income but was included in his net monthly income.
On appeal, Mitchell argues: (1) the court made erroneous findings of fact and abused its discretion in determining that Judy's claimed monthly expenses were reasonable and supported by the evidence in light of the parties standard of living prior to separation; (2) the court abused its discretion in calculating the amount of the maintenance award; (3) the court abused its discretion in failing to provide for future reductions in the maintenance award and a date for termination of the maintenance award; and (4) the court abused its discretion in failing to recuse.
Additionally, Mitchell argues that the court abused its discretion in awarding temporary maintenance. During the separation Mitchell gave to Judy money every two weeks. Mitchell claims that this was for the college expenses of the parties' child, but Judy claims that Mitchell never informed her that this was what the money was for. In June of 2011, Mitchell stopped giving Judy money. She filed for temporary maintenance, which the court awarded in the amount of $2,000 per month. While Mitchell argues that such an order was in error, we remind Mitchell that temporary orders regarding maintenance, are interlocutory in nature and generally are not subject to appeal. See Atkinsson v. Atkinsson, 298 S.W.3d 858 (Ky. 2009) (citing Cannon v. Cannon, 434 S.W.2d 48 (Ky. 1968); and Lebus v. Lebus, 382 S.W.2d 873 (Ky. 1964)). Accordingly, we decline to address this argument further.
In response, Judy argues: (1) the family court's final order regarding maintenance was supported by substantial evidence; and (2) the court did not abuse its discretion because the presiding judge was not required to recuse from the case. With these arguments in mind, we turn to our applicable appellate standard of review.
In maintenance awards, the trial court is afforded a wide range of discretion, which is reviewed under an abuse of discretion standard. See Platt v. Platt, 728 S.W.2d 542, 543 (Ky. App. 1987). "However, a trial court's discretion is not unlimited. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). This Court will not disturb the trial court's findings of fact unless clearly erroneous. "Findings of fact are not clearly erroneous if supported by substantial evidence." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999). Substantial evidence is that evidence, when taken alone or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable people. Id., citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
Mitchell first argues the court made erroneous findings of fact and abused its discretion in determining that Judy's claimed monthly expenses were reasonable and supported by the evidence in light of the parties standard of living prior to separation. Judy argues that the court properly awarded her maintenance. With this in mind we turn to our applicable law.
KRS 403.200(1) provides that a court may grant maintenance only if it finds the spouse seeking it: (a) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment.
An award of maintenance is appropriate when a party is not able to support himself or herself in accord with the standard of living enjoyed during the marriage, and the property awarded upon dissolution of marriage is insufficient to provide for his reasonable needs. Russell v. Russell, 878 S.W.2d 24, 26 (Ky. App. 1994). KRS 403.200(1)(a) and (b) set out the required findings for an award of maintenance. "There must be a finding that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his reasonable needs; second, that spouse must be unable to support himself through appropriate employment according to the standard of living established during the marriage." Drake v. Drake, 721 S.W.2d 728, 730 (Ky. App. 1986). These specific findings are required so that the appellate court can determine the propriety of the award. See Qualls v. Qualls, 384 S.W.2d 326 (Ky. 1964).
In addition to the statutorily required specific findings, the trial court is required to consider the statutory factors in KRS 403.200(2). See Gomez v. Gomez, 168 S.W.3d 51 (Ky. App. 2005).
Once the trial court has decided that maintenance is appropriate, it must then consider all relevant factors in determining the amount and duration of maintenance pursuant to KRS 403.200(2). Such factors include the spouse's financial resources, the time needed to obtain sufficient education or training, the standard of living during the marriage, the duration of the marriage, the age and condition of the spouse seeking maintenance, as well as the ability of the paying spouse to meet his or her needs.
The duration of the award of maintenance is also within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990). However, the duration must be directly related to the period over which the need exists, and the ability to pay. Combs v. Combs, 622 S.W.2d 679, 680 (Ky. App. 1981). Further, permanent maintenance is only appropriate, "where the court finds that the spouse seeking it (1) lacks sufficient property to provide for his or her reasonable needs, and (2) is unable to support himself or herself through appropriate employment." Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986)(internal citations omitted). See Powell at 224, "[s]tatute governing maintenance awards seeks to enable the unemployable spouse to acquire the skills necessary to support himself or herself in the current workforce so that he or she does not rely upon the maintenance of the working spouse indefinitely."
In his brief, Mitchell argues that the trial court erroneously accepted Judy's claimed expenses even though they were not reasonable, citing examples such as $350 per month in gifts, generous donations, and paying for her married adult children's cell phone plans. We have reviewed the family court's order and have not found where the court considered such expenses reasonable. Indeed, the court noted that such expenses were discretionary in nature, not necessary, and did not include them in arriving at Judy's reasonable monthly expenses. Thus, Mitchell's argument is baseless. Furthermore, Mitchell argues that the court erroneously included a payment for a second car in Judy's reasonable monthly expenses. We note that while the court did include such expenses, it also included a second car payment in Mitchell's reasonable monthly expenses. We decline to say that such parity was an abuse of discretion.
Mitchell also argues that the court improperly considered the parties' increased spending power during their separation. We disagree. In its order, the court clearly considered the parties financial lifestyle prior to separation. Moreover, the court, as the trier of fact, was free to accept the testimony of Judy that during the separation Mitchell gave her money every two weeks and did not state that said money was to help pay their child's college education expenses, enabling her to enjoy the lifestyle to which she was accustomed during the marriage. Thus, we decline to reverse on this ground.
Next, Mitchell argues the court abused its discretion in calculating the amount of the maintenance award. We agree. Below, the court concluded that Judy's net income was $2960.50 per month and that her reasonable living expenses were $4,312.00 per month. We note that the difference between the two is $1351.50. Instead of ordering an amount close to the difference, the court ordered maintenance set at double the difference, $2,700.00 per month. We are mindful that the court, in its discretion, may elect to provide some cushioning in the monthly budget as illustrated by Stipp v. St. Charles, 291 S.W.3d 720, 727 (Ky. App. 2009), wherein the family court ordered a maintenance in the amount of $2,000 per month when there was an unmet need of $1,502.00 per month. We do not believe that this was the intention of the court in setting maintenance, as evidenced by the amount ordered, which was double that of the unmet need and resulted in error. As such, we must reverse on this issue and remand this matter for further proceedings.
Mitchell offers this Court two possibilities to explain such a figure: (1) while the court below was adamant that it was not equalizing the parties' income, the practical effect, as detailed by the court's own income computation, was to bring the parties' incomes almost into parity; or (2) the court took into account the discretionary expenses it had excluded in arriving at Judy's reasonable monthly expenses. We agree with Mitchell that either possibility would be unsupported by our jurisprudence. However, we believe that the court was simply overly generous with its award of maintenance to Judy.
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Mitchell next argues the court abused its discretion in failing to provide for future reductions in the maintenance award and a date for termination of the maintenance award. Given our reversal, we believe that this matter to be appropriate to address on remand, especially in light of the parties' proximity to retirement age.
Last, Mitchell argues that the court abused its discretion in failing to recuse as the judge and Judy attended the same church. Judy argues that the court was not required to recuse and informs this Court that Mitchell also attended the same church as the judge and Judy.
Kentucky Revised Statutes (KRS) 26A.015(2)(a) requires the disqualification of a judge in certain circumstances, including "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding[.]" In Bissell v. Baumgardner, 236 S.W.3d 24 (Ky. App. 2007), this Court made it clear that "[t]he burden of proof required for recusal of a trial judge is an onerous one." Id. at 28-29, quoting Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001). The Court went on to confirm that "[t]here must be a showing of facts 'of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Id. at 29, quoting Stopher, 57 S.W.3d at 794. "A party's mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds to require recusal." Webb v. Commonwealth, 904 S.W.2d 226, 230 (Ky. 1995) (citation omitted).
Sub judice, we do not believe that Mitchell has sustained his burden of proof. Given that both parties attended the same church as the judge and the judge was very clear that she was not in a personal relationship with Judy, that she knew of no personal details of either party other than that contained in the pleadings, and that it was her stringent practice to avoid out of court discussions with all persons regarding all cases, and that she was unbiased towards either party, we cannot say that she was required to recuse. Thus, we decline to reverse on this ground.
In light of the aforementioned, we reverse and remand this matter for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia Crenshaw
Hopkinsville, Kentucky
BRIEF FOR APPELLEE: Joe A. Evans, III
Taylor C. Evans
Madisonville, Kentucky