Applicability of New Spouse’s Income and Expenses for Children of New Marriage in Modification of Maintenance Award to Former Spouse, Case Digest, Tudor v. Tudor, Ky Court of Appeals

Chauncey J. Tudor v. Melanie K. Tudor, No. 2012-CA-000110-MR

Published: Reversing and Remanding

County: Jessamine


Husband and
Wife initiated divorce proceedings in 2009. After extensive hearings and a
trial, Husband was ordered the custodial parent and ordered to pay $1,700 per
month in maintenance for ten years. The divorce decree was entered in 2009.

In 2011,
Husband filed a motion seeking disclosure of financial documents and motions
for modification of child support and maintenance. The trial court’s findings
of fact and conclusions of law only addressed Husband’s maintenance obligation.
Relying primarily on the income of Husband’s new wife and citing expenses
relating to their marriage and the children of their marriage, the court
determined that the maintenance obligation should not be altered because the
payment amount was not unconscionable. Husband appealed.


The issue
presented to the court was whether a new spouse’s income, and the couple’s ability
to provide for children of the new marriage, should be considered when
determining whether maintenance owed to the former spouse should be modified. KRS
403.250(1) states that maintenance obligations may be modified “upon a showing
of changed circumstances so substantial and continuing as to make the terms
unconscionable.” When a party seeks to modify maintenance obligations, the
court compares the parties’ current circumstances to the circumstances at the
time the decree was entered. Modification of maintenance looks solely to
whether the obligor’s circumstances have changed in a substantial and
continuing way such that the order is rendered unconscionable. 

The trial
court in this case determined that the Husband was earning $96,000 per year at
the time the decree was entered, and Husband earned only $48,000 per year when he
sought modification of the maintenance award. Rather than focusing on the
income of Husband’s new wife and expenses relating to his new children, the
trial court should have focused on whether the change in Husband’s income is
substantial and continuing such that the award is unconscionable. If the trial
court is determining whether the award should be reduced, the trial court may
consider the extent to which Husband’s relevant expenses have been reduced as a
result of his new marriage. Although not raised in this case, whether an
obligor is voluntarily underemployed or whether retirement, if applicable, was
reasonable could prevent the modification of a maintenance award.

Judge Maze
wrote separately, concurring in the judgment. The trial court misapplied the
facts to the law in this case because a spouse’s decision to remarry and start
a new family does not relieve the spouse of the obligation to pay maintenance
awarded to a former spouse. The new spouse has no obligation to contribute to
the former spouse’s support. However, other facts in the case could support the
trial court’s decision to deny the maintenance modification. The trial court
should examine further on remand whether Husband’s income resulted from
voluntary underemployment, general economic conditions, his own choices, or
some combination thereof. Evidence that Husband in the past found well-paying
employment in auto sales even during difficult economic and personal
circumstances could indicate that Husband failed to show that the change in his
circumstances is not likely to be substantial and continuing.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana
L. Skaggs + Associates