Connie Lynn McDaniel v. Rick T. McDaniel ( 2021 )

RENDERED: JULY 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0498-ME
CONNIE LYNN MCDANIEL APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 10-CI-01250
RICK T. MCDANIEL APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Connie Lynn McDaniel (“Connie”) appeals from the
March 6, 2020 order of the Laurel Circuit Court, Family Division denying her
motion to modify and extend maintenance. We affirm.
BACKGROUND
Connie and Rick T. McDaniel (“Rick”) were married in 1980. In
2010, Rick petitioned for dissolution of the marriage. In response, Connie
requested maintenance. The parties entered a mediation agreement which, in part,
required Rick to pay maintenance in the amount of $400.00 per month for two
years, as well as a lump sum of $5,000.00. Subsequently, Connie filed a motion to
set aside the portion of the mediation agreement relating to maintenance for
unconscionability. The family court entered a bifurcated decree of dissolution of
marriage on December 19, 2011, reserving the issue of whether the mediation
agreement would be set aside.
On March 20, 2012, the family court entered an agreed order
modifying the mediation agreement, awarding Connie maintenance in the amount
of $500.00 per month for five years. Therein, the parties also agreed the
maintenance award was “subject to modification both as to duration and amount,
pursuant to KRS[1] 403.250[.]” Record (“R.”) at 667. Rick’s monthly maintenance
payments expired in March 2017.
In April 2017, Connie filed a motion to modify and extend the
maintenance award. As grounds for modification, Connie argued at the time she
agreed to the prior maintenance amount, she was receiving unemployment benefits
but anticipated returning to work once those benefits expired. However, in the
interim, she developed several health conditions which have caused her to become
totally disabled and unable to work.
1
Kentucky Revised Statutes.
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On November 21, 2017, without a hearing, the family court denied
Connie’s motion because she failed to show changed circumstances so substantial
and continuing as to make the terms of the agreed order unconscionable. R. at 857.
Connie appealed. On appeal, Connie argued the family court abused its discretion
by denying her motion without a hearing and erroneously adopted Rick’s counsel’s
proposed order verbatim. Rick did not file a responsive brief. This Court held:
In accordance with CR[2] 76.12(8)(c)(iii), we elect to
regard Rick’s failure to file a brief as a confession of
error as to the family court’s failure to hold an
evidentiary hearing. Moreover, following an
independent review of the record, we conclude that an
evidentiary hearing should have been held on the issue of
maintenance. On remand, following an evidentiary
hearing, the family court should enter sufficient and
independent findings of fact to support its final
determination based on the evidence presented.
McDaniel v. McDaniel, No. 2017-CA-002023-MR, 2019 WL 1312841, at *2 (Ky.
App. Mar. 22, 2019).
On remand, the family court held an evidentiary hearing on Connie’s
motion. The court heard testimony from both parties. Rick testified to his income
from working for Laurel Grocery, various debts, expenses, and his 2016
bankruptcy. Connie testified to her health issues, occasional work as a babysitter
for her grandchildren, and transportation issues, as well as her expenses, disability
2
Kentucky Rules of Civil Procedure.
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income, and retirement income. At the close of evidence, the family court asked
counsel for both parties to submit proposed findings of fact. Both parties did so,
and the family court entered Rick’s proposed findings of fact and order.
The court found, based on the evidence presented, that Connie failed
to show changed circumstances so substantial and continuing as to make the terms
of the 2012 agreed order unconscionable. R. at 1216. Specifically, the court found
Connie’s living expenses had been “greatly reduced” since the parties’ divorce,
and she did not prove her vehicle was now inoperable. R. at 1216-17. The family
court was unconvinced by Connie’s claims relating to her health and timing of her
various diagnoses because she failed to provide expert testimony or records to
substantiate her disability. R. at 1217. This appeal followed.
STANDARD OF REVIEW
“The determination of questions regarding maintenance is a matter
which has traditionally been delegated to the sound and broad discretion of the
[family] court, and an appellate court will not disturb the [family] court absent an
abuse of discretion.” Barbarine v. Barbarine, 925 S.W.2d 831, 832 (Ky. App.
1996) (citations omitted). “The test for abuse of discretion is whether the [family]
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Holland v. Herzfeld, 610 S.W.3d 360, 363 (Ky. App. 2020) (citation
omitted). A family court’s findings of fact may only be set aside if they are clearly
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erroneous. Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007) (citation
omitted). “We cannot substitute our judgment for the family court’s if there is
substantial evidence supporting that court’s decision.” Id.ANALYSIS
On appeal, Connie argues: (1) the family court’s findings of fact are
clearly erroneous; (2) the family court erred in concluding she had not shown a
change in circumstances justifying modification of maintenance; and (3) the family
court erred by entering Rick’s proposed findings of fact and order.
An order on maintenance “may be modified only upon a showing of
changed circumstances so substantial and continuing as to make the terms
unconscionable.” KRS 403.250. The party seeking modification bears the burden
of proving such a change in circumstances. See Bickel v. Bickel, 95 S.W.3d 925,
927 (Ky. App. 2002).
First, Connie argues the family court’s findings of fact regarding her
expenses, health, and ability to work are clearly erroneous. This Court will not
disturb factual findings which are supported by substantial evidence. Block, 252
S.W.3d at 159 (citation omitted). Substantial evidence is that which, when “taken
alone or in the light of all the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Moore v. Asente, 110 S.W.3d 336,
354 (Ky. 2003) (footnote omitted).
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As to Connie’s expenses, the family court found, prior to the divorce
and when she agreed to the prior maintenance amount, Connie attested to monthly
expenses of $3,729.10 and anticipated her monthly expenses after divorce to be
$3,804.10. During the hearing on her motion to modify maintenance, Connie
testified to her current monthly expenses being $1,250.00 to $1,343.00.3 On this
basis, the court found Connie’s expenses had been greatly reduced.
Connie argues these findings are erroneous because, at the time of the
prior agreement, her monthly expenses were approximately the same as her current
expenses. However, in support of this allegation, Connie cites only to her 2017
motion to modify maintenance, which lists her monthly expenses as $1,600.00.
While the motion may accurately reflect Connie’s 2017 expenses, it does not prove
her expenses at the time she entered into the 2012 maintenance agreement. In
making its findings, the family court cites to Connie’s memorandum in support of
her motion to set aside the mediation agreement filed on August 24, 2011.
Therein, Connie’s monthly expenses are listed as $3,729.10 per month prior to the
divorce and $3,804.10 per month anticipated after the divorce. R. at 1213.
Without citation to contradictory evidence as to Connie’s expenses at the time she
3
She first testified to a list of her monthly expenses for July 2019 which totaled $1,250.00. She
then presented a second list of expenses for November 2019 which totaled $1,343.00. R. at
1095-96.
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agreed to maintenance in 2012, we cannot determine the family court’s findings
are clearly erroneous.
Next, the family court was not convinced by Connie’s testimony
regarding her medical conditions or the time at which they were diagnosed in
relation to the 2012 agreement. The court found “[s]he admitted that some of her
medical problems were present at the time she entered into the agreement. She
produced no expert testimony or records to substantiate her claim of medical
problems or when they started.” R. at 1217. At the hearing, Connie testified to
having rheumatoid arthritis, osteoarthritis, gout, degenerative disc disease,
migraines, acid reflux, high blood pressure, and fibromyalgia. She admitted to
having been diagnosed with some of these conditions prior to entering into the
2012 agreement.
Connie alleges that, while she was diagnosed with some of the
medical conditions prior to the 2012 agreement, there is no evidence in the record
showing she was totally disabled at that time or that she could have expected to be
when she entered into the agreement. Connie is correct. In fact, the record
contains no evidence, other than Connie’s own testimony, as to her medical
diagnoses or the Social Security Administration’s determination of disability. It is
the movant’s burden to present compelling evidence supporting modification of
maintenance. Barbarine, 925 S.W.2d at 832 (citation omitted). Furthermore,
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judging the credibility of witnesses and weighing evidence is within the family
court’s exclusive province. Moore, 110 S.W.3d at 354 (footnotes omitted).
Therefore, the family court acted within its discretion in finding Connie’s
testimony insufficient without any corroborating testimony or documentation.
Connie also contests the family court’s finding that she is able to
obtain gainful part-time employment. Despite claiming evidence in the record
contradicts the court’s findings, Connie’s argument is entirely devoid of citations
to this matter’s lengthy record.
It is fundamental that it is an [a]ppellant’s duty and
obligation to provide citations to the record regarding the
location of the evidence and testimony upon which he
relies to support his position and if an appellant fails to
do so, we will accordingly not address it on the merits.
Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) (internal quotation marks
and footnote omitted); see also CR 76.12(4)(c)(v). On this basis, we decline to
address the merits of Connie’s argument as to her ability to work part-time.
Next, Connie claims the family court erred in finding there was no
change in circumstances so substantial and continuing as to make the 2012
agreement unconscionable. An agreement is unconscionable if it is “manifestly
unfair or inequitable.” Block, 252 S.W.3d at 160 (citation omitted). To determine
whether there has been a substantial and continuing change in circumstances, the
court must compare the parties’ present circumstances to their circumstances at the
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time they entered into the agreement. Id. (citation omitted). In this inquiry, “each
case stands on its own” and must be reviewed separately on its own facts. Id. at
160-61 (citation omitted).
Rick has been employed by Laurel Grocery for nineteen years. His
income has remained the same since the parties entered into the 2012 agreement on
maintenance. He is paid $921.36 per week. In 2016, Rick filed for bankruptcy.
He also presently makes payments on a loan from Cumberland Valley National
Bank and another associated with a 1989 boat. Rick has six to seven credit cards
on which he makes regular monthly payments. He lives in his mother’s home and
has no mortgage obligation but is responsible for all utilities, maintenance, and
taxes associated with the property.4 Rick testified to living paycheck to paycheck.
As previously discussed, prior to the 2012 agreement, Connie alleged
monthly expenses of $3,729.10 to $3,804.10. At the hearing, she testified to
present expenses of $1,250.00 to $1,343.00 per month.5 Within these expenses,
she lists $160.00 to $208.00 per month to pay drivers because she does not drive
the 2005 Impala she was awarded in the divorce. She also lists $140.00 to $150.00
4
Rick’s mother is currently ill and receiving hospice care. He testified that, upon her death, the
home will be sold.
5
As evidence of her expenses, Connie presented only a list she created herself. As noted by the
family court, she did not provide any bills, receipts, or other documentation to verify these
expenses. R. at 1215.
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per month for rental of a storage building which she conceded is an unnecessary
expense as it primarily contains “junk.”
At the time of the agreement, Connie was receiving $1,166 per month
in unemployment income. Connie receives $1,277.27 per month from the Social
Security Administration and $246.27 per month in retirement income. Connie also
received funds for babysitting her grandchildren in the amount of $130.00 to
$200.00 per month for some of 2019. Connie alleges the only changes to her
circumstances are that she is now totally disabled, and the 2005 Impala is no longer
functional. She is essentially requesting extension of Rick’s maintenance
obligation so that she can purchase and insure a vehicle.
Since the 2012 agreement on maintenance, Connie’s expenses have
decreased.6 Her income has increased only slightly since that time. The family
court was unconvinced by her testimony relating to her health because she
presented no medical records or expert testimony to prove her diagnoses or the
time at which they were made. As to the 2005 Impala, Connie did not present the
family court with evidence proving it is not operational. Instead, she simply
stopped driving it when the “engine light” came on.
6
Even if we accepted her argument regarding her expenses, they have, by her admission, not
increased since 2012.
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Taking into consideration all the facts in this matter, Connie has not
met her burden under KRS 403.250. Connie did not present sufficient evidence to
show she is now totally disabled or that she did not suffer from the same medical
conditions of which she now complains when she entered into the 2012 agreement.
She also proved only that she stopped driving the 2005 Impala and never attempted
to have it repaired. We cannot determine there has been a substantial and
continuing change in circumstances which would render the 2012 maintenance
agreement manifestly unjust or inequitable. On this basis, the family court did not
err.
Finally, Connie takes issue with the family court’s adoption of Rick’s
proposed findings of fact and order. The Supreme Court of Kentucky has
previously cautioned that delegation of a court’s power to make findings of fact
and draw conclusions is not good practice. Bingham v. Bingham, 628 S.W.2d 628,
629 (Ky. 1982) (citation omitted). This is because trial courts are required to make
independent findings of fact under CR 52.01. However, “[i]t is not [an] error for
the trial court to adopt findings of fact which were merely drafted by someone
else.” Prater v. Cabinet for Human Resources, 954 S.W.2d 954, 956 (Ky. 1997)
(citation omitted).
Herein, like in Prater, the family court requested both parties submit
proposed findings of fact and both did so. Connie has not shown the family court
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was not in control of the decision-making process, nor that the order was not the
product of the family court’s deliberations. Bingham, 628 S.W.2d at 629-30.
Furthermore, as previously discussed at length, substantial evidence supports the
family court’s findings of fact and conclusions of law and, absent an abuse of
discretion, findings and conclusions are not easily set aside. Id. at 630.
CONCLUSION
Based on the foregoing, the March 6, 2020 order of the Laurel Circuit
Court, Family Division is affirmed.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Marcia A. Smith Jennifer S. Nicholson
Corbin, Kentucky London, Kentucky
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