Note: This "to be published" case is not final; a motion for discretionary review has been filed:
Massey v. Massey, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2517525 (Ky. App.
Issues and Holdings:
1) Whether a maintenance order that is subject to modification is an open-ended award rather than lump sum. The Court held yes, such an order is an open-ended maintenance award.
2) Whether the family court’s order permitting modification of maintenance only if the former wife’s income increased was authorized by the maintenance modification statute. The Court held no, such an order is not permitted under the statute.
3) Whether the amount of maintenance awarded was adequate. The Court held yes, the award was adequate.
4) Whether the family court’s findings were sufficient to support the five-year duration of the maintenance award. The Court held no, the court’s findings were insufficient.
The parties were married on August 21, 1982 and divorced on September 3, 2004. Lisa, the Appellant, was 41-years-old at the time of the divorce. One child was born of the marriage. The court awarded Michael sole custody of the child. Lisa was granted visitation, and ordered to pay $175 per month in child support. Lisa was awarded maintenance of $1200 per month, which was to be offset by her child
support obligation, for two years, $750 per month for the next two years, and $500 per month for the last year. The court ordered that the maintenance award would be reviewable if Lisa received any awards from her personal injury cases. Lisa filed a motion to amend, alter or vacate the court’s order, which was denied. Lisa appealed.
Lisa argued on appeal that the trial court abused its discretion by ordering the lump sum maintenance award to be modified only if Lisa’s finances improved. Lisa argued that the award should be modifiable if her finances worsened. The Court first noted that the maintenance award was open-ended rather than a lump sum, since the award was subject to modification. Next, the Court stated that modification of open-ended maintenance awards is governed by KRS 403.250(1). In essence, said awards may be modified by two methods: 1) by agreement of the parties pursuant to a separation agreement, or 2) changed circumstances so substantial and continuing as to make the terms of the award unconscionable. Therefore, the family court’s order allowing modification of the award only if Lisa’s financial situation improved was contrary to the requirements of the statute.
Lisa also argued that the family court erred as to the amount and duration of the maintenance award. Lisa argued that the award should have been permanent and that the amount was inadequate. The Court first noted that the amount and duration of a maintenance award is within the discretion of the trial court, and an award will not be overturned on appeal unless the trial court abused its discretion. The Court, after reviewing the record, noted that the family court did consider the factors set out in KRS 403.200, and therefore did not abuse its discretion as to the amount of maintenance set.
In regards to the duration of the award, the Court held that the family court did abuse its discretion. The family court’s findings were insufficient to support the duration of the maintenance award for a term of 5 years, because the court failed to make a finding as to whether Lisa was permanently disabled and her ability to gain future employment.
Accordingly, the Court affirmed in part, reversed in part, and remanded the case for a new award of maintenance consistent with the opinion.