Laure Ryan (Formley Known as Laure Whiteley) v. James Whiteley, Jr. ( 2022 )

RENDERED: OCTOBER 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0129-MR
LAURE RYAN (FORMERLY
KNOWN AS LAURE WHITELEY) APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 19-CI-501893
JAMES WHITELEY, JR. APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON,
JUDGES.
THOMPSON, L., JUDGE: Laure Ryan, formerly known as Laure Whiteley,
(“Appellant”), appeals from findings of fact, conclusions of law, and decree of
dissolution of marriage entered by the Jefferson Circuit Court, and from an order
denying her motion to alter, amend, or vacate. She argues that the circuit court
erred in limiting the award of maintenance to 8 years. She also asserts that the
court made erroneous findings. After careful review, we conclude that the circuit
court erred in limiting the duration of the award. Accordingly, we affirm in part,
reverse in part, and remand the findings of fact, conclusions of law, and decree of
dissolution of marriage on appeal.
FACTS AND PROCEDURAL HISTORY
Appellant and James Whiteley, Jr. (“Appellee”) were married in 1997.
Appellant, who is now approximately 52 years old, was a registered nurse prior to
the marriage and has maintained her nursing license. During the marriage, she
worked limited hours, but for most of the marriage was a stay at home mother.
She has not worked outside the home in 13 years. Appellant suffers from a myriad
of debilitating medical conditions, including a congenital defect of the chest which
compresses her heart and lungs. At age 14 she underwent reconstructive surgery
for the condition, which was not successful. She also suffers from scoliosis, which
has caused life-long back pain. As an adult, she was in a car accident which
fractured her hip, pelvis, and foot. Appellant suffers from severe migraine
headaches, post traumatic stress disorder, depression, and anxiety, and as of 2020
was taking 22 medications per day.
Appellee is an approximately 53-year-old surgeon. In 2019, he earned
over $500,000.
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The parties separated in 2019, and Appellant filed a petition for
dissolution of marriage in Jefferson Circuit Court. The Jefferson Circuit Court
rendered findings of fact, conclusions of law, and decree of dissolution on
December 7, 2020. The decree addressed all pending issues, including the
disposition of marital assets and debts, the parties’ living expenses, custody and
parenting time, child support and maintenance, and the parties’ competing motions
for contempt which were both denied.
On the issue of maintenance, the court recounted Appellant’s serious,
chronic health issues, and noted that though she retained a nursing license and
earned some income during the marriage, for the most part she was primarily
engaged in the upbringing of the parties’ children. The court found that Appellant
had not worked outside the home for 13 years.
Regarding Appellant’s ability to work, Appellant was evaluated by
Linda Jones, a certified rehabilitation counselor and vocational expert. Jones’
report stated her belief that Appellant was not able to work outside the home at this
time nor in the foreseeable future due to Appellant’s severe medical conditions.
Jones noted that the field of nursing has substantially changed since Appellant last
worked as a nurse. Jones also stated that under Social Security guidelines, nursing
is categorized as requiring “medium” physical activity which requires standing or
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walking most of the day and lifting up to 50 pounds. Jones opined that Appellant
was not able to meet this level of exertion.
Robert Tiell is also a vocational expert. He did not examine
Appellant, but considered Jones’ report just prior to trial. Tiell opined that
Appellant has “a few medical issues” and no functional impairment rating.
In determining whether to award maintenance to Appellant, the circuit
court relied on the elements set out in Kentucky Revised Statutes (“KRS”) 403.200
and Browning v. Browning, 551 S.W.2d 823, 825 (Ky. App. 1977). The court
found that Appellant has monthly expenses of $9,000, and income from a trust
account of $870 per month, resulting in a deficit of $8,130 per month. It
recognized that Appellant suffers from a myriad of debilitating medical conditions,
and did not find her to be voluntarily unemployed. The court found that it could
not predict whether Appellant could return to work in the future, as it was possible
she could have successful medical treatment restoring her ability to return to the
workforce. The court ordered Appellee to pay $8,130 per month in maintenance to
Appellant for a period of 8 years. It noted that the maintenance was modifiable in
the future per KRS 403.250 if Appellant’s health did not improve. Maintenance
was to terminate on either party’s death, or Appellant’s remarriage. The court
denied Appellant’s motion to alter, amend, or vacate the findings of fact,
conclusions of law, and decree, and this appeal followed.
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STANDARD OF REVIEW
We review the circuit court’s award of maintenance for an abuse of
discretion. Browning, supra; McGregor v. McGregor, 334 S.W.3d 113, 118-19
(Ky. App. 2011). To constitute an abuse of discretion, the circuit court’s decision
must be “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The
circuit court’s findings of fact will not be disturbed unless they are clearly
erroneous. Kentucky Rules of Civil Procedure (“CR”) 52.01. “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) (citation omitted). Substantial
evidence is evidence which, when taken alone or in light of all the evidence, has
sufficient probative value to induce conviction in the minds of reasonable
people. Id. The circuit court’s conclusions of law are reviewed de novo. Stipp v.
St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009).
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in limiting the award of maintenance to 8 years. She argues that the award’s
limited duration conflicts with the circuit court’s findings, is unsupported by the
record, and is therefore arbitrary. Appellant contends that the circuit court
improperly placed the burden on her to modify maintenance in the future to extend
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its duration, when the evidence requires an open-ended award to be modified in the
future, if at all, by Appellee. Appellant also argues that the court made erroneous
findings adversely impacting the amount and duration of the award. She seeks an
opinion reversing the order of maintenance and remanding the matter for an award
of permanent maintenance.
KRS 403.200 states,
(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked
personal jurisdiction over the absent spouse, the court
may grant a maintenance order for either spouse only if it
finds that the spouse seeking maintenance:
(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 or is the custodian of a child whose
condition or circumstances make it appropriate that
the custodian not be required to seek employment
outside the home.
(2) The maintenance order shall be in such amounts and
for such periods of time as the court deems just, and after
considering all relevant factors including:
(a) The financial resources of the party seeking
maintenance, including marital property apportioned
to him, and his ability to meet his needs
independently, including the extent to which a
provision for support of a child living with the party
includes a sum for that party as custodian;
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(b) The time necessary to acquire sufficient education
or training to enable the party seeking maintenance to
find appropriate employment;
(c) The standard of living established during the
marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition
of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance
is sought to meet his needs while meeting those of the
spouse seeking maintenance.
In examining the issue of maintenance, the Jefferson Circuit Court
directly or indirectly considered each of the factors set out in KRS 403.200(2).
The court examined the financial resources of the parties, their marital resources,
ability of each party to meet his or her needs independently, and child support.
KRS 403.200(2)(a). It considered Appellant’s ability to find suitable employment,
and noted that she had not worked outside the home in at least 13 years and her
physical maladies greatly impacted her ability to work. KRS 403.200(2)(b). The
court considered the standard of living during the marriage and its duration,
including the parties’ assets, the value of the marital home, and Appellee’s income.
KRS 403.200(2)(c) and (d). The court acknowledged the medical evidence which
demonstrated that Appellant is “severely symptomatic,” “has difficulty breathing
with exertion,” and is “disabled from a cardiac standpoint . . . due to severe
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restrictive lung disease.” It expressly found that Appellant’s “prognosis is poor.”
KRS 403.200(2)(e). Lastly, the court found that Appellee possessed the ability to
meet his own needs while providing maintenance to Appellant. The court
calculated that Appellee would have a net monthly income in the amount of
$19,167, after paying maintenance. KRS 403.200(2)(f).
After considering the factors set out in KRS 403.200(2), the circuit
court concluded that it could not, nor was it required to, predict whether Appellant
could return to work after successful medical treatment and what impact that might
have on her financial circumstances. It was on this basis that the court limited the
duration of the award to 8 years, and ruled that it would be modifiable in the future
per KRS 403.250 if she were not able to provide for herself through appropriate
employment.
The question for our consideration is whether the Jefferson Circuit
Court properly limited the award of maintenance to 8 years, subject to later
modification upon changed circumstances. After closely examining the record and
the law, and with due regard to the circuit court’s sound discretion in the
application of KRS 403.200, McVicker v. McVicker, 461 S.W.3d 404, 420 (Ky.
App. 2015), we conclude that the court’s limitation of the duration of the
maintenance award is arbitrary, unreasonable, unfair, or unsupported by sound
legal principles per English, supra.
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We base this conclusion primarily on two factors. First, the record
demonstrates, and the circuit court so found, that Appellant suffers from a myriad
of serious, intractable health issues which adversely affect her ability to participate
in gainful employment. The uncontested medical evidence indicates that Appellant
is severely symptomatic and suffers from acute restrictive lung disease and several
other severe conditions. The circuit court found that Appellant is
now severely symptomatic with significant . . .
disabilities affecting more than 50% of her neurologic,
cardiac, pulmonary, and emotional systems. She has
difficulty breathing with exertion, tachycardia and heart
palpitations, dizziness, numbness, swelling, and
discoloration of her extremities. Her cardiologist has
determined that she is disabled from a cardiac standpoint,
while her pulmonologist has determined that she is
disabled due to severe restrictive lung disease.
Ms. Whiteley was also born with scoliosis which
has caused life-long back pain. In 1995, she was
involved in a serious car accident and broke her back in
three locations (T4, T9, and L3). She also fractured her
left hip, right pelvis, and right foot. She required a full
body cast to heal. Ms. Whiteley’s back problems have
also progressed. Her orthopedic specialist, Joseph
Werner, M.D., has advised her to avoid heavy lifting,
twisting, and bending. He says that she can expect
increased pain in her neck and lumbar region with sitting
or sedentary work. Ms. Whiteley was referred for back
surgery in September 2020, which she has not yet
scheduled.
Ms. Whiteley also suffers from severe migraine
headaches, which require monthly injections. She also
suffers from post-traumatic stress disorder, anxiety, and
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depression. In total, she takes 22 different medications
for treatment of her various medical conditions.
(Internal quotation marks and footnotes omitted.)
A medical evaluation conducted in 2015 found that Appellant has
“severely disabling symptoms, severe deformity, and significant right heart
compression.” This affliction is congenital and progressive, having affected
Appellant since childhood. The circuit court found that “Ms. Whiteley’s recent
medical records show that her condition has progressed[,]” and that “her prognosis
is poor.” Because the medical record does not predict a recovery sufficient to
sustain employment, there is no reasonable basis for limiting the maintenance
award to 8 years.
Second, vocational expert Jones evaluated Appellant, and concluded
that Appellant was not able to work outside the home at this time nor in the
foreseeable future due to her severe medical conditions. Jones hypothesized that
Appellant might engage in sedentary employment if she had surgery and her health
improved. Appellant, however, had unsuccessful reconstructive surgery in the
past, and the record indicates that any additional surgery implicated a significant
risk of pulmonary failure and death. Vocational expert Robert Tiell gave a more
favorable opinion of Appellant’s prospects, going so far as to opine that she could
return to work immediately despite her medical conditions, though he did not
evaluate Appellant and only considered Jones’ report shortly before trial.
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The facts of this case somewhat parallel those of Powell v. Powell,
107 S.W.3d 222 (Ky. 2003). Powell was a dissolution proceeding where
maintenance was contested. Husband was a medical doctor who earned almost
$600,000 per year, and wife was a former nurse who took care of the children and
did not work outside the home. Wife, who was around 50 years old, suffered from
back injuries which limited her ability to work outside the home, but was found to
have the ability to return to the workforce making $45,000 per year after
completing continuing education. The circuit court awarded maintenance to the
wife in the amount of $3,000 per month for three years, which it believed gave her
sufficient time to become reestablished in the workforce. The Court of Appeals
affirmed upon finding that the award did not constitute an abuse of discretion. On
appeal, the Kentucky Supreme Court concluded that both the amount and duration
of the award constituted an abuse of discretion. It based its conclusion in part on
the 18-year duration of the marriage, the disparity in the respective incomes, and
the standard of living established during the marriage.
Appellant herein has chronic medical conditions far more severe than
those of the wife in Powell; Appellant’s marriage was 5 years longer than the
marriage in Powell; and, unlike the wife’s ability to return to the workforce within
one year in Powell, Appellant’s prospects of reemployment are poor. While
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Powell is not controlling under the instant facts, it provides guidance in the
application of KRS 403.200 to the facts before us.
Alternatively, Appellant argues that if we find that the circuit court
correctly applied KRS 403.200, it improperly found that Appellant has a monthly
income of $870 from her nonmarital account, with monthly expenses totaling
$9,000. Appellant contends that the circuit court also failed to clarify its finding
on the family’s monthly spending prior to the filing of the petition, and should
have found the parties enjoyed a high standard of living and spent approximately
$26,540.50 a month. Appellant argues that the circuit court improperly considered
the 5-year average of her nonmarital account rather than its current interest and
dividends, and did not consider current gains and losses in its calculations. She
also asserts that even with the maintenance award of $8,130 per month, she is in a
much less advantageous financial position than is Appellee who the circuit court
found has an income of over $500,000 per year. Appellant contends that had the
circuit court undertaken a correct analysis of the record, it would have found her
monthly expenses to be $11,023 per month. She maintains that Appellee could
have afforded a higher maintenance obligation, and even if he paid 35% of his net
income in maintenance, he would still retain over $20,000 per month after taxes.
Appellant submitted several pages of arguments and calculations
detailing why she believes she is entitled to more than $8,130 per month in
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maintenance. The question for our consideration on this issue is not whether the
record would support a higher award, but rather whether the circuit court’s award
constitutes an abuse of discretion. Browning, supra. The circuit court conducted a
thorough examination of the parties’ employment histories, assets and liabilities,
Appellant’s medical conditions, and reasonable living expenses both before and
after dissolution. These findings are memorialized in the findings of fact,
conclusions of law, and judgment on appeal. The court was also well aware of the
property and assets awarded to Appellant, including half of the assets of the marital
home after the mortgages, IRAs of about $300,000, a Roth IRA valued at about
$25,000, a life insurance policy, money market funds, child support of $3,300 per
month, $50,000 in attorney fees, and none of the marital debt. Based on the
totality of the record and the law, we cannot conclude that the amount of the
maintenance award was erroneous, and find no error on this issue.
CONCLUSION
Given the medical evidence and the circuit court’s findings that
Appellant’s condition is worsening and her prognosis is poor, and in light of the
factors set out in KRS 403.200 and the Kentucky Supreme Court’s application of
those factors in Powell, it is unreasonable per English to limit the award of
maintenance to 8 years. At the conclusion of that 8 year period, Appellant will be
about 60 years old, and it is more likely than not that her severe, debilitating
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medical conditions will not have substantially improved. Should Appellant be able
to rejoin the workforce after additional surgery or other treatment, or if the parties’
circumstances otherwise change, Appellee may move to reduce or eliminate the
award per KRS 403.250. We find no error in the amount of the award.
For these reasons, we reverse the findings of fact, conclusions of law,
and decree of dissolution of marriage on the issue of maintenance, and remand the
matter for an award of maintenance consistent with this Opinion. The findings of
fact, conclusions of law, and decree of dissolution of marriage are in all other
respects affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Allen McKee Dodd Corey Shiffman
Louisville, Kentucky Christine Shiffman
Louisville, Kentucky
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