Tudor v. Tudor , 399 S.W.3d 791 ( 2013 )

OPINION

CAPERTON, Judge:

The appellant, Chauncey Tudor, appeals a Jessamine County Circuit Court order denying his request to modify the amount of monthly maintenance owed to the appel-lee, Melanie Tudor. The circuit court determined that the maintenance payments owed by Chauncey were not rendered unconscionable as a result of changed circumstances. However, the court improperly considered the income of Chaunce/s new spouse and we reverse and remand for proceedings consistent with this opinion.

On February 5, 2008, Chauncey and Melanie initiated the dissolution of their marriage. On March 26, 2009, after extensive hearings and a trial, the circuit court entered findings of fact and conclusions of law. Chauncey was named the custodial parent and was ordered to pay maintenance in the amount of $1,700 per month for ten years. On April 20, 2009, the court entered a decree for the dissolution of the marriage.

On January 5, 2011, Chauncey filed a motion to require disclosure of financial documents, a motion to modify child support, and a motion to modify maintenance.¹ The court held a hearing on November 29, 2011, and entered findings of facts and conclusions of law on December 19, 2011. The court’s order did not discuss the modification of child support and only addressed Chauncey’s maintenance obligation. Likewise, this appeal only concerns the modification of maintenance. Ultimately, the court determined the maintenance obligation should not be altered because the payment amount was not unconscionable.

Maintenance payments may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Kentucky Revised Statutes (KRS) 403.250(1). Maintenance becomes unconscionable if it is “manifestly unfair or inequitable.” Combs v. Combs, 787 S.W.2d 260, 261 (Ky.1990). “To determine whether the circumstances have changed,- we compare the parties’ current circumstances to those at the time the court’s separation decree was entered.” Block v. Block, 252 S.W.3d 156, 160 (Ky.App.2008).

The circuit court’s decision to decline modification of the maintenance award is reviewed for abuse of discretion. Id. at 159. We may only disturb the court’s conclusion if it “abused its discretion or based its decision on findings of fact that are clearly erroneous.” Powell v. Powell, 107 S.W.3d 222, 224 (Ky.2003). The circuit court abuses its discretion when its decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Arbrip v. Noe, 311 S.W.3d 229, 232 (Ky.2010). While the circuit court’s factual findings are given deference, questions of law are reviewed de novo. Block, 252 S.W.3d at 159.

This case presents a novel legal issue. Specifically, should a new spouse’s income, and the couple’s ability to provide for the children of their marriage, be considered when determining if maintenance owed to the former spouse should be modified? In this case, the circuit court determined that at the conclusion of the divorce proceedings Chauncey earned approximately $96,000 per year. However, in January of 2011, when Chauncey sought modification of the maintenance payments, he made only $48,000 per year. Relying primarily on the income of Chauncey’s new wife, and citing expenses relating to their marriage and the children of their marriage, the court determined that Chauncey’s maintenance obligation was not unconscionable.

As indicated above, modification of maintenance looks solely to whether the payor’s circumstances have'changed in a substantial and continuing way such that they are rendered unconscionable. See KRS 403.250. The circuit court’s primary reliance on the income of the new wife and expenses associated with Chauncey’s new children is misplaced. Instead, the court should focus on whether the change in Chauncey’s income is substantial and continuing such that the award is unconscionable. See KRS 403.250. In making this determination, the court may consider the extent to which Chauncey’s relevant expenses have been reduced as a result of his new marriage. However, this consideration is only relevant to determine if the existing award should be reduced, not increased. We also note that other factors to be considered by a court are whether the individual obligated to pay maintenance is voluntarily underemployed, Bickel v. Bickel, 95 S.W.3d 925 (Ky.App.2002), and whether retirement, if it applies, was reasonable, Barbarine v. Barbarine, 925 S.W.2d 831 (Ky.App.1996), neither of which was raised below.

For the reasons set forth above, we reverse and remand for proceedings consistent with this opinion.

LAMBERT, Judge, Concurs.

MAZE, Judge, Concurs and Files Separate Opinion. •

1 . Chauncey also filed a "motion to return watch,” which was not addressed in the order at issue and is not raised on appeal.