Tudor v. Tudor

MAZE, Judge,

Concurring.

While I am reluctant to reverse the trial court’s ruling on a discretionary matter, I entirely agree with the majority that the trial court misapplied the facts to the applicable law. A spouse’s decision to remarry and start a new family does not negate his obligation to pay his maintenance obligation to his prior spouse. In *794this case, that obligation rests on Chauncey alone, and his new wife has no obligation to contribute to Melanie’s support. A trial court abuses its discretion when its decision rests on an error of law, such as the application of an erroneous legal principle or a clearly erroneous factual finding. See Miller v. Eldridge, 146 S.W.3d 909, 915 n. 11 (Ky.2004). The trial court’s improper reliance upon the income of Chaun-cy’s new wife and expenses associated with his new children amounts to the application of an erroneous legal principle and therefore compels reversal in this case.

Nevertheless, the facts of this case could very well support the trial court’s decision to deny Chauncey’s motion on other grounds. KRS 403.250(1) allows the provisions of any decree respecting maintenance to be modified “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” “Unconscionable” means “manifestly unfair or inequitable.” Shraberg v. Shraberg, 939 S.W.2d 330, 333 (Ky.1997), and Wilhoit v. Wilhoit, 506 S.W.2d 511, 513 (Ky.1974). Since the policy of the statute is for relative stability, evidence for the movant must be compelling for the trial court to grant the relief requested. Bickel v. Bickel, 95 S.W.3d 925, 927-28 (Ky.App.2002).

As the majority correctly points out, the trial court must consider Chauncey’s motion to reduce maintenance based only on whether his circumstances have changed in a substantial and continuing way such that they are rendered unconscionable. The income of Chauncey’s new wife and the additional expenses associated with his new children are relevant only to the extent that they affect Chauncey’s ability to pay maintenance to Melanie. The majority also correctly notes that the trial court should consider whether the reduction in Chauncey’s income resulted from his voluntary underemployment.

When making an original determination of the appropriate amount and duration of maintenance, KRS 403.200(2) directs the trial court to consider several factors, including a spouse’s financial resources, ability to find appropriate employment, and the standard of living enjoyed during the marriage. This court has held that the statutory language implicitly permits a court to impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance. McGregor v. McGregor, 334 S.W.3d 113, 117 (Ky.App.2011). Likewise, the court may consider a spouse’s voluntary unemployment or underemployment when making the determination whether continued enforcement of the existing obligation would be unconscionable.

While Chauncey’s income has been reduced by nearly half, it is not clear from the record whether this reduction was due to general economic circumstances, from his own choices, or some combination thereof. His prior employment history clearly suggests that he is capable of earning more than he does now, and is likely to recover most of his previous earning capacity. Indeed, the trial court’s original decree found that Chauncey is “remarkably capable at auto sales, and especially, lot management,” and noted that he has been able to progress in his career and find well-paying jobs even during times of downturn and personal adversity. In the absence of a showing of other facts relevant to his earning capacity, the trial court may reasonably find that Chauncey has failed to show that the current change in his circumstances is not likely to be substantial and continuing.

When these factors are properly considered, the trial court may reach the same *795conclusion in denying Chauncey’s motion to modify maintenance. I am hesitant to remand this matter for further proceedings entailing additional time and expense toward what could be a foregone conclusion. However, I must agree with the majority that Chauncey is entitled to have his motion decided based on an application of the correct legal principles. Therefore, I fully concur with the reasoning and the result of the majority opinion.