Everett Scott Hoffman v. Gloria Hoffman (Now Thomas)

RENDERED: DECEMBER 8, 2023; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-1641-MR

EVERETT SCOTT HOFFMAN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 05-CI-504744

GLORIA HOFFMAN (NOW
THOMAS) APPELLEE

AND

NO. 2017-CA-1690-MR

GLORIA HOFFMAN (NOW
THOMAS) CROSS-APPELLANT

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 05-CI-504744

EVERETT SCOTT HOFFMAN CROSS-APPELLEE

AND
 NO. 2021-CA-1367-MR

EVERETT SCOTT HOFFMAN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 05-CI-504744

GLORIA HOFFMAN (NOW
THOMAS) APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, LAMBERT, AND MCNEILL, JUDGES.

JONES, JUDGE: Three related appeals are before this Court: Appeal No. 2017-

CA-1641-MR; Cross-Appeal No. 2017-CA-1690-MR; and Appeal No. 2021-CA-

1367-MR. In Appeal No. 2017-CA-1641-MR and Appeal No. 2021-CA-1367-

MR, the Appellant/Cross-Appellee, Everett Scott Hoffman (“Scott”), seeks review

of the family court’s denial of his 2007, 2008, and 2013 motions to modify

maintenance. For the reasons set forth below, we affirm the family court’s denial

of Scott’s motions to modify maintenance.

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 In Appeal No. 2017-CA-1690-MR, which like the other 2017 appeal

was filed prior to the family court ruling on the parties’ pending CR1 59.05

motions, the Appellee/Cross-Appellant, Gloria Hoffman, asserted that the family

court’s September 12, 2017 order should be remanded with instructions for the

family court to calculate her maintenance arrearage. The family court

subsequently entered an arrearage order, mooting the issue raised by Gloria in her

cross-appeal.

I. BACKGROUND

On December 29, 2005, Scott filed a petition to dissolve his marriage

to Gloria. At that time, the parties had been married for close to eighteen years.

On May 18, 2006, the family court dissolved the parties’ marriage by entering a

limited decree of dissolution. All remaining issues concerning property division,

child custody and support, as well as maintenance were reserved for further ruling.

On June 19, 2006, Gloria and Scott executed a “partial property settlement

agreement.” This agreement settled many of the issues related to division of the

parties’ property. However, the parties left several issues related to the division of

their property for the family court to decide, including a division of Scott’s military

retirement pay and survivorship benefits and Gloria’s request for maintenance. In

1
Kentucky Rules of Civil Procedure.

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an order dated July 11, 2006, the parties agreed that Gloria was entitled to receive

thirty-six and one-half percent (36.5%) of Scott’s military retirement.

Prior to the final evidentiary hearing on the outstanding issues, the

parties signed an agreed order for Gloria to receive temporary support “pending

further orders of the court.” Therein, the parties agreed Scott would pay Gloria

temporary maintenance of $2,000.00 per month, but once Gloria began receiving

payments from her share of Scott’s military retirement, her maintenance would be

reduced by a corresponding amount. An agreed order to this effect was entered on

July 11, 2006. Through the rest of this Opinion, we refer to this order as the “2006

Agreed Order.”

On March 24, 2007, the family court made findings of fact and

conclusions of law concerning various outstanding issues related to child custody,

child support, maintenance, debts, and attorneys’ fees. With respect to

maintenance, the family court imputed Gloria with a yearly income of $20,000.00

for the first two years and $40,000.00 yearly income thereafter. The court did not

impute any income from Gloria’s rental property because it found that there was

not any clear gain from the property. The family court found that Scott’s gross

monthly income was $13,941.34, and the court did not include any income from

Scott’s rental property for the same reasons it did not include Gloria’s. After

having determined the parties’ incomes, the family court concluded that Gloria

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lacked sufficient property, including marital property, to provide for her reasonable

needs, and that she was, at that time, unable to support herself through appropriate

employment. The family court determined that Scott could provide for himself

while simultaneously providing some maintenance to Gloria and instructed him to

pay Gloria $2,700.00 monthly for two years and thereafter $2,000.00 monthly for

ten years for a total of $304,800 over twelve years.

Scott filed a CR 59.05 motion to amend the family court’s

maintenance award to Gloria, arguing that the award should be offset by the

amount that Gloria receives from his military pension. Gloria countered that the

family court should not alter the maintenance award based on any military

retirement she received because the retirement was part of Gloria’s marital

property that had already been equitably awarded to her by the family court.

Around the same time, on June 14, 2007, Scott moved the family

court to reduce his monthly maintenance to Gloria to $1,564.14 per month.

Throughout the rest of this Opinion, we refer to this motion as “the 2007 Motion.”

He explained that when he was ordered to pay Gloria maintenance of $2,700.00

per month, she was not receiving anything from his military retirement. However,

since entry of the order, Gloria had begun receiving $1,135.14 per month from the

military pension.

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 The family court denied Scott’s motion to alter, amend, or vacate by

order entered June 25, 2007; no separate ruling was issued on the 2007 Motion,

leaving that motion pending before the family court.

On July 20, 2007, Scott appealed the family court’s March 29, 2007

judgment arguing, in part, that the family court should have applied the 2006

Agreed Order and reduced Gloria’s maintenance in relation to her share of his

military benefits. We rejected Scott’s arguments and affirmed the family court’s

maintenance award as to both amount and duration but reversed the family’s order

that Scott had to pay $10,736.40 for Gloria’s attorneys’ fees. E.H. v. G.H., No.

2007-CA-001458-MR, 2008 WL 4889571 (Ky. App. Nov. 14, 2008) (“Hoffman

I”).2

2
Since Hoffman I, there appears to have been some dispute whether Scott’s arguments
concerning the 2006 Agreed Order were actually considered by us as part of Hoffman I. In
Hoffman I, we summarized Scott’s argument as follows:

In an order dated July 11, 2006, the parties agreed that
because some of [Scott’s] retirement was nonmarital property,
[Gloria] was to receive 36.5 percent of [Scott’s] retirement
account. Once this amount was received, it was to be deducted
from the maintenance obligation of [Scott]. This amount has not
been deducted from the maintenance obligations established in the
order at issue in this appeal. [Gloria] claims that this was a
temporary agreement, and that the court’s current order should
stand.

Id. at *3. This language from Hoffman I makes clear that we were aware of and considered
Scott’s arguments regarding the effect of the 2006 Agreed Order as part of our prior opinion.
Notwithstanding those arguments, we affirmed the family court’s maintenance award to Gloria
as to both amount and duration. Scott filed a petition for rehearing, which was denied by this
Court by order entered January 12, 2009. Neither Scott nor Gloria petitioned the Kentucky

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 During the pendency of Hoffman I, Scott filed a second motion with

the family court seeking to reduce his maintenance. Through the rest of this

Opinion, we refer to this motion as “the 2008 Motion.” Since no ruling had been

issued on the 2007 Motion, Scott again requested that his maintenance be reduced

pro rata by whatever amount Gloria was receiving from the military pension. He

also asserted that Gloria’s monthly expenses had been reduced because she had

paid off mortgages on both her primary residence and a rental property she owned.

It appears that Scott’s 2008 Motion may have been misplaced or

overlooked by the clerk’s office since the main record was on file with our Court at

the time. In any event, the case lay dormant for several years without a ruling on

either the 2007 Motion or the 2008 Motion. Even so, Scott appears to have taken

matters into his own hands and had begun unilaterally reducing Gloria’s monthly

maintenance payments because, in July 2013, Gloria filed a motion requesting the

family court to award her maintenance arrearages, plus interest at the legal rate

based upon what Gloria described as Scott’s “unilateral offset of her maintenance

award.” Gloria supported her motion with an affidavit in which she explained that

since entry of the family court’s March 29, 2007 order, Scott had “routinely

Supreme Court for discretionary review, and Hoffman I became final on February 12, 2009,
thirty-one days after entry of our denial order.

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deducted from his maintenance obligation a sum equal to Gloria’s share of

[Scott’s] military pension.” At the time she filed her motion, Gloria estimated that

Scott owed her $107,456.22 in unpaid maintenance.

Scott responded to Gloria’s motion asserting that he was entitled to

reduce his maintenance by the amount Gloria was receiving from his military

pension, and that his position was supported by the parties’ 2006 Agreed Order.

Scott further asserted that at the time the family court heard the original proof

regarding the parties’ income, Gloria was not yet receiving a monthly benefit from

Scott’s military retirement. According to Scott, Gloria began receiving the military

pension payment in June 2007 some three months after the family court’s

maintenance award, and that Gloria’s receipt of those benefits constituted a change

in circumstances justifying a reduction of her monthly maintenance award, which

is what had prompted the 2007 Motion and the 2008 Motion.

Scott then filed another motion on September 13, 2013. Therein,

Scott requested the family court to modify both its child support and maintenance

awards.3 Through the rest of this Opinion, we refer to this as “the 2013 Motion.”

In the 2013 Motion, Scott argued that his obligations should be reduced because

his financial situation had drastically changed since 2007 when the family court

3
The parties’ children subsequently reached majority, and Scott was relieved of his child
support obligations. His current appeals relate only to the denial of his request to modify
maintenance.

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made its original child support and maintenance awards. Scott explained that in

2007 he had only recently left federal employment, and, at that time, his

professional contacts were such that he was able to obtain significant contracts

with the federal government. By 2013, however, Scott’s contacts had grown stale

and his income from contracting work had ended for all intents and purposes. He

stated that in 2012 he earned $32,721.00, plus $13,372.00 from his independent

contracting business, with losses of $13,084.00, and his financial picture for 2013

was about the same. He also asserted that Gloria was receiving $1,586.65 per

month from his military pension, which was income the family court had not

attributed to Gloria back in 2007.

On October 11, 2013, the family court held a hearing on the pending

motions (Scott’s 2007, 2008, and 2013 Motions to reduce Gloria’s maintenance

and Gloria’s motion to hold Scott in contempt). It subsequently entered an order

on March 27, 2014. As to maintenance, the family court explained as follows:

Since the maintenance finding has been in place,
[Scott] has unilaterally deducted [Gloria’s] maintenance
by her share of his Marine Corps retirement payments.
[Scott] contends that the parties were already in
agreement that [Gloria’s] maintenance shall be reduced
by her portion of the retirement payments per the parties’
Agreed Order entered July 11, 2006 as it constituted a
“judicial admission.” However the Agreed Order, by its
own language, was considered to be temporary support
pending further orders of the court. The Court can only
interpret the four corners of the document which was
drafted and agreed to by the parties. If the parties

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 intended that the maintenance terms were to be
permanent then they would have drafted it as such.
Therefore, the March 29, 2007 Findings of Fact is a
subsequent order that replaced the temporary support
agreement.

Additionally, the Kentucky Court of Appeals
found that this Court properly considered the factors
enumerated in KRS[4] 403.200 relating to maintenance,
which includes the financial resources of the parties
seeking maintenance, and found that the maintenance
award was not clearly erroneous. Therefore, this Court
accurately calculated [Gloria] and [Scott’s] respective
income in order to determine maintenance.

• June 7, 2007 Motion to Reduce Maintenance

In June of 2007, [Gloria] began receiving her share
of [Scott’s] retirement, and on June 7, 2007 [Scott] filed
a motion requesting implementation of the parties’ July
11, 2006 Agreed Order. [Scott’s] motion and affidavit
was only supported by the single fact that [Gloria] was
receiving an additional $1,135.14 per month through her
portion of the Marine Corps retirement payment, which
reduced [Scott’s] retirement by said amount. However,
the parties[’] combined income at that time greatly
exceeded the Child Support Guidelines and [Scott’s]
income remained substantially greater than [Gloria’s], by
over $10,000.00, even with [Scott’s] retirement
reduction. The substantial disparity in the parties’
income is not altered by the minor change of [Gloria’s]
receipt of her share of [Scott’s] retirement.

Further, on November 21, 2007 a motion was filed
by [Gloria] for [Scott] to show cause for contempt
because he continued to alter the monthly child support
and maintenance payments. The motion indicated that
the Court had verbally admonished [Scott] and instructed

4
Kentucky Revised Statutes.

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 him not to deduct any money due to [Gloria] without
Court approval. Therefore Scott’s June 7, 2007 motion
for maintenance reduction is denied as it does not rise to
a change in circumstance so substantial and continuing as
to make the terms of the maintenance unconscionable.

• July 14, 2008 Motion to Reduce Maintenance

On July 14, 2008, [Scott] filed an additional
motion to reduce maintenance citing [Gloria’s] receipt of
[Scott’s] retirement and [Gloria’s] recent change in the
mortgage on the Owl Creek property and the Plymouth
rental property. According to [Scott’s] affidavit [Gloria]
was receiving $1,135.14 through his retirement and
indicated that [Gloria] paid off both mortgages in full.
By paying the mortgages in full, [Gloria] would net
$850.00 to $1,000.00 per month (less taxes and
insurance) from the rental property and she no longer had
[an] $1,800.00 monthly mortgage on the Owl Creek
property. Basically, [Gloria] was receiving an additional
$2,000.00 per month and was able to save $1,800.00 in
monthly expenses. This Court finds that there was a
substantial and continuing change in circumstance and
[Gloria’s] maintenance is reduced by her share of
Father’s retirement effective July 14, 2008.

Therefore, since [Gloria’s] maintenance is reduced
by [Scott’s] retirement effective July 14, 2008, [Gloria] is
entitled to reimbursement for the maintenance amount
[Scott] incorrectly reduced in 2007 as well as from
January through June or six (6) months of 2008. . . .
Therefore, [Gloria] shall receive reimbursement from
[Scott] in the amount of $15,731.64[.]

While the family court’s March 27, 2014 order addressed the 2007

and 2008 Motions, it did not address the 2013 Motion, which included additional

arguments about the substantial and continuing change in Scott’s income that he

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asserted had occurred following the family court’s entry of its original maintenance

and child support awards in 2007.

The parties’ counsel did not receive the family court’s March 27, 2014

order until April 9, 2014 – thirteen days after the order’s entry. On April 17, 2014,

eight days after the parties’ counsel received the March 27, 2014 order, Gloria

moved for relief pursuant to CR 59.05 and/or CR 60.02. She asserted that the

family court had based its ruling on incorrect information insomuch as she had

only refinanced the two mortgages at issue, not paid them off.

On August 17, 2015, the family court denied Gloria’s motion on the

basis that it lacked the jurisdiction to rule because Gloria had filed it more than ten

days after the order’s entry. Gloria appealed the denial to this Court arguing the

family court incorrectly determined that it lacked jurisdiction to rule. We agreed,

holding:

The family court found that both attorneys
involved did not receive the order until thirteen days after
its entry. Because both attorneys received the order on
the same date at different addresses, the only plausible
explanation for the delay is that the clerk did not
promptly mail the notices of their entry. The family
court expressly stated that it was “not opposed, if the
rules so allowed, to reconsider the matter.” Pursuant to
CR 60.02, the family court had the authority to grant
Gloria relief and remedy the prejudice caused by the
clerk’s failure to promptly mail the order reducing
maintenance. With the entry of a new order, all time
periods for post-order motions will begin.

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Hoffman v. Hoffman, 500 S.W.3d 234, 237-38 (Ky. App. 2016) (“Hoffman II”).5

With the clock for CR 59.05 motions restarted, Scott also requested

relief from the March 2014 order. By order entered September 12, 2017, the

family court granted Gloria’s CR 59.05 motion, denied Scott’s CR 59.05 motion,

and specifically noted that Scott’s 2013 Motion had never been ruled on making it

inappropriate for CR 59 relief. Specifically, the family court stated:

Scott’s maintenance obligation to Gloria began in
April 2007 pursuant to this Court’s Order, which required
Scott to pay maintenance in the amount of $2,700.00 per
month for a period of two years and thereafter $2,000.00
per month for ten years. The Order stated [m]aintenance
shall be for a fixed period and shall terminate only at
Gloria’s death or in the event of substantial and
continued changed circumstances. In its March 27, 2014
Order, the Court found that [Gloria’s] receipt of her share
of [Scott’s] retirement did not rise to a change in
circumstances so substantial and continuing as to make
the terms of the maintenance unconscionable or to
warrant a termination pursuant to the Court’s March 29,
2007 [Order]. Therefore, the Court denied Scott’s 2007
motion to reduce maintenance. The Court did find a
substantial and continued change in circumstances
occurred, however, when Gloria’s mortgage changed.
The Court found that by paying [the] two mortgages [off]

5
During the pendency of Hoffman II, Gloria moved the family court to enter a stay of its March
27, 2014 order. She explained that, since entry of the order, Scott had begun deducting the full
amount of her share of Scott’s military pension as well as the additional sum of $300.00 per
month based on the family court’s finding that Gloria owed Scott reimbursement of certain
items, “which was again based on the faulty finding of fact that Gloria had paid off two
mortgages when in fact she merely refinanced them.” She stated that as result of Scott’s
deductions, she was only receiving $61.88 per month instead of the $2,000.00 per month the
family court had originally awarded her. On July 5, 2016, the family court entered an order
denying Gloria’s motion to stay.

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in full, [Gloria] would net between $850.00 to
$1[,]000.00 per month (less taxes and insurance) from
her rental property and that she no longer had a
$1,800.00 monthly mortgage. That finding is the basis
for Gloria’s [motion to alter, amend, or vacate].

The Court gave great consideration to all evidence
and testimony in making the March 27, 2014 ruling.
Both parties presented testimony regarding their financial
circumstances. The Court gave careful consideration to
the facts and determined that by paying off her
mortgages, Gloria gained financial benefit, which
coupled with Gloria receiving her portion of Scott’s
retirement payments amounted to a change in
circumstances warranting a reduction in her maintenance
reward [sic].

However, the Court erred in its finding that Gloria
did not have mortgage payments by paying off her two
mortgages on the Plymouth Rd. and Owl Creek
properties. Although the Court’s finding that Gloria paid
off her mortgages is correct, the Court’s Order did not
include findings that Gloria paid off her mortgages as
part of a refinancing on the two mortgages and that she
continued to have mortgage payments after the refinance.
The Court relied on Scott’s affidavit claiming that Gloria
no longer had a mortgage payment on the rental property
located on Plymouth Rd. as well as her residence in Owl
Creek. The Court gave great deference to the affidavits
supplied by the parties regarding the large financial
tracing and motions to reduce maintenance as they refer
back to 2007. It is now clear that Gloria merely
refinanced both homes but continued to have mortgage
payments of approximately the same amount she had
prior to refinancing. Further, Gloria’s tax documents
from 2007-2012 reflect mortgage interest deductions on
both homes. Consequently, Gloria was not receiving an
additional $2[,]000.00 per month through net rental
income nor was she able to save $1,800.00 in monthly
expenses on her Owl Creek [p]roperty.

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 Finally, Scott’s Marine Corps Retirement is
marital property and Gloria is entitled to her
proportionate share. Gloria’s receipt of her share of
Scott’s retirement is not considered to be a reduction in
Scott’s income but it is an allocation and distribution of
marital property.

Although both parties incurred some changes in
circumstance, they were not so substantial and continuing
as to make the terms of maintenance unconscionable.
Therefore, Gloria’s [motion to alter, amend, or vacate]
regarding the 2008 Motion to reduce maintenance is
GRANTED. Scott remains entitled to his restitution in
the amount of $24,094.09 [attorneys’ fees Scott overpaid]
while Gloria is now entitled to her maintenance
arrearages, which were $154,796.33 through 2016.

Scott filed a third motion to reduce maintenance in
2013, which he discussed in his pleadings after the Court
of Appeals opinion. He argued the changes motivating
the 2008 motion combined with subsequent material
changes in both parties’ financial resources support his
2013 motion. In support of his motion, Scott claimed he
lost his job in 2008 resulting in a reduction in his income.
Scott had obtained new employment by the date of the
October 2013 hearing, however, his salary of $72,800.00
and retirement/disability benefits of $4,200.00 per month
were less than the $167,296.00 annual income on which
the maintenance was set. The Court’s March 27, 2014
Order did not address Scott’s 2013 motion. The main
basis for the Court’s finding a change in circumstances
significant enough to grant Scott’s 2008 motion to reduce
maintenance was Gloria no longer having mortgage
payments. Gloria argued that facts and arguments
regarding changed circumstances based on the parties’
incomes and expenses over the years up to the present
day are not properly before the Court. Gloria also argued
Scott did not file a motion to alter, amend or vacate the
March 27, 2014 Order and his motion includes
speculations and unsworn testimony outside of what was

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 presented at the original hearing. The Court simply did
not reach that issue and it is not considered in this
opinion on the motion to alter, amend or vacate.

Both parties filed CR 59.05 motions seeking to alter, amend, or vacate

the family court’s September 12, 2017 order. In addition, Scott filed a separate

motion requesting the family court to rule on the still-pending 2013 Motion.

On October 12, 2017, prior to a ruling on the parties’ new CR 59.05

motions to alter, amend, or vacate the family court’s September 12, 2017 order,

Scott filed a notice of appeal seeking review of the March 27, 2014, and September

12, 2017 orders in Appeal No. 2017-CA-1641-MR. On October 20, 2017, Gloria

filed a notice of cross-appeal seeking to establish the amount of Scott’s arrearage

because of the order denying the 2007 and 2008 Motions in Appeal No. 2017-CA-

1690-MR. Unfortunately, the parties did not clearly notify this Court that their CR

59.05 motions to alter, amend, or vacate the September 12, 2017 order were still

pending before the family court, and erroneously believing the order to be final,

this Court set a briefing schedule for the appeal and related cross-appeal.

By the end of May 2019, the 2017 appeal and cross-appeal had been

fully briefed and were submitted to a three-judge panel of this Court for decision.

Upon review, this Court discovered that the parties’ CR 59.05 motions to alter,

amend, or vacate were still pending before the family court, depriving us of

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jurisdiction to take any further action on the substance of their appeals.6

Recognizing that the parties had already filed briefs and believing that a ruling

from the family court was likely imminent, instead of outright dismissing the

appeals as premature, we entered an order on September 4, 2019, placing the

appeals in abeyance until such time as the family court ruled on the pending CR

59.05 motions.7

After numerous orders from this Court, the family court finally

entered an order on the pending CR 59.05 motions on July 28, 2021. In that same

order, the family court also overruled the still-pending 2013 Motion. In a separate

judgment/order entered the same day, the family court awarded Gloria “the total

sum of $205,008.72” in maintenance arrearages.

Thereafter, we entered an order returning the appeal and cross-appeal

to the Court’s active docket. Shortly thereafter, Scott filed a motion asking the

Court to place the appeals back in abeyance to allow the family court to rule on his

pending CR 52.02 motion for additional findings of fact, which he filed in response

6
“Upon the filing of a timely CR 59.05 motion, a ‘final judgment’ is converted into an
interlocutory judgment until the motion is adjudicated.” Atkisson v. Atkisson, 298 S.W.3d 858,
866 (Ky. App. 2009). However, an appellate court is not required to dismiss a prematurely filed
appeal; rather, an appellate court may place the appeal in abeyance until a ruling on the CR 59
motion has issued. The premature notice of appeal will be deemed to “relate forward to the time
when the CR 59 motion . . . was decided[.]” Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994).
7
At that time, we anticipated that the family court would promptly take up the motions, and the
abeyance would likely last no more than thirty to forty-five days. As it turned out, the appeals
were not placed back before this panel for a substantive decision until late 2022.

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to the family court’s July 2021 order. After confirming this fact, we entered an

order placing the appeals in abeyance for an additional sixty days.

In December 2021, Scott filed a motion explaining that the family

court had denied his CR 52.02 motion for additional findings in an order dated

November 19, 2021, and that he had filed a separate notice of appeal related to the

denial of the 2013 Motion, Appeal No. 2021-CA-1367-MR. Scott then requested

the Court to remove the 2017 appeals from abeyance, join them with his 2021

appeal and enter a briefing schedule. By our order entered January 10, 2022, we

removed the 2017 appeals from abeyance and consolidated them with the 2021

appeal to the extent that the three appeals shall be heard by the same three-judge

panel.8 We then referred the consolidated appeals to a prehearing hearing

conference attorney for consideration and the establishment of a briefing schedule,

including initial briefing in the 2021 appeal and consideration of whether any

supplemental briefing was necessary in the 2017 appeals, given the unusual length

of time the appeals had been abated.9 Having now been fully briefed, the three

appeals are ripe for decision.

8
At this time, the 2021 appeal was still in its infancy, as it had just been filed, and it had not yet
been assigned to a panel as briefing had not been completed. The Clerk of Court was directed to
assign the 2021 appeal to this panel upon completion of briefing.
9
On March 2, 2022, we issued a prehearing conference order stating that if any case law
supplementation was necessary as related to the 2017 appeals, the parties could so supplement in
the 2021 appeal.

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 II. SCOTT’S FIRST APPEAL: NO. 2017-CA-1641-MR

A. The Family Court’s Failure to Rule on the 2013 Motion

Scott’s lead argument in Appeal No. 2017-CA-1641-MR is that the

family court erred when it failed to address his 2013 Motion in its March 27, 2014

order as amended by its order of September 12, 2017. That issue is largely now

moot since the family court adjudicated Scott’s 2013 Motion in its July 28, 2021

order. However, to avoid future protracted litigation, we will briefly address why

the family court did not in fact err when it elected not to address the 2013 Motion

in its 2014 and 2017 orders, and how Scott’s chosen method of filing this appeal to

achieve a ruling on the pending motion was not the proper course of action.

While we generally disfavor piecemeal litigation, family court actions

are unique. Unlike other civil actions, family courts retain jurisdiction to modify

their orders and awards in certain situations. This is the reason we often see family

court cases repeatedly on appeal years after entry of the initial decree.

While we would have much preferred for the family court to have

ruled on the 2007, 2008, and 2013 Motions to modify maintenance as part of a

single order, it did not, nor was it required to do so. Scott’s 2007 and 2008

motions were based on his argument that Gloria’s maintenance should be reduced

pro rata by the amount she received from his military pension. The family court

fully resolved those motions. And, contrary to Scott’s assertion otherwise, the

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September 12, 2017 order provided it was final and appealable.10 The family court

noted in its September 12, 2017 order that it did not consider Scott’s 2013 Motion

at the time it ruled on the 2007 and 2008 Motions as it relied on a different basis

than the 2007 and 2008 Motions, specifically a reduction in Scott’s gross income.

Thus, the family court clearly understood that the 2013 Motion was pending before

it and planned to take that motion up separately after it resolved the 2007 and 2008

Motions. Perhaps it made sense to the trial court to do so since the 2007 and 2008

Motions were part of the remand in Hoffman II whereas the 2013 Motion had been

filed while Hoffman II was pending before this Court. In any event, since the

March 27, 2014 order as amended by the order of September 12, 2017, fully

resolved the 2007 and 2008 Motions and the pending CR 59.05 motions as this

Court instructed in Hoffman II, it was properly designated as final and appealable

by the family court.

Of course, we understand Scott’s frustration insomuch as his 2013

Motion had been pending before the family court for four years without a ruling

when it issued the September 12, 2017 order. An appeal, however, is not the

proper method for a litigant to seek an order directing a ruling by a lower court.

10
Although the 2017 order did not include “no just cause for delay” language required by CR
54.02 we do not believe such language was necessary where the family court had continuing
jurisdiction to make modifications and its order fully adjudicated the issues raised in the 2007
Motion and the 2008 Motion related to a pro rata reduction of Scott’s military retirement,
whereas the 2013 Motion to modify was based on a different time period and different
circumstances.

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When a trial court is derelict in its duty to rule on a pending motion, the proper

vehicle through which to obtain an order from this Court requiring a ruling is by

filing an original action pursuant to RAP11 60 requesting a writ of mandamus.

Teen Challenge of Kentucky, Inc. v. Kentucky Commission on Human Rights, 577

S.W.3d 472, 480 (Ky. App. 2019) (“Mandamus is an appropriate remedy to

compel an inferior court or administrative body to adjudicate on a subject within its

jurisdiction where it neglects or refuses to do so[.]”). Had Scott filed an original

action instead of an appeal, he could have likely achieved a decision on the 2013

Motion much faster. Suffice it to say, at this juncture, all of Scott’s motions have

now been ruled upon, rendering any additional discussion of the family court’s

failure to rule on the 2013 Motion unnecessary.

B. Reduction of Gloria’s Maintenance Due to Receipt of Military Retirement

Scott’s next argument is that the family court erred when it refused to

modify his maintenance obligation after Gloria began receiving payments from the

military retirement. At various points below, Scott has argued that the 2006

Agreed Order compelled a reduction of Gloria’s maintenance, and that the family

court erred when it did not include such language in its initial award. As discussed

above, Scott unsuccessfully made that argument in Hoffman I. Despite being

aware of Scott’s position vis-à-vis the 2006 Agreed Order, this Court affirmed both

11
Kentucky Rules of Appellate Procedure.

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the duration and amount of the family court’s original maintenance award. Scott

did not seek discretionary review from the Kentucky Supreme Court, and Hoffman

I became final. Thereafter, it was improper for Scott to continue to make any

arguments that the maintenance award should be modified pursuant to the 2006

Agreed Order.12

As Scott points out, however, at the time the family court made its

initial maintenance award to Gloria, it had only been determined that Gloria had a

marital property interest in 36.5% of Scott’s military retirement, but she was not

actually receiving monthly benefit checks. Therefore, Scott asserts that the family

court did not take those benefits into consideration when it determined the

appropriate amount Scott should pay Gloria in monthly maintenance. After Gloria

began receiving the monthly distributions from the military retirement, Scott

moved the family court to reduce Gloria’s maintenance. Scott asserts that the

family court erred when it refused to do so.

Maintenance payments may be modified “upon a showing of changed

circumstances so substantial and continuing as to make the terms unconscionable.”

12
“One of the fundamental underpinnings of our jurisprudence is the law of the case doctrine,
which encompasses ‘a handful of related rules giving substance to the general principle that a
court addressing later phases of a lawsuit should not reopen questions decided by that court or by
a higher court during earlier phases of the litigation.’” Hardin v. Jefferson Cnty. Board of
Education, 673 S.W.3d 437, 442 (Ky. App. 2023) (quoting Brown v. Commonwealth, 313
S.W.3d 577, 610 (Ky. 2010)) (footnote omitted).

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KRS 403.250(1). Maintenance becomes unconscionable if it is “manifestly unfair

or inequitable.” Combs v. Combs, 787 S.W.2d 260, 261 (Ky. 1990). Since the

policy of the statute is for relative stability, evidence for the movant must be

compelling for the family court to grant the relief requested. Bickel v. Bickel, 95

S.W.3d 925, 927-28 (Ky. App. 2002).

The family court’s decision to “decline modification of the

maintenance award is reviewed for abuse of discretion.” Tudor v. Tudor, 399

S.W.3d 791, 793 (Ky. App. 2013). The family court abuses its discretion when its

decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).

The only basis Scott asserted in the 2007 and 2008 Motions for

reducing Gloria’s maintenance was that Gloria had begun receiving monthly

payments for the military retirement, and that as a result his monthly maintenance

obligation should be reduced by the same amount. However, Kentucky courts do

not apply a mathematical formula in determining the amount of maintenance. Age

v. Age, 340 S.W.3d 88, 95 (Ky. App. 2011) (“[N]o particular formula has ever

been held as the method for establishing maintenance.”). Thus, the mere fact that

Gloria began receiving payments from her portion of the military retirement did

not compel the family court to order a corresponding reduction of her maintenance.

Instead, the family court was required to consider whether any change was

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substantial and continuing enough to make the prior award unconscionable. And

this is what it did when it compared the change to the parties’ overall

circumstances. Even with the military benefits, the family court determined that

Scott’s income far exceeded Gloria’s income and that the additional income to

Gloria, while continuing, was not substantial enough in relation to her overall

needs and situation to require modification. The family court’s decision was

supported by substantial evidence of record, and we cannot appreciate any abuse of

discretion in the family court’s determination as related to its decision to deny the

2007 and 2008 Motions.

III. GLORIA’S CROSS APPEAL: NO. 2017-CA-1690-MR

Gloria’s 2017 cross-appeal asserted that the family court erred by not

properly calculating and entering an award for the maintenance arrearage she

claims Scott owed her. This is the primary reason Gloria moved for relief under

CR 59.05. The family court’s July 28, 2021 Judgment/Order corrected the prior

omission and rendered her 2017 cross-appeal moot. As such, we will not address

the cross-appeal any further.

IV. SCOTT’S SECOND APPEAL: 2021-CA-1367-MR

Before we delve into the substance of Scott’s appeal, we must first

address Gloria’s motion to strike Scott’s brief. Gloria asserts Scott’s brief should

be stricken because, contrary to the prehearing order issued by this Court, Scott’s

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brief in the 2021 appeal made new arguments related to the denial of his 2007 and

2008 Motions. This Court’s March 2, 2022 prehearing conference order provided

“[i]f any new statutory or case law has arisen since the submission of the briefs in

2017-CA-1641 and 2[0]17-CA-1690, the parties will be permitted to supplement in

the 2021-CA-1357 briefs[.]” (Emphasis added.) This Court’s prehearing order

was intended to allow the parties to include citations to additional authority only to

the extent that authority did not exist at the time the parties filed their briefs in

2019. The Court did not intend for the parties to reformulate their arguments. This

is the reason the Court denied Scott’s motion to substitute his 2021 brief for the

briefs he filed in 2019 as stated in our October 13, 2022 order. While we have

elected not to strike Scott’s brief, we have considered the brief only to the extent it

complies and is consistent with our March 2, 2022 prehearing order.13

Scott’s second appeal relates to the denial of the 2013 Motion.14 As

related to the 2013 Motion, the family court’s July 28, 2021 order provides:

13
We have denied Gloria’s motion to strike by separate order.
14
In the introduction paragraph of his brief, Scott asserts that the family court’s errors subjected
him to “an arrearage judgment of over $200,000.00.” Even setting aside whether the family
court erred, we must point out an arrearage judgment was required because Scott began making
deductions from Gloria’s motion before the family court had ruled on his motions and continued
to do so even after having been admonished to stop making the deductions. “Past due payments
for . . . maintenance become vested when due. Each payment is a fixed and liquidated debt
which a court has no power to modify[.]” Pursley v. Pursley, 144 S.W.3d 820, 828 (Ky. 2004)
(footnotes and citations omitted). The only exception to this rule is that a court may reduce
maintenance retroactive “from the filing of the motion to the entry of judgment.” Mudd v. Mudd,
903 S.W.2d 533, 534 (Ky. App. 1995). Had Scott simply paid the maintenance when due, he
would not owe such a large arrearage. But, against the family court’s instructions, Scott

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 The parties were married for approximately 18
years. During their marriage Scott was employed by the
United States Marine Corps. Prior to the parties’ divorce,
Scott was receiving 100% of this retirement benefits and
remitting to Gloria her marital portion (36.5%). He
contends that any maintenance he pays to Gloria should
be offset by the USMC retirement benefits she is paid.

Findings of Fact and Conclusions of Law were
entered by Judge Paula Sherlock on March 29, 2007,
which awarded maintenance to Gloria of $304,800.00 to
be paid over twelve years. Judge Sherlock did not order
that Gloria’s maintenance should be offset by the
retirement benefits she received. However, when Gloria
began receiving her share of Scott’s retirement benefits
directly in May 2007, Scott reduced his maintenance
payments correspondingly.

On September 13, 2013, Scott filed his third
motion to modify his maintenance obligation based on a
change in the parties’ financial situations. At that time,
his earlier motions of June 7, 2007, and June 14, 2008,
were still outstanding. Judge Sherlock entered an order
on March 27, 2014, which denied Scott’s first motion to
modify his maintenance obligation and granted his
second one. The Court did not reach the September 2013
motion in its March 2014 Order because it found grounds
to reduce Scott’s maintenance obligation beginning in
2008. However, on September 12, 2017, Judge Sherlock
entered an order granting Gloria’s motion to alter,
amend, or vacate the March 2014 Order and reversing the
maintenance reduction, finding that an error had been
made regarding Gloria’s monthly expenses. The Court’s
Order of September 12, 2017, only addresses Scott’s first

continued to deduct large sums from Gloria’s maintenance each month believing, ultimately
incorrectly, that his legal arguments would prevail, and the family court would eventually enter
an order retroactively reducing his maintenance to the date he filed his motions and wiping away
his large arrearage. Scott created the need for an arrearage judgment, and he should not now be
heard to complain that it is so large.

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two motions to modify his maintenance obligation
because they were the subject of the March 27, 2014
hearing. Therefore, this Court must determine whether
Scott was entitled to a modification of his maintenance
obligation in 2013 when he filed his third motion for a
reduction.

On October 11, 2013, the parties were before
Judge Paula Sherlock for a hearing on Gloria’s motion
for maintenance arrears and Scott’s motions to reduce his
maintenance obligation. Gloria testified that the full
amount of arrearages owed between 2007 and July 2013
was $107,456.22. Scott stipulated that Gloria’s
calculation accurately reflected the amount that he had
deducted from his maintenance payments when she
began to receive his retirement benefits from USMC.

At the time of the parties’ divorce trial in 2006,
Gloria was not employed outside the home. The parties
had four minor children and had traveled extensively
during their marriage because of Scott’s job with the
USMC. She was relicensed as a nurse in 2007. At the
maintenance hearing in 2013, Gloria testified that her
current income included a USMC retirement payment of
$1,586.65 a month, child support of $700.00 a month for
the parties’ 17-year-old daughter, and her earnings from
three part-time jobs. Gloria works as a PRN at The
Brook and Family Health Center. She also does contract
work for Dreams with Wings. In addition, she had
recently accepted a PRN position with Malone Staffing.
She testified that she tries to work as many shifts as she
can so that her net income is approximately $2,000.00 a
month. Her 2012 wages were $22,531.00. She had
previously had income from a rental property, but she
moved into the residence when the renters left. Scott
contends that Gloria is voluntarily underemployed and
that she should be imputed income for full-time
employment at $21.80 an hour, or $45,344.00 annually.

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 Gloria testified to her monthly expenses, providing
details about household expenses ($5,663.00) and
expenditures for the parties’ daughter ($1,208.00).
Although Scott pays $700.00 a month to Gloria in child
support, by agreement, Gloria testified that private school
tuition, which she pays on her own, is $685.00 a month.
Therefore, she must cover all of their daughter’s other
living expenses from other income sources. The Court
finds that Gloria voluntarily pays private school tuition
for the parties’ minor child and will not consider that
expense when considering her maintenance award.

After Scott retired from USMC in 2004, he worked
for Sphere Communications. In 2007, Judge Sherlock
found that Scott had gross income of $13,941.34 a month
from his employment as well as disability and retirement
pay from USMC when she set his maintenance
obligation. Scott testified that income was reduced
almost immediately when Gloria began receiving her
share of his retirement benefits in May 2007. Judge
Sherlock ruled that Scott’s change in income was not
substantial enough to warrant a modification of
maintenance in 2007 or 2008.

Scott’s employment with Sphere Communications
ended in 2008 when the company was sold. Scott
testified that he started a consulting business (Veterans
Up) and a business selling office furniture to government
agencies (Mesh Furniture); however, by 2013 neither
company was earning any income for him. His 2011 and
2012 tax returns showed business losses. In February
2013, he started working for Biotap Medical. He had a
15% ownership interest in the company. He testified that
he would be earning an annual salary of $72,800, or
approximately $6,000 a month (gross). His income from
his USMC retirement was $2,760.50 (gross) per month,
and he was receiving disability benefits of $1,687.00 per
month. Scott testified that he has net monthly income of
$8,457.00.

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 At the October 2013 hearing, Scott testified
regarding his monthly expenses, which he calculated at
over $13,000 a month. Besides his own living expenses,
Scott testified that he supported all three of the parties’
emancipated children financially. He owned a home on
Eastern Parkway with a mortgage payment, where two of
the parties’ adult children lived while in college at UofL.
Although the parties’ children did not pay rent, other
renters lived in the building, which offset some of the
costs associated with the property. All four of the
parties’ children were covered by Scott’s TriCare
insurance with USMC. He did not pay a monthly
premium, but there is an annual deductible of $2,000.00,
which Scott testified he paid every year. For the parties’
minor daughter, specifically, in addition to health and
dental insurance, Scott testified that he paid her cellphone
and car insurance and gave her money for incidentals.
Although she did not have her own vehicle in 2013, she
was an insured driver so that she could drive Gloria’s car
or borrow her older sibling’s cars.

Scott testified that he was using credit to make up
the deficit each month between his income and expenses.
He refinanced the mortgage on the residence on Eastern
Parkway to access the equity in the property and
borrowed money from his companies. He testified that
he had been using credit cards for living expenses, but he
was no longer doing that. Scott also testified to expenses
related to his lake house and boat, which he maintains
despite his reduced income in recent years. The Court
finds that Scott voluntarily pays college tuition and other
living expenses for the parties’ adult children and will not
consider those expenses when considering his motion to
reduce his maintenance obligation.

Under KRS 403.250, this Court may modify
Scott’s maintenance obligation, “only upon a showing of
changed circumstances so substantial and continuing as
to make the terms unconscionable.” While the Court
recognizes that Gloria’s income has increased since

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 2006, Judge Sherlock’s original maintenance award
anticipated that she would return to work post-divorce
and earn greater income. Even if the Court imputes full
time income to Gloria, Scott’s actual income exceeds it.
Furthermore, the Court expects that Scott’s financial
support of the parties’ adult children in 2013 was likely
to have been short term, while the children were
completing their educations. While Scott contends that
he is unable to meet his maintenance obligation as set out
by Judge Sherlock in 2007, this Court finds that he
simple prioritizes other expenditures over Gloria’s
maintenance award.

The Court finds that the parties’ financial
circumstances at the time of the hearing in October 2013
were not “substantial and continuing” and that the
maintenance award of $304,800.00 over twelve years
was not unconscionable. KRS 403.250(1). The Court
being sufficiently advised, IT IS HEREBY ORDERED
that Scott’s motion of September 13, 2013, to reduce his
maintenance obligation is OVERRULED. Furthermore,
Scott’s decision to unilaterally offset his monthly
maintenance obligation dollar-for-dollar for retirement
benefits paid to Gloria beginning in May/June 2007 was
inappropriate.

It is reasonable to expect that the parties’ circumstances will fluctuate

over time. However, not all changes, even continuing ones, justify modification of

a maintenance award. To justify modification, the change in the parties’ positions

must be so substantial and continuous to make the original award unconscionable.

Holland v. Herzfeld, 610 S.W.3d 360, 364 (Ky. App. 2020). No mathematical

formula exists to calculate unconscionability.

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 In essence, Scott argues that Gloria was no longer entitled to

maintenance when the family court denied his motion to modify. However, as this

Court has previously held, whether Gloria would currently be entitled to

maintenance under KRS 403.200(1) does not necessarily render her continued

receipt of maintenance unconscionable. Id. at 364. As the family court recognized

when it denied the 2013 Motion, it was assumed that Gloria’s income would

slowly increase over time. In fact, the family court built in consideration of this

eventual increase as part of its original order, as the monthly payments were

ordered decreased after two years.

When addressing the 2013 Motion, the family court was not required

to reweigh the KRS 403.200(1) factors, it was simply required to determine

whether substantial and continuing changes had rendered the original award

unconscionable. “The [family] court was undoubtedly in the best position to listen

to the testimony, review hundreds of pages of evidence, and assess the credibility

of the witnesses who testified.” Mahl v. Mahl, 671 S.W.3d 140, 147-48 (Ky.

2023). Having done so, it reached a reasoned and well-articulated decision that

modification was not required.

The family court’s findings were set out in more than adequate detail,

and the family court applied the correct legal standard in deciding whether to

terminate or modify maintenance. Its decision is supported by substantial evidence

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in the record that the incomes of the parties remain disparate, and any shortfall in

Scott being able to meet his monthly expenses and pay Gloria’s maintenance was

temporary and created by his own decisions to prioritize his discretionary spending

over his legal obligation to continue providing support to Gloria as he was ordered

to do in March 2014.

V. CONCLUSION

For the reasons set forth above, we affirm the orders of the family

court in Appeal No. 2017-CA-1641-MR and Appeal No. 2021-CA-1367-MR and

conclude that the issue raised by the Cross-Appellant in Appeal 2017-CA-1691-

MR is now moot.

MCNEILL, JUDGE, CONCURS.

LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE
SEPARATE OPINION.

BRIEFS FOR APPELLANT / BRIEFS FOR APPELLEE /
CROSS-APPELLEE: CROSS-APPELLANT:

Mary Janice Lintner Ruth Ann Cox Pence
Louisville, Kentucky Louisville, Kentucky

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