Douglas Saville v. Patricia Saville

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-0875-ME

DOUGLAS SAVILLE APPELLANT

APPEAL FROM BOONE FAMILY COURT
v. HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 16-CI-01160

PATRICIA SAVILLE APPELLEE

AND NO. 2019-CA-1604-MR

DOUGLAS SAVILLE APPELLANT

APPEAL FROM BOONE FAMILY COURT
v. HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 16-CI-01160

PATRICIA SAVILLE APPELLEE
 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.

CALDWELL, JUDGE: In these two related appeals stemming from the same

dissolution of marriage action, Douglas Saville asserts errors in the Boone Family

Court’s initial determination of maintenance, property, and child support and in its

denial of his motion to modify maintenance. We affirm.

FACTS

Douglas (“Doug”) Saville and Patricia (“Tricia”) Saville were married

in August 2000. They have two children, born in 2005 and 2008. Doug and Tricia

separated in August 2016, and Doug filed a petition for divorce later that month.

In March 2017, the family court entered an agreed order concerning

several matters. The order’s terms included the parties having joint custody with

the children residing primarily with Tricia. Doug had parenting time on alternate

weekends, some holidays, and for a few weeks of summer vacation. Doug was

responsible for paying the mortgage on the marital residence in lieu of child

support and maintenance under the agreed order.

In February 2018, the family court entered a decree dissolving the

marriage but reserved ruling on other issues. After the parties sold their marital

residence in late April 2018, Tricia filed a motion for child support and

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maintenance on May 18, 2018. The parties presented proof to the family court on

several trial dates over the next several months. Generally, the proof showed that

Doug earned about four times what Tricia earned—with Doug earning about

$100,000 a year and Tricia about $25,000 a year at their respective full-time jobs.

An agreed temporary order was entered in late November 2018 for

Doug to pay $1,000 per month in child support. By the last trial date in mid-

February 2019, Doug had paid $3,000 in child support. Meanwhile, the parties

also negotiated the terms of a partial property settlement agreement which they

filed in the family court in early March 2019.

A few days after the partial property settlement was entered, the

family court entered supplemental findings of fact and conclusions of law. It

entered a supplemental dissolution decree approving the partial property settlement

agreement, ruling on remaining property division issues, and awarding child

support and maintenance to Tricia. The family court set child support at about

$1,100 a month and maintenance at about $1,000 a month—both effective May 15,

2018—with the maintenance award to terminate within four years.1 And the

family court determined that Doug then owed arrearages of $9,000 for

maintenance and about $7,400 for child support for the period from May 15, 2018

1
Specifically, the maintenance award would terminate in four years or sooner if Tricia died,
remarried, or cohabited with an intimate partner.

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through February 15, 2019 (the last date of trial). It ordered Doug to pay the child

support arrearage within 90 days and the maintenance arrearage within a year.

Both parties filed motions to alter, amend, or vacate the March 2019

decree under Kentucky Rules of Civil Procedure (CR) 59.05. Following resolution

of these CR 59.05 motions, Doug filed a timely appeal from the family court’s

March 2019 decree. He alleged errors concerning property division, maintenance,

and child support in this first appeal.

A few weeks after entry of the March 2019 decree, and while the

parties’ CR 59.05 motions were still pending, Doug filed a motion to modify

parenting time and for a shared parenting time credit on his child support

obligation. Doug stated that he had previously agreed to more limited parenting

time because he had relocated to Pennsylvania to perform work for his employer.

But after completing his work in Pennsylvania, he would soon move back to the

Northern Kentucky area. So, he requested that the family court award him a

shared-parenting schedule and a shared-parenting credit on his child support

obligation. After a hearing on his request for a shared parenting schedule, the

family court granted him equal parenting time with Tricia.

A few weeks later, Doug filed a motion to modify maintenance. In

his motion, he alleged inter alia that his income was reduced when he relocated

back to Kentucky. Specifically, he alleged that he lost about $2,000 a month in

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funds for travel expenses. He also argued that the maintenance award of $1,000 a

month was unwarranted because it was based on Tricia’s anticipated rather than

actual expenses.

On September 25, 2019, the family court entered an order granting

Doug’s request to modify child support and reducing his child support obligation

by about $700 a month effective June 13, 2019 (the date he was awarded equal

parenting time). However, the family court denied his motion to modify

maintenance and also denied a request by Tricia for increased maintenance.

Doug then filed a timely appeal of the family court’s order, which

recited that it was final and appealable with no just cause for delay. He asserts

error in the family court’s denying his motion to modify maintenance in this

second appeal. The parties did not raise any other issues in this second appeal.

Prior to Doug filing his notice of appeal from the September 2019

order which denied maintenance modification among other things, Tricia had filed

a timely motion under CR 59.05 to alter, amend, or vacate the same September

2019 order. She requested inter alia that the family court amend its finding

concerning the amount of Doug’s monthly gross income to reflect monthly benefits

from his employer (including a vehicle allowance, cell phone reimbursement, and

gas card) as well as wages. She asserted his gross monthly income was about $800

more than the family court had found and asked the family court to re-calculate

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child support under the guidelines from about $400 a month to about $500 a

month. Tricia also asked the family court to alter its ruling on maintenance and to

increase the monthly maintenance payment to help her meet her monthly expenses.

After the parties completed briefing in this Court, the family court

entered an agreed order in August 2020 resolving Tricia’s CR 59.05 motion. In

this agreed order, the family court sustained Tricia’s objection to its finding about

Doug’s gross income, and Doug stipulated to receiving gross monthly income in

the amount Tricia asserted in her CR 59.05 motion (about $800 a month over what

the family court originally found). In this same agreed order, Tricia also withdrew

her motion to alter, amend, or vacate the family court’s order regarding her request

to obtain an increase in maintenance. So, the family court’s denial of maintenance

modification remained intact after its resolution of the CR 59.05 motion, but it

modified its finding about Doug’s gross income.

The written record on appeal transmitted to us contained Tricia’s CR

59.05 motion but did not contain the August 2020 agreed order resolving it.

However, we reviewed this August 2020 agreed order via CourtNet in order to

properly review the family court’s latest resolution concerning the motion to

modify maintenance and findings on matters directly affecting this request.2

2
See Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App. 2004) (discussing doctrine of judicial
notice).

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 In the interest of judicial economy, we consider both the first appeal

(from the March 2019 decree) and the second appeal (from the September 2019

order denying Doug’s motion to modify maintenance) in this opinion. Further

facts will be discussed as necessary.

STANDARD OF REVIEW

“We review a [family] court’s decisions regarding child support,

maintenance, and the division of assets pursuant to a divorce decree for an abuse of

discretion.” Duffy v. Duffy, 540 S.W.3d 821, 826 (Ky. App. 2018). Similarly, we

review a family court’s denial of a motion to modify maintenance for abuse of

discretion. Tudor v. Tudor, 399 S.W.3d 791, 793 (Ky. App. 2013). While

reviewing the family court’s rulings on these matters for abuse of discretion, its

“factual findings are given deference,” id., so that these factual findings cannot be

disturbed unless clearly erroneous, meaning unsupported by substantial evidence.

Duffy, 540 S.W.3d at 826.

ANALYSIS

No Reversible Error in Factual Findings on or Disposition of P&G Shares

Doug contends that the family court issued clearly erroneous factual

findings about the parties still possessing Proctor and Gamble stock shares (“P&G

shares”) when dividing the marital property. Incorporating the parties’ Partial

Property Settlement agreement into its March 2019 supplemental decree, the

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family court addressed a few remaining disputed issues about property division in

this decree—including disposition of any remaining P&G shares.

Doug presented the parties’ joint tax return for the 2016 tax year

which reported the sale of a number of P&G shares in the last few months of

2016—after the parties had separated in early August 2016. Doug testified that

after these shares were sold, the parties no longer owned any P&G shares. He

testified that the shares had been sold to pay off marital debt and that Tricia knew

of and participated in the sales. Tricia, on the other hand, testified that the P&G

shares were in Doug’s name, that he had sole control over the P&G shares, and that

she was not aware of or involved in selling these shares and did not use or receive

any proceeds from the sale of P&G shares.

Tricia’s counsel cross-examined Doug about a document showing that

the parties had possessed about 408 P&G shares at the end of December 2014,

despite the parties’ tax return for the 2016 tax year showing that about 244 P&G

shares had been sold in 2016. Addressing Doug’s assertion that there were no

remaining P&G shares held by the parties, counsel asked Doug about when other

shares had been sold since the tax return only showed that about 244 P&G shares

were sold in 2016 and the other document showed the parties owning 408 P&G

shares at the end of 2014. Doug testified that he did not know since, according to

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him, his wife3 had taken records from his office, but he suggested that maybe the

other shares had been sold in 2014. (From our review of the portion of his

testimony cited by the parties, it does not appear that he specifically addressed or

was asked to address whether any shares had been sold in the year 2015.) Tricia

asserts that since the P&G shares were in Doug’s name, Doug alone could

presumably produce sale documents, but he failed to do so despite her requests for

production of documents.

The family court’s findings included a detailed recitation of how

many shares had been sold and for what amounts in 2016. The family court noted

Doug’s testimony that proceeds from sales of the P&G shares were no longer in

existence because they had been used to pay off expenses and that no more P&G

shares remained. But the family court found that there was no other evidence to

substantiate his testimony about all proceeds having been spent or there being no

P&G shares remaining in the parties’ possession.

Although the family court noted Tricia’s testimony about Tricia not

participating in or benefitting from the sale of P&G shares, the family court found

that the jointly filed tax return for the 2016 tax year indicated that Tricia was aware

of the 2016 sales. The family court also noted Doug’s testimony on cross-

3
As Doug had apparently remarried sometime after the initial decree dissolving the marriage, it
is not totally clear whether he was referring to Tricia or someone else when testifying about
documents being removed from an office by his wife.

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examination admitting that a document showed the parties’ owning 408 P&G

shares at the end of 2014 despite the 2016 tax return showing 244.585 shares sold.

The family court found: “There would have been remaining 164 shares of P&G

stock, which [Doug] could not account for other than to say they were no longer in

existence.”

The family court found the P&G shares were marital property and

subject to division. It determined that Doug did not owe Tricia any proceeds from

the 2016 sales of about 244 P&G shares since Tricia must have been aware of

these sales based on the 2016 joint tax return. But the family court ruled that Doug

must either transfer one-half of the other 164 P&G shares (thus, 82 shares) to

Tricia or pay her for the value of 82 P&G shares:

Petitioner [Doug] shall transfer to Respondent [Tricia] 82
shares of P&G stock, representing one half of the 164
remaining shares of P&G stock, which Petitioner could
not account for. If Petitioner is unable to produce one-
half of the 164 remaining shares, Petitioner shall pay
Respondent the closing share price of 82 shares of P&G
stock as of the date of the entry of the Supplemental
Decree of Dissolution of Marriage or as of December 31,
2014, whichever amount is least.

Having reviewed the record, we disagree with Doug’s contention that

the family court issued a clearly erroneous factual finding about there being P&G

shares remaining in the parties’ possession. We construe the family court’s

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language as not definitively finding whether P&G shares remained in the parties’

possession but simply finding that Doug could not account for 164 P&G shares.

We must give due regard to the family court’s unique opportunity to

assess the credibility of witnesses under CR 52.01. So, we cannot say that the

family court was compelled to believe Doug’s testimony that no P&G shares

remained in the parties’ possession. Given the evidence presented of the parties

owning 408 shares at the end of 2014 and selling 244 shares in 2016, coupled with

Doug’s failure to produce documentation of the sale of the other 164 shares and

Tricia’s testimony these shares were under his sole name and control, there is

substantial evidence to support the family court’s finding that Doug could not

account for 164 shares. And regardless of the current status of such shares, we

discern no abuse of discretion in the family court ordering Doug to transfer 82

P&G shares to Tricia or to pay her for the value of 82 P&G shares4 from our

review of the record.

In short, there was no reversible error in the family court’s handling of

the matter of P&G shares as part of the division of marital property.

4
The family court found that Doug received for sales of 244 P&G shares “a total of $21,203.00”
in 2016. (Supplemental Findings of Fact and Conclusions of Law 3/8/2019, p. 12). The family
court awarded Tricia 82 P&G shares or their value as of two alternate valuation dates, whichever
was lower, in the decree. We are unaware of the dollar value of these P&G shares on either of
these two alternate valuation dates. But as 244 P&G shares were sold for just over $20,000 in
2016, the value for about one-third as many stocks by either alternate valuation date (in 2014 or
2019) would likely represent a relatively small portion of the parties’ total assets.

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 No Reversible Error in Family Court’s Decision to Award Maintenance

Under the partial property settlement agreement incorporated in the

decree, Tricia retained her non-marital individual retirement accounts (IRAs)

worth around $100,000. And the family court awarded her a greater share of the

marital property than Doug, stating it did so because Doug had sold some marital

assets for less than fair market value without consulting or informing Tricia. The

marital property awarded to Tricia included a portion of a marital annuity account

held in Doug’s name and about $54,000 due to her from the sale of the marital

residence, for which the proceeds had hitherto remained in escrow.5 In sum, Tricia

retained assets valued around $200,000 with around half of these assets in IRAs.

The proof at trial showed that Tricia was employed full-time as an

office manager at her father’s auto body shop and had been earning about the same

salary there for several years. Tricia’s father testified that her salary had not gone

up because her salary (like that of his other employees) depended on how much

insurance companies were willing to pay for repairs. Though not discussed by the

family court in its judgment, Tricia testified that working for her father provided

flexibility and other advantages in caring for her children—for example, she or her

5
Under the terms of the parties’ partial property settlement agreement incorporated in the decree,
Tricia would receive about $43,000 for her one-half portion of the proceeds, plus Doug agreed to
pay her around $11,000 from his half of the proceeds in order to reimburse her for other things.

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mother could pick the children up from school and the children could come to her

workplace after school.

Tricia testified to paying the insurance for an older vehicle (a 2001

model) in her possession which she testified was not reliable or in good condition.

But she admitted she was also able to use a somewhat newer vehicle associated

with her father’s business for which she did not have to pay insurance. Her father

testified that she (like other employees) could take a company vehicle home, in

part because she was sometimes asked to drive directly from her home to pick up

customers or perform other work tasks. And Tricia and her father testified that she

was able to use a credit card for her father’s business for personal expenses,6

although they also testified she was expected to reimburse the business for such

personal expenses.

Before the trial, Tricia had submitted an affidavit in which she stated

her expenses included $1,250 monthly rent and a $200 a month car payment. At

trial, she admitted that she did not currently have a car payment but that she

budgeted $200 a month for a car payment to get a more reliable car. And she

testified that her parents had allowed her to live rent-free in the house owned by

her mother for the last several months to help her out during the divorce

6
According to Tricia’s testimony, the personal expenses she used the credit card for were child-
related.

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proceedings and while the marital home sale proceeds remained in escrow. She

also admitted that, as of the last trial date, there was no lease agreement in effect

about her living in the house owned by her mother. But she and her father both

testified that she would be expected to pay rent after the divorce case concluded. 7

The family court found that even though Tricia was employed, “she is

not able to meet her anticipated monthly living expenses based upon her net

income of $1,602.00 per month.” (Supplemental Findings of Fact and Conclusions

of Law 3/8/2019, p. 8). And the family court awarded her $1,000 per month in

maintenance for four years, noting she had requested maintenance for six years.

The family court stated that its maintenance award took effect on May 15, 2018.8

The family court noted that Doug had not made any maintenance payments after

the motion for maintenance was filed in May 2018 following the marital residence

7
Before the September 2019 order ruling on Doug’s request to modify maintenance, Tricia
submitted a lease agreement dated March 1, 2019 wherein she agreed to pay $1,250 per month
rent for the house owned by her mother and cancelled checks showing she paid this monthly rent
starting in March 2019. But from our review of the written record, it does not appear that Tricia
submitted this March 2019 lease agreement to the family court before it entered its March 2019
supplemental decree, findings of fact, and conclusions of law.
8
Possibly, the family court selected this date for the maintenance award to commence based on
its finding that Tricia “filed a motion on May 15, 2018 requesting the payment of maintenance.”
(Supplemental Findings of Fact and Conclusions of Law 3/8/2019, p. 8). However, Tricia states
that she filed her motion for child support and maintenance on May 18, 2018 in her brief, which
is consistent with our review of the written record. Regarding child support, we note the parties
agreed to let the family court determine the effective date of the child support obligation in the
temporary agreed order entered in late November 2018. To the extent that the family court’s
March 2019 judgment may contain a clerical error misstating the date Tricia’s motion for
maintenance and child support was filed, the family court may correct any clerical error at any
time upon a party’s motion or on the family court’s own initiative pursuant to CR 60.01.

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sale. So, the family court determined there was now an arrearage of $9,000 back

maintenance due for the nine months between the filing of the motion and the last

day of trial.

The family court also stated in its decree that Tricia should not have to

suffer the tax consequences of removing money from her IRAs to support herself.

And it found that her monthly expenses included “$1,250.00 for rent and $200.00

for a newer vehicle.” It further noted Tricia’s testimony that she could not

continue to reside at the residence owned by her mother rent-free.

Doug argues that Tricia did not need maintenance and that the

maintenance award was improperly based on anticipated rather than actual

expenses. He also claims that Tricia claimed “fraudulent expenses” which she did

not actually incur, citing her admission in testimony that despite her stated

expenses of $1,250 a month for rent and $200 a month for a car payment in an

affidavit, she had not actually been paying her parents rent or making a car

payment. And he contends that since Tricia was awarded about $1,100 a month in

child support, retained significant assets, was awarded an even greater share of

marital assets than him, and “was rendered debt free,” the family court erred in

awarding her maintenance.

Tricia points out that even though marital debts had been

extinguished, the family court’s decree provided that each party was responsible

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for paying his/her attorney fees “after the division of property is accomplished[.]”

And according to the family court’s findings, Tricia’s attorney fees amounted to

over $30,000 at that point. Tricia had requested that Doug pay her attorney fees,

but the family court denied this request.

Despite the allegations of error raised by Doug, we agree with Tricia

that the family court did not misunderstand the evidence about Tricia’s expenses or

abuse its discretion in awarding Tricia maintenance. The family court indicated its

awareness that Tricia had not been previously paying rent by noting her testimony

that she could not continue to reside at her house rent-free. And although less

clear, we believe that the family court also indicated its awareness that she did not

have an existing obligation to pay debt under a car note in finding she could not

meet her “anticipated monthly expenses” based on her net income and referring to

a monthly expense of “$200.00 for a newer vehicle” after noting that Tricia (unlike

Doug) had not been able to buy a new car after their separation.

As for Doug’s assertions that Tricia claimed “fraudulent expenses” in

her affidavit which she did not actually incur, we understand how the affidavit as

drafted might seem misleading.9 Better practice would have been to state clearly

that although Tricia did not currently have a monthly house rent payment or

9
The affidavit stated Tricia “has the following expenses” including $1,250 monthly for
“Housing; mortgage” and $200 monthly for “Auto payments.” (Respondent’s Exhibit No. 20,
Envelope IV of Record on Appeal).

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monthly car payment, she anticipated having rent and car payments in stated

amounts in the future. And we admonish Tricia and her counsel to take greater

care in the future to ensure that factual assertions made to courts are accurate,

particularly in documents submitted under oath such as affidavits. See generally

CR 43.13; CR 11.

Nonetheless, the family court did not find nor do we conclude that the

evidence compels a finding of fraud in the sense of intentional deception,

particularly since Tricia admitted in her testimony that she did not currently have

monthly obligations for rent or car payments. And the family court clearly

understood that the $1,250 for rent and $200 for a car payment were anticipated

monthly expenses rather than previously incurred expenses.

Kentucky Revised Statutes (KRS) 403.200(1) provides in pertinent

part that a family court may properly grant maintenance “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[.]”

After discussing in detail what accounts (and other assets) Tricia

retained as either non-marital property or received as her share of marital property,

the family court found that Tricia should not be required to suffer the tax

consequences of liquidating her IRAs to support herself. We construe this

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statement as more generally finding that Tricia lacked sufficient property to

provide for her reasonable needs, thus satisfying KRS 403.200(1)(a).

As for KRS 403.200(1)(b)’s requirement that the family court find

that the spouse seeking maintenance show inability to support oneself through

appropriate employment, this was satisfied by the family court’s finding that

Tricia’s net monthly income was not sufficient to meet her anticipated monthly

needs despite her employment. There is no dispute that Tricia was employed, and

there was no finding of under-employment. Thus, the family court implicitly

found that Tricia’s employment was appropriate. And as the family court

specifically found that her net monthly income was insufficient to meet her

anticipated monthly needs (which it did not find unreasonable), it implicitly found

that she was unable to support herself through appropriate employment.

And despite Doug’s arguments to the contrary, we discern no abuse of

discretion by the family court in awarding Tricia maintenance for a four-year

period based on our review of the record before us. Tricia admitted that she did

not have a rent payment to make and was not currently paying off debt under a car

note at the time of trial. But Tricia testified that her earnings from her employment

were used up each month in paying credit card bills, utilities, and child-related

expenses and that without her parents offering her rent-free housing during the

divorce proceedings, she would not have been able to afford a place to live. And

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as she points out, much of her liquid assets would be subsumed in paying her

attorney fees.

As Doug asserts, the family court found Tricia to be in good health

and did not specifically find that she would be unable to obtain more lucrative

employment. But Doug, who did not file a reply brief, did not respond to Tricia’s

assertion in her brief that no evidence was presented to show that she was capable

of earning more money. The family court noted that both parties had a high school

education. And although not specifically noted in the judgment, both parties were

in their forties at the time of trial from our review of the written record.

Given the lack of evidence that Tricia was voluntarily under-

employed and Tricia’s testimony that she could not afford to pay for housing given

her net income and other expenses, we discern no abuse of discretion in the family

court’s award of maintenance especially in light of such factors as the length of the

marriage and the relatively short duration of the maintenance award. The family

court’s award of maintenance did not prevent the parties from severing all ties for

an unduly long time but, rather, afforded Tricia a reasonable opportunity to

transition from financial dependence on her former spouse to independence. See

Daunhauer v. Daunhauer, 295 S.W.3d 154, 156 (Ky. App. 2009) (“The goal of a

maintenance award is to facilitate one’s transition from dependence upon her

former spouse to independence. This is consistent with another goal of the

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dissolution process which is to sever all ties as much as possible as soon as

possible.”).

Though Doug cites Light v. Light, 599 S.W.2d 476 (Ky. App. 1980),

to argue that maintenance should not be awarded unless it is truly needed, we note

that the denial of the maintenance request10 in that case was reversed. And we

therein held that maintenance ought to be avoided if not strictly necessary to avoid

prolonging the parties’ dealings with each other. But we recognized that

maintenance could be properly awarded where “circumstances of need and fairness

demand.” Id. at 479. Based on our review of the record here, there was evidence

to support “circumstances of need and fairness” calling for a maintenance award.

Doug also argues that the $9,000 in back maintenance was not needed

to cover expenses not actually incurred, citing Daunhauer and Roberts v. Roberts,

744 S.W.2d 433, 436 (Ky. App. 1988). Despite some discussion of considering

“need” in maintenance cases or more specifically in ruling on motions to terminate

or otherwise modify maintenance awards, these cases are factually distinguishable.

For instance, Daunhauer involved a request to terminate maintenance for an ex-

spouse who had become more than self-sufficient and even earned significantly

10
The family court in Light had ordered both child support for younger children and a temporary
maintenance award to help support an eighteen-year old child until he graduated from high
school, but the family court otherwise denied the request for maintenance. Id. at 477. We
reversed and remanded for the family court to reconsider the maintenance issue, especially in
light of pension benefits to be received in retirement. Id. at 479-80.

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more than the obligor spouse. 295 S.W.3d at 158, 161. And Roberts affirmed an

increased maintenance award based on the ex-wife’s declining income coupled

with the ex-husband’s increasing income and inheriting property (which produced

interest income) upon the death of a second ex-wife. 744 S.W.2d at 436-37. In

short, we do not construe these cases’ holdings on the unique facts before them as

particularly relevant to determining whether Tricia needs maintenance under the

unique facts of this case.

Furthermore, considering all relevant factors such as the wide

disparity in the parties’ incomes, we find no fault in the family court not requiring

Tricia to liquidate her IRAs to support herself. See Daunhauer, 295 S.W.3d at 159

(noting in dicta that retirement accounts are generally intended to meet future

needs in retirement rather than current needs for employed persons); Smith v.

Smith, 503 S.W.3d 178, 185-86 (Ky. App. 2016) (noting argument about the tax

penalty consequences of withdrawing funds from retirement accounts in upholding

maintenance award for ex-wife who received a share of ex-husband’s retirement

accounts). Nor can we fault the family court for not expecting Tricia to continue to

depend on her parents’ generosity rather than receive an appropriately

rehabilitative award of maintenance. See Leitsch v. Leitsch, 839 S.W.2d 287, 289

(Ky. App. 1992) (holding family court abused its discretion in denying

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maintenance to disabled spouse rather than awarding sufficient funds to allow him

to meet his needs without depending on the generosity of family and friends).

Even the award of back maintenance does not amount to an abuse of

discretion under the unique facts of this case. Despite not having to pay rent or a

monthly car payment prior to trial, Tricia testified to barely being able to pay for

utilities or credit card bills. She did not receive any maintenance and only $3,000

in child support during the nearly one-year time period between the marital home

sale and the final trial date. She received only the modest income from her full-

time job for several months while house sale proceeds remained in escrow. And

though she would eventually receive about $54,000 from the sale of the marital

residence, much of this would be used up in paying more than $30,000 in attorney

fees. In sum, it was not an abuse of discretion for the family court to award her

back maintenance for a period of relative penury during divorce proceedings.

In short, there was no reversible error in the family court’s award of

maintenance to Tricia.

No Reversible Error in Not Imputing Additional Income to
Determine Child Support or Maintenance

Next, Doug argues that the family court “erroneously failed to

attribute gift income to” Tricia when determining the amount of child support and

maintenance due. He believes the family court erred in not adding amounts for her

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use of her father’s business credit card, use of a vehicle, and receipt of rent-free

housing from her parents to her wages to determine her income.

Concerning Tricia’s use of her father’s business credit card, both

Tricia and her father testified that she was expected to pay him back for items she

charged to this card. And the family court did not explicitly reject this testimony

as lacking credibility. Given the evidence that Tricia was required to pay back

what she charged to this card, we discern no error in the family court’s not finding

Tricia’s use of this card to constitute additional income to her when calculating

child support and maintenance obligations.

Concerning Tricia’s use of her father’s company’s vehicle, Tricia’s

father testified that she (like other employees) could sometimes take the vehicle

home but that this was because she was often required to go directly from her

home in the vehicle to perform work functions. Despite any incidental personal

use of the company vehicle by Tricia, testimony indicated that her possession of

the vehicle also facilitated her performance of work functions. We cannot say the

evidence cited by the parties compels a finding that Tricia’s use of the company

vehicle was purely a gift for her personal use.

Our precedent indicates that income should be broadly construed

when determining gross income for purposes of child support calculations. Clary

v. Clary, 54 S.W.3d 568, 573 (Ky. App. 2001) (“when determining child support,

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the emphasis should be on including, not excluding, income especially where

including the income more accurately reflects a parent’s economic condition and

financial circumstances for that year.”)11 But the value of the use of a vehicle here

is perhaps not as easily quantifiable as the capital gains from a farm sale discussed

in Clary—which a party argued were like lottery winnings and should not be

counted in a single year. See id. at 573. Adding in an amount of imputed income

for the vehicle use would not necessarily more accurately reflect Tricia’s financial

condition for the year. Furthermore, had the family court imputed some income

for use of the car, the family court would still have power to deviate from the

guidelines if needed to afford justice. KRS 403.211(2). While Tricia received a

benefit in having use of the car, this benefit did not directly result in her receiving

additional funds which she could use to pay expenses—thus, the family court did

not abuse its discretion in not reducing child support or maintenance due to her use

of the car.

As for Tricia’s receipt of rent-free housing from her parents for a

period of months while divorce proceedings continued, this was surely a gift as

Tricia has not asserted that she would have to pay her parents back for the months

11
Our quote from Clary is a quote from a case from another jurisdiction, Howe v. Howe, 516
S.E.2d 240, 245 (Va. App. 1999). We need not delve into Virginia domestic relations law in
order to resolve this case but simply address the issues presented in this case in light of the
principle recognized in Clary, 54 S.W.3d at 373.

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she did not pay rent. Nonetheless, the family court did not commit reversible error

in not imputing income to Tricia for the receipt of rent-free housing under the

unique facts of this case.

Although not cited by the parties, we held that the family court’s not

imputing income for purposes of child support and maintenance for gifts from the

recipient spouse’s parents—specifically, free use of a house and vehicle as well as

monthly cash payments—was an abuse of discretion in Penner v. Penner, 411

S.W.3d 775, 782 (Ky. App. 2013). But we do not read Penner as mandating that

income must be imputed for purposes of determining child support and

maintenance in every instance in which a party receives free use of a residence or

vehicle. Instead, we believe that our conclusion that the family court abused its

discretion depended on the unique facts of that case. And despite some factual

similarities between this case and Penner (such as parents providing a house and a

car to an adult child), we do not discern an abuse of discretion in the family court’s

not imputing income for purposes of determining child support and maintenance

under the unique facts here. Here, the vehicle was provided to perform work for

the adult child’s parent’s business, and free housing was provided on a temporary

basis as a stopgap measure during divorce proceedings while the adult child’s

wages from full-time employment were insufficient to cover housing and other

expenses.

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 Even if $1,250 (the amount Tricia later agreed to pay her parents in

monthly rent) were added to her gross wages to arrive at her gross income for the

several months preceding trial, there was still a significant disparity in the parties’

income. Given this significant disparity in income along with other relevant

factors (including the length of the marriage, Tricia’s age and educational level,

and the parties’ standard of living12 during the marriage), we cannot say that the

family court abused its discretion in setting the amount ($1,000) or duration (four

years) of maintenance. See KRS 403.200(2) (establishing family court’s obligation

to set forth just amount and duration of maintenance considering listed factors).

No Reversible Error in Denying Request to Modify Maintenance

Finally, we review the family court’s denial of Doug’s motion to

modify maintenance. In reviewing this issue, it is appropriate to consider the

amended finding of Doug’s income in the agreed order resolving Tricia’s CR 59.05

motion—even though the family court did not resolve the CR 59.05 motion until

after briefing to this Court was completed. See CR 73.02(1)(e)(i):

If a party files a notice of appeal after the date of the
docket notation of service of the judgment required

12
We are aware of Doug’s assertions that the parties’ standard of living was relatively modest
during the marriage and/or that the couple lived beyond their means. But Tricia testified to the
parties being able to purchase a bigger, newer home a few years after their marriage and their
taking vacations and purchasing assets such as a boat and other recreational equipment and
another house to rent out to others during the marriage. Regardless of whether others might
enjoy a more opulent lifestyle or whether some might believe that the parties overspent based on
their income during their marriage, there was substantial evidence to support a finding that their
standard of living during the marriage afforded some comfort beyond mere subsistence.

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 by CR 77.04(2), but before disposition of any of the
motions [including motions filed under CR 59] listed in
this rule, the notice of appeal becomes effective when an
order disposing of the last such remaining motion is
entered.

With the amended finding about Doug’s income (which he stipulated

to), his income was still about three times higher than Tricia’s. The maintenance

award (effective May 15, 2018) is set to expire after four years at the latest—so

about May 2022. Also, the family court substantially reduced Doug’s child

support obligation considering his reduced income and his increased, now-equal

parenting time schedule.13 Tricia submitted as proof a copy of a lease agreement

and cancelled checks showing her obligation to pay $1,250 a month rent to her

parents, as well as proof that her earnings remained about the same as before, in

response to Doug’s request to decrease her maintenance award.

Finding that Doug was aware of his maintenance obligation when he

moved back to Kentucky and that he incurred substantially more debt in buying a

13
In its September 2019 order which also denied the motion to modify maintenance, the family
court reduced Doug’s child support obligation to about $400 a month. In the August 2020
agreed order, Doug stipulated to his gross income being about $800 more per month than found
in the September 2019 order. And this agreed order stated that the parties would calculate his
future child support obligation at a later date upon verification of some insurance details, thus
leaving the exact amount of child support unresolved at that time. However, since his stipulated
gross income was still significantly less than that found by the family court in March 2019
(roughly $7,000 a month in September 2019 versus $9,000 a month in March 2019), his child
support obligation going forward would presumably still be significantly reduced from that in the
March 2019 decree especially with the shared parenting time adjustment.

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new house and vehicle, the family court concluded that Doug’s maintenance

obligation was not unconscionable. Doug argues that due to his decrease in

income, the maintenance award had become unconscionable, defined as meaning

“manifestly unfair or inequitable” in Combs v. Combs, 787 S.W.2d 260, 261 (Ky.

1990) (quoting Wilhoit v. Wilhoit, 506 S.W.2d 511, 513 (Ky. 1974)).14 Doug

further contends that the family court failed to consider whether he could provide

for his own needs in rejecting his request to modify maintenance, citing KRS

403.200(2)(f). We note that KRS 403.200(2) concerns factors to be considered in

determining the proper amount and duration of maintenance—particularly in the

context of determining initial awards.

Regarding modification of an existing maintenance award, KRS

403.250(1) states that “the provisions of any decree respecting maintenance may

be modified only upon a showing of changed circumstances so substantial and

continuing as to make the terms unconscionable.” Although we would not suggest

that a family court could not consider the obligor spouse’s ability to provide for

14
Although Doug cites both Combs and Wilhoit in his brief for the definition of unconscionable,
neither case particularly calls for modification of maintenance in the case before us. Combs
concerned whether the recipient spouse’s cohabitation with an intimate partner could be grounds
for termination of maintenance. 787 S.W.2d at 261. In Wilhoit, maintenance had already ceased
due to the recipient spouse’s remarriage, and the Kentucky high court reversed the family court’s
denial of a request for an increase in child support based on factors including evidence of
increased costs of raising children. 506 S.W.2d at 512. At that time, KRS 403.250 governed
modification of child support as well as maintenance so that is why KRS 403.250 was construed
in Wilhoit. See id. at 513.

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his/her own needs in ruling on a motion to modify maintenance, maintenance can

only be modified if changed circumstances make the terms of the original award

unconscionable under KRS 403.250(1).

Here, the family court determined that any difficulty in paying the

original maintenance award was largely due to Doug’s voluntary action in taking

on more debt notwithstanding his maintenance obligation. Additionally, Doug

admitted in his testimony that he was aware of his maintenance obligation when he

bought his house and vehicle. Thus, under the facts here, we discern no reversible

error in the family court’s ruling, which is consistent with precedent including

Burnett v. Burnett, 516 S.W.2d 330, 332 (Ky. 1974), overruled on other grounds

by Anderson v. Johnson, 350 S.W.3d 453, 459 (Ky. 2011) (holding that obligor

spouse’s incurring substantial debt was not a change “of such character as to make

the terms of the original judgment unconscionable within the requirements of KRS

403.250”). See also Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993) (child

support reduction unwarranted where the only change shown was obligor’s

voluntarily taking on substantial debt).

Considering all relevant factors (including the disparity in the parties’

income, the reduction in child support due, the limited duration of the maintenance

award, and Doug’s voluntarily incurring more debt despite awareness of his

existing obligations), the family court did not err in finding that the statutory

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standard for modifying maintenance was not met, nor did the family court abuse its

discretion in denying the motion to modify maintenance.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Boone

Family Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jeffrey J. Otis Michael J. McMain
Covington, Kentucky Florence, Kentucky

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