Family Law

DAUNHAUER v. DAUNHAUER, ___S.W.3d___ (Ky. App. 2009)

PUBLISHED: REVERSING
ACREE PRESIDING; NICKELL AND SENIOR JUDGE KNOPF CONCUR
COUNTY:JEFFERSON

Ex-Ex-Husband appealed from TC?s order denying his motion to terminate his maintenance obligation, arguing that Ex-Wife was no longer dependent upon that maintenance to meet her needs. 

FACTS:

Ex-Husband and Ex-Wife were married for 21 years.  At time of divorce, Ex-Husband was 48 and working as a dentist, earning $22,000 per year, and Ex-Wife was 42 and working as a secretary, earning $10,000 per year.  Ex-Wife relocated to California before Decree entered.  Parties entered agreement in which Ex-Husband would pay Ex-Wife maintenance of $400 per month, with such amount being modifiable after two years.  TC reduced maintenance to $200 per month after three years, when Ex-Wife?s income as a medical assistant was $26,000 per year and Ex-Husband?s income as a dentist was $36,000 per year.  Five years after that, TC denied Ex-Husband?s next motion for maintenance reduction, finding insufficient change in circumstances.  In 2006, at age 66, Ex-Husband injured himself and needed surgery and physical therapy, so he decided to sell his dental practice and retire.  He filed a motion to terminate maintenance, and although TC found retirement reasonable, TC denied motion as it found parties? circumstances had not sufficiently changed.  Ex-Husband appealed.

ANALYSIS:

CA held that goal of maintenance award per KRS 403.200 is to facilitate one?s transition from dependence on a former spouse to independence.  CA held that original maintenance award was rehabilitative, and that the most appropriate reason for modification is Ex-Wife?s ability to live independently of maintenance.  Although it is appropriate in some cases to have maintenance not terminate, that occurs only when the claimant?s prospects of self-sufficiency are dismal.  The policy underlying KRS 403.250, requiring a substantial change of circumstances for modification, is relative stability.  CA found these two policies are not at odds.  Because Ex-Husband?s voluntary retirement was reasonable, TC could consider his resulting change of circumstances.  Ex-Wife earned more income than Ex-Husband at time of hearing.  Both parties had expenses in excess of their income.  CA held that if Ex-Wife achieved self-sufficiency, then post-decree increases in Ex-Husband?s income or assets are irrelevant.  Self-sufficiency is determined with reference to standard of living acquired during marriage, not post-decree.  CA also found that TC erred by considering the ?relatively small? amount of maintenance and the higher cost of living in California.  If a claimant has achieved self-sufficiency, any amount of maintenance is inappropriate.  Further, since Ex-Wife has sufficient income to meet her needs, the higher cost of living is irrelevant.  CA reversed and remanded. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates