Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)
Where first maintenance modification motion was denied,
and no modification resulted, the trial court must look at change
of circumstances since the original agreement or decree.
Res judica does not preclude the court from looking at facts and circumstances
occurring prior to the first motion for modification when no
modification was granted. In modifying an agreement
that is subject to further orders of court, the court must
examine the factors set out in Combs v. Combs to determine
whether cohabitation justifies a reduction in maintenance.
A 1979 divorce decree incorporated a settlement agreement providing husband would pay $2,000 per month in spousal maintenance until wife dies or remarries. The parties further agreed the obligation would be subject to further orders in the event that either party had a change in circumstances. Thirteen years later wife moved to increase her maintenance on the grounds that her annual income decreased and her former husband's income increased. The trial court denied the motion. In an unpublished 1985 Opinion that decision was affirmed. The agreement did not provide a specific standard so the Court applied the unconscionability standard of KRS 403.250(1).
In 2002 the husband filed a motion to terminate his maintenance or, in the alternative, to reduce it. The grounds were that the wife was now receiving social security and that she was now cohabitating with a man she began dating after the divorce. The wife filed a cross-motion to increase maintenance.
The trial court offset the husband's maintenance by the amount of social security benefits, finding that the social security was attributable to her marriage. The trial court also ruled the husband was entitled to an offset of $456 per month due to the financial benefit she received with various expenses as a result of her cohabitation. The trial court reduced the husband's maintenance from $2,000 per month to $1,000 per month.
The Court of Appeals considered whether the court erred in considering changes that have occurred prior to 1992 based upon res judicata.
In this issue of first impression, the Court noted that there was substantial authority elsewhere that a determination should be limited to whether a substantial change of circumstances occurred since the last prior modification rather than the circumstances existing on the date of the original decree. However, because maintenance was not modified in 1992, the doctrine of res judicata does not preclude the trial court from considering all of the changes which may have occurred since the original support obligation was established. Therefore, the court erred by limiting its inquiry to the consideration of only those changes that have occurred since 1992.
Further, the trial court erred in offsetting maintenance by the wife's receipt of social security benefits. Only part of her social security benefit was actually derived from her marriage. The Court of Appeals directed the trial court, upon remand, to consider in light of the changes that have occurred since 1979 whether the husband is entitled to a reduction.
Finally, with respect to the reduction in maintenance due to the financial resource of her cohabitation, the Court of Appeals directed the trial court, upon remand, to consider the elements outlined in Combs v. Combs to determine whether the cohabitation constitutes grounds for a modification of maintenance together with all of the changes that have occurred since 1979.