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

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

Published: Reversing and Remanding

County: Jessamine

FACTS:

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.

ANALYSIS:

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

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