concurring.
As indicated, it is my view that entertaining the appeal in this case was necessitated by the existence of the Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973). Supra, cited in majority opinion.
In that controversial case, the Court, in spite of a legislatively enacted no-fault divorce statute, declared that fault, while not to be considered in determining whether a spouse is entitled to maintenance, may, nevertheless, be considered as to the amount of that maintenance.
The rationale advanced by the Court is as follows:
Be that as it may, it is for this court to interpret the law, not to enact legislation. It is noted that the Act presents two requisites for maintenance: One, that the spouse seeking maintenance lacks sufficient property to support himself, and two, he is unable to support himself through appropriate employment, or is the custodian of a child which prevents his seeking employment. It is plain up to this point that fault is not to be considered. The next subsection provides that the “maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: * * This provision throws wide open the chancellor’s discretionary considerations insofar as the amount is concerned. What might be deemed “just” could very well include marital misconduct.
Id. at 137. I will not burden the reader and unduly lengthen this dissent with an extensive criticism of the Chapman opinion. It is my belief that the Chapman opinion opens— in part — that which the No-Fault Act intended to close; i.e., the injection of fault into a divorce ease. What does the statute itself say? KRS 403.110 is as follows:
This chapter shall be liberally construed and applied to promote its underlying purposes, which are to:
(3) Mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of the marriage. (emphasis added.)
Once a financial determination has been made by the trial court that a spouse is needful of maintenance, and that the other must pay, based on the need of one and the ability of the other to pay, of what possible relevance is fault? The purpose of the no-fault statute — as specifically is stated — is to “mitigate potential harm to spouses and children caused by the process of dissolution of the marriage.” What could be more harmful to children and their spouses than to open up the can of worms of fault? Nothing!
For additional thoughts on the correctness of Chapman, I invite the readers to read Platt v. Platt, Ky.App., 728 S.W.2d 542 (1987). In addition, Judge Johnstone, in a concurring opinion to the Court of Appeals majority in the case sub judice, states his view of Chapman,
I concur in several important points made in the majority’s opinion. First, it may well be time to revisit the issue of whether fault should be considered at all when determining an appropriate award of maintenance. Even the Chapman Court recognized that seldom is one party blameless and the other without some redemptive features. Fault, by the very nature of the evidence it evokes, has the tendency (1) to exacerbate the problems which cause the breakdown of a marriage; (2) to cause farther damage to the parties and children, if any, at a point when redemption and reconciliation are needed; and (3) to blur the other issues that trial judges must resolve.
Second, KRS 403.200 is designed to be rehabilitative, not punitive. The goal is to assist the party seeking maintenance to become self-supporting, if possible, within a reasonable length of time.
*326Third, it is absurd to use fault in an attempt to punish a spouse who is mentally ill, or to use his or her mental illness as a bar to maintenance. The majority makes the important point that Kentucky has refused for many years to deny maintenance to a spouse due to marital misconduct which was attributable to a disturbed mental condition.
I think, however, that we need go no further than to reiterate such holding. If a spouse seeking maintenance can prove that marital misconduct was caused by a recognized mental disease or condition, that marital misconduct shall not be used to diminish an award of maintenance, (emphasis added.)
I totally agree with Judge Johnstone.
In the present case, if Chapman were not rearing its ugly head, the only issue to have been decided would have been appellee’s financial needs and abilities, and the appellant’s similar financial needs and abilities. Those (and others) are the queries authorized by the statute. Fault has no relevance to the issue in this case — or for that matter — in any case under the No-Fault Act.
I would overrule Chapman.