Family Law

Mosley v. Mosley, 2009-CA-000177-M4

Published: Reversing and Remanding

County:  Pulaski

    Wife appealed circuit court?s denial of her motion to amend her response to a petition for dissolution of marriage to include a request for maintenance.

    The parties separated in 2003 after eleven years of marriage.  Husband filed petition for dissolution of marriage in July, 2007 and Wife?s response was filed January 8, 2008.  Wife did not request maintenance because she assumed their financial circumstances did not warrant maintenance.

    Wife learned when husband filed his brief in circuit court that upon death of his mother in September, 2007, he became sole heir to her $645,000 estate.  In addition, Wife discovered that her portion of husband?s military retirement pension would be only $174 per month and she would have no health care coverage after the divorce.  Wife filed a motion to amend her response to include a request for maintenance because Husband?s assets were greater than she had believed.  Husband appealed the motion arguing the amendment would unduly delay the final decree and undue prejudice.  The circuit court denied Wife?s motion.

    The Court of Appeals first reviewed CR 15.01 which states that leave to amend ?shall be freely given when justice so requires.?  While a trial court has discretionary power, it cannot exercise that discretion so as to deprive litigants of a just result.

    Kentucky has adopted the view that the rule should be liberally construed.  Citing Stout v. City of Martin, 395 S.W.2d 591 (Ky. 1965) the Court noted:

If no problem of relation back is involved, the question for the court is not whether a new and independent claim as ?cause of action? is pleaded by amendment but whether the just and expeditious disposition of the controversy between the parties will be advanced by permitting the amendment.  Barron & Holtzoff, Federal Practice and Procedure, §448 (Vol. 1A, p. 752).

    Here the Court of Appeals reasoned that the time required to resolve the maintenance issue would not prejudice Husband, and if Wife is entitled to maintenance, the injustice to her by denying her motion to amend her response is far greater than that to Husband by permitting the amendment.

    Reversed and remanded for entry of an order permitting Wife to amend her response to include a request for maintenance.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates