RENDERED: MAY 26, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1347-MR
JAMES ARTHUR HARMON, JR. APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. FAMILY COURT DIVISION
HONORABLE JANIE MCKENZIE-WELLS, SPECIAL JUDGE
ACTION NO. 18-CI-00491
WANDA B. HARMON APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: James Arthur Harmon, Jr., brings this appeal from orders
entered in the Floyd Circuit Court, Family Court Division (family court) on
September 9, 2021, October 18, 2021, and November 15, 2021, dividing marital
property and awarding maintenance to Wanda B. Harmon. We affirm.
James and Wanda were married June 3, 1967. The parties separated
after fifty years of marriage on April 8, 2018. During the marriage, James and
Wanda both worked outside the home; however, at the time of separation both
parties were retired. On July 25, 2018, Wanda filed a petition for dissolution of
marriage in the family court. Following a final evidentiary hearing, Findings of
Fact, Conclusions of Law, Decree of Marriage and Order, and Judgment were
entered on September 23, 2019 (September 23, 2019, Judgment). Relevant to this
appeal, the family court divided the parties’ marital property1 and awarded Wanda
permanent maintenance of $1,000 per month. James pursued a direct appeal to this
Court (Harmon v. Harmon, No. 2020-CA-0072-MR, 2021 WL 3435511 (Ky. App.
Aug. 6, 2021)).
By Opinion rendered August 6, 2021, this Court affirmed in part and
vacated in part the family court’s September 23, 2019, Judgment and remanded for
proceedings consistent with the Opinion. In its August 6, 2021, Opinion, this
Court of Appeals affirmed the family court’s order as to the division of marital
property but vacated and remanded as to the award of permanent maintenance to
Wanda in the amount of $1,000 per month. Upon remand, the family court was
directed to make the requisite findings of fact required by Kentucky Revised
Statutes (KRS) 403.200(1)(a) and (b) regarding whether Wanda lacked sufficient
1
Regarding the division of marital property, the family court ordered the marital residence
belonging to James Arthur Harmon, Jr., and Wanda B. Harmon be sold and the proceeds divided
equally between the parties after payment of the mortgage. The family court further ordered that
James’s Merrill Lynch retirement account would also be divided equally after an offset for
marital guns she sold. The court also divided myriad items of personal property belonging to the
parties including multiple vehicles.
-2-
property to provide for her reasonable needs and whether she was able to support
herself through appropriate employment. The Court further directed that if the
family court made the requisite findings of fact and deemed an award of
maintenance appropriate, the family court must then consider the factors
enumerated in KRS 403.200(2)(a)-(f) to determine the amount and duration of the
maintenance award.
Upon remand, the family court made the following findings of fact in
its September 9, 2021, Order:
[T]he parties were married for approximately fifty-one
(51) years, before they separated in 2018. Both parties
are over seventy (70) years of age at this time. [Wanda]
draws social security benefits in the amount of $1,124.00
per month and [James] receives social security benefits in
the amount of $2,090.00 per month plus $700.00 per
month from a retirement account with Merrill Lynch.
This results in a discrepancy in income received by the
parties. Further, [James] previously agreed and requested
Merrill Lynch to make monthly payments from his
retirement account in the amount of $1,800.00 to
[Wanda] as maintenance herein. [James] further testified
to expenses that totaled approximately $1,930.00 per
month, not counting entertainment expenses. Therefore,
[Wanda] has shown, by her testimony, her need for
maintenance based on her age (over 70), the length of her
marriage (51 years), and her current income, and [James]
has shown the ability to pay maintenance herein as his
income exceeds his necessary expenses. . . .
September 9, 2021, Order at 2. The family court again awarded Wanda $1,000 per
month in maintenance but limited it to a period of ten years. Notably absent from
-3-
the family court’s September 9, 2021, Order was any finding regarding whether
Wanda had sufficient property to provide for her reasonable needs and whether she
was able to support herself through appropriate employment.
James subsequently filed a motion to alter, amend, or vacate the
September 9, 2021, Order and filed a motion for more specific findings of fact. By
Order entered October 18, 2021, the family court denied James’s motion to alter,
amend, or vacate but reserved ruling upon James’s motion for more specific
findings of fact. Then, by Order entered November 15, 2021, the family court
ruled on James’s motion for more specific findings of fact as follows:
1. That [James’s] motion for additional or more specific
findings should be a moot point as the Court has
already addressed this matter. However, the Court
now reiterates their position and findings as to the
award of maintenance.
2. That the Court stands by the Findings of Fact and
Conclusions of Law and Judgment entered by the
Court and states that per the requirements of KRS
403.200, [Wanda] qualified for and was due the
permanent award of maintenance given to her.
3. That [Wanda] fully established her need for
maintenance which was the first prong of the test.
Even with the division of marital assets [Wanda]
would be without financial resources to sustain the
lifestyle to which she had become accustomed.
4. Further, that per KRS 403.200, the Court took into
account the very lengthy marriage of the parties and
the age of the litigants. It is unlikely, to the point of
-4-
impossible, for [Wanda] to become gainfully
employed at her age and health status.
5. That the record shows the parties were not litigants of
great means. However, [Wanda] is by law entitled to
live in the lifestyle she had become accustomed
during the marriage, KRS 403.200 (2) (c), and
therefore the award of maintenance was proper.
6. The testimony shows that [James] is left, after the
division of property, reasonable assets to maintain his
lifestyle.
7. That Newman v. Newman, 597 S.W. 2d 137 [(Ky.
1980)], dictates that an award of maintenance is under
the discretion of the trial court and shall not be
overturned unless there is clear error. In the case at
bar, the elements of both prongs of the test set forth in
KRS 403.200 have been met and proved. The award
of maintenance is not in err.
November 15, 2021, Order a 1-3. This appeal follows.
James initially contends the family court abused its discretion and
failed to make the requisite findings of fact under KRS 403.200(1)(a) and (b)
regarding whether Wanda had sufficient property to meet her reasonable needs and
whether Wanda was able to support herself through appropriate employment. We
disagree.
It is well settled that KRS 403.200(1)(a) and (b) must both “be
satisfied before the family court may award maintenance.” Shafizadeh v.
Shafizadeh, 444 S.W.3d 437, 446 (Ky. App. 2012). And, it is equally settled that
the family court has “dual responsibilities” pursuant to KRS 403.200: “one, to
-5-
make relevant findings of fact; and two, to exercise its discretion in making a
determination on maintenance in light of those facts.” Wattenberger v.
Wattenberger, 577 S.W.3d 786, 788 (Ky. App. 2019) (citation omitted). It is only
after the “threshold conditions of KRS 403.200(1)” have been satisfied that the
family court may “legally consider the factors enumerated in KRS 403.200(2)(a)-
(f)” to determine the amount and duration of the maintenance award.
Wattenberger, 577 S.W.3d at 787-88 (citation omitted).
The family court’s findings of fact are viewed pursuant to Kentucky
Rules of Civil Procedure (CR) 52.01. CR 52.01 provides that “[f]indings of fact,
shall not be set aside unless clearly erroneous[.]” A finding of fact is not clearly
erroneous if supported by substantial evidence of a probative value. Moore v.
Asente, 110 S.W.3d 336, 353-54 (Ky. 2003).
KRS 403.200(1) governs an award of maintenance and provides:
(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked
personal jurisdiction over the absent spouse, the court
may grant a maintenance order for either spouse 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 . . . .
-6-
In this case, the family court clearly found that even after the division
of marital property Wanda would not have sufficient property to provide for her
needs. The family court, likewise, found it was almost impossible that Wanda
could become employed given her age and her health status, thus precluding
Wanda’s ability to support herself through appropriate employment. Therefore, we
conclude the family court made the requisite findings of fact pursuant to KRS
403.200(1)(a) and (b) and did not abuse its discretion in determining that Wanda
was entitled to maintenance.
James finally contends that the family court abused its discretion as to
the amount and duration of the maintenance award to Wanda. More particularly,
James asserts that even if Wanda satisfied the threshold requirements of KRS
403.200(1)(a) and (b), the family court abused its discretion by awarding Wanda
maintenance of $1,000 per month for a period of ten years.
It is well established that if KRS 403.200(1) is satisfied, the
maintenance award shall be in an amount and duration deemed just after
considering the factors set forth in KRS 403.200(2)(a)-(f). KRS 403.200(2)(a)-(f)
includes consideration of the financial resources of the party seeking maintenance;
the time necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment; the standard of living
established during the marriage; the duration of the marriage; the age and the
-7-
physical/emotional condition of the spouse seeking maintenance and the ability of
the spouse from whom maintenance is sought to meet his needs while meeting
those of the spouse seeking maintenance.
It is axiomatic that the amount and duration of a maintenance award
are within the sound discretion of the family court. Gentry v. Gentry, 798 S.W.2d
928 (Ky. 1990). An award of maintenance may only be reversed where there has
been a clear abuse of discretion. Combs v. Combs, 622 S.W.2d 679 (Ky. App.
1981). And, of course, the family court’s findings of fact on this issue are
conclusive if supported by substantial evidence of a probative value. Spurlin v.
Spurlin, 456 S.W.2d 683 (Ky. 1970); CR 52.01.
Having reviewed the record, we are simply unable to conclude that the
family court abused its discretion by awarding Wanda maintenance of $1,000 per
month for a period of ten years. The family court engaged in a thorough analysis
and considered the appropriate factors set forth in KRS 403.200(2)(a)-(f). For
example, the family court found that due to Wanda’s age and health status it was
likely impossible that she could find appropriate employment. The family court
also noted the length of the parties’ marriage, which was more than fifty years.
Finally, the family court also pointed out that James had the ability to pay
maintenance to Wanda while still meeting his needs. Therefore, the family court
made detailed findings of fact on this issue and those findings are supported by
-8-
substantial evidence. Accordingly, we reject James’s contention that the family
court erred in awarding Wanda maintenance of $1,000 per month for a period of
ten years.
In sum, we are of the opinion that the circuit court did not commit
reversible error in awarding Wanda $1,000 per month in maintenance for a period
of ten years.
For the foregoing reasons, the orders of the Floyd Circuit Court,
Family Court Division, are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James Brandon May Jennifer Burke Elliott
Paintsville, Kentucky Prestonsburg, Kentucky
-9-