AND RICHARD I. ST. ONGE v. DIANE ST. ONGE
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RENDERED: JULY 21, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1999-CA-000638-MR
AND
1999-CA-001088-MR
RICHARD I. ST. ONGE
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS STEPHENS, JUDGE
ACTION NO. 98-CI-00222
v.
DIANE ST. ONGE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND GUIDUGLI, JUDGES.
BARBER, JUDGE: Appellant contends that the circuit court erred in
awarding Appellee $3,300 per month maintenance for four years to
enable her to attend law school on a part-time basis.
Appellant
submits that the award of maintenance, in addition to the agreed
upon child support of $1,200 per month exceeds two-thirds of
Appellant’s net income, so that he is unable to provide for his
reasonable needs.
We reverse and remand for further findings.
The Appellant, Richard St. Onge, Jr. and the Appellee,
Diane St. Onge, were married on June 23, 1984.
They have two
children, a son born June 18, 1988 and a daughter born May 14,
1991.
By “Letter Agreement” dated August 26, 1998, the marital
estate was divided equally between the parties.
The parties
agreed that they would have joint custody and the children would
primarily reside with Diane (in the marital residence, kept by
Diane).
It was agreed that Richard would pay $1,200 per month
child support.
The parties had reached no agreement on
maintenance or attorney’s fees.
It was agreed that these issues
would be resolved by the court or by subsequent negotiation.
For
the purposes of eliminating a hearing on those issues, the
parties stipulated the admissibility of the reports of George
Parsons, Ph.D. (Richard’s expert) and Harold L. Bryant, Ph.D.
(Diane’s expert).
Parsons met with Diane on August 21, 1998 to evaluate
her residual functional capacity to work and her power to earn.
At the time, Diane was 42 years old.
She had received a B.A. in
1977 from the University of Santa Clara with a dual major in
business and philosophy, and an M.A. in 1983 from John F. Kennedy
University in experimental psychology (parapsychology).
She had
completed one semester of law school at the University of Akron.
Diane was currently enrolled at Chase Law School and was seeking
a law degree.
Parsons noted that Diane had a real estate license
and a certification as an independent insurance agent in Ohio.
[In her brief, Diane contends that these licenses are no longer
in effect; however, she provides no citation to the record and we
will not search for it].
Diane had related that she had had very
little work activity and essentially no earnings of any
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significance since 1987.
Parson stated, “To say the least, she
has been woefully underemployed given the characteristics of her
education.”
Parsons noted a series of accomplishments attached
to Diane’s resume which included having written a chapter in a
professional journal and having authored several science
publications.
Parsons reviewed a letter of recommendation
regarding Diane’s collaboration on an anthropological research
paper and book.
A history taken during the interview revealed no
medical, psychological or psychiatric reason why Diane could not
perform work activity.
A vocational interest test (Self Directed
Search) was administered.
Results produced a final letter code
of “ISE” consistent with individuals who are much more cerebral
in orientation than physical.
Occupations with the same or
similar “code” included research worker, nurse supervisor,
customs import specialist, chief psychologist, product safety
engineer, cardiologist.
Parsons stated that although Diane would
most likely be able to complete a law degree, her vocational
interests appeared to be in other fields.
A General Aptitude
Test Battery (GATB) reflected above average intellectual ability.
Parsons concluded that based upon Diane’s scores and
vocational interests, she was best suited for positions she had
performed in the past, particularly as they relate to research,
communication and technical writing.
Parsons thought Diane would
do very well in positions which could be found at a University
Medical Center, as well a major corporations, where she could
work on projects as a coordinator or director.
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He noted that she
would also do well in production management with her undergrad
business background.
research coordinator.
She would work well as an expediter
Parsons stated that he saw no reason why
Diane was not capable of returning to gainful work activity.
It
was his professional opinion that she could immediately compete
for positions in the research area, both as a data manager or as
a project coordinator, earning between $38,000 to $45,000 per
year.
Harold Bryant, Ph.D. also prepared a report to evaluate
the parties’ future capacities to earn money.
Bryant noted that
both parties were college educated, but he believed that Diane’s
degrees did not readily translate into prospects for gainful
employment at a salary level that would allow her to approach the
standard of living achieved when the couple functioned together
as a complete family.
Bryant stated that Diane might re-enter
the labor force as an unskilled legal assistance.
He noted that
Diane had some academic training and that she might be able to
find a starting salary of $20,000 with a package of fringe
benefits valued at 25 percent of her annual salary including
health insurance, some pension, as well as government-mandated
benefits.
Bryant noted that Diane did not have paralegal
certification or experience. [Diane had enrolled in paralegal
school in 1997; however, she stopped that to attend Chase Law
School in the fall of 1998.
This is apparently in addition to
the first year of law school she had previously completed at the
University of Akron].
In Bryant’s opinion, Diane might progress
to a maximum salary of $30,000 per year as a legal assistant in
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five to six years, by age 47, if she entered the labor force in
the summer of 1998.
If Diane completed law school successfully,
Bryant projected that she would earn $20,000 in wages in 2002,
$45,000 in wages in 2003, her second year out of law school at
age 47, reaching maximum wages of $65,000 a year at age 52 and
continuing at that wage until age 64.
The issue of maintenance was submitted to the court for
decision.
The judge made his findings on the record on August
28, 1998.
The transcript of the video reflects the following:
Based upon what I know, and I have to admit
that there is a certain uncertainty in my
mind exactly what her degrees are and exactly
what those disciplines are and exactly what
that qualifies you for in the real world.
Recognizing that there is a certain
uncertainty, if I understand generally what
her background is, what her education is what
her work skill, work experience are, if I
understand her reasons noted for improving
herself educationally. Accepting those as I
understand them, I think that she is making a
decision based upon her best interest and the
best interest of her child, her children, and
not upon an inappropriate or unreasonable
motive or unfair motive. So, I am going to
award her sufficient maintenance to allow her
to complete her education.
The court rendered written findings and conclusions
entered August 28, 1998.
The court found that “The husband’s
earning capacity is $99,000.00/year/gross; The wife’s earning
capacity is unknown.”
The court incorporated the parties’ August
26, 1998 “Letter Agreement” and all of its terms into the decree
of dissolution, entered August 28, 1998.
The decree directs that
the “Petitioner shall pay maintenance to respondent, in the
amount of $3,300.00 per month, effective September, 1998.
court shall review maintenance in April 1999.”
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The
Richard filed a motion for a new trial, to alter, amend
or vacate and for additional finding.
A copy of the motion,
stamped “filed Kenton Circuit/District Court,” dated September 8,
1998, is attached as Appendix “E” to Appellant’s Brief; however,
the motion, itself, does not appear to be included in the record
from the circuit court.
In support of the motion, Richard filed,
by notice, a monthly pay analysis prepared by a C.P.A., R. Daniel
Fales.
The Fales analysis reflects that Richard’s projected
monthly income, after his support obligations and taxes, is
insufficient to cover his monthly expenses.
The motion was
denied by order entered February 18, 1999.
Notice of Appeal was
filed March 18, 1999 (No. 1999-CA-638-MR).
Pursuant to the
Decree of Dissolution, a status conference was noticed for April
19, 1999 to review the maintenance provision.
Evidence presented
included a cash flow analysis for September 1998-March 1999 which
reflected Richard’s gross income was $57,409.25.
after taxes was $46,192.89.
His net pay
After paying $8,400.00 in child
support and $23,100.00 in maintenance, Richard was left with
$14,692.89.
His expenses totaled $21,351.00, leaving him with a
shortfall of $6,658.11.
By order entered May 4, 1999, the
circuit court ordered that the amount of maintenance awarded in
the Decree “shall not be modified at this time.”
A Notice of
Appeal from that order was filed May 7, 1999 (No. 1999-CA-1088MR).
The two appeals were consolidated by order entered July 2,
1999.
On appeal, Richard contends that the circuit court
abused its discretion by failing to consider his ability to meet
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his own needs while meeting those of the spouse seeking
maintenance under KRS 403.200(2)(f).
Diane contends that she
meets the criteria of the maintenance statute, KRS 403.200(1),
because she lacks sufficient property to provide for her
reasonable needs and that she is unable to support herself.
The statute provides:
403.200 Maintenance - Court may grant
order for either spouse.
(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 or is the custodian of
a child whose condition or circumstance make
it appropriate that the custodian not be
required to seek employment outside the home.
(2) 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:
(a) The financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his ability
to meet his needs independently, including
the extent to which a provision for support
of a child living with the party includes a
sum for that party as custodian;
(b) The time necessary to acquire
sufficient education or training to enable
the party seeking maintenance to find
appropriate employment;
(c) The standard of living established
during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and
emotional condition of the spouse seeking
maintenance; and
(f) The ability of the spouse from
whom maintenance is sought to meet his needs
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while meeting those of the spouse seeking
maintenance.
In Perrine v. Christine, Ky., 833 S.W.2d 835, 826
(1992), our Supreme Court held:
Under this statute, the trial court has dual
responsibilities: one, to make relevant
findings of fact; and two, to exercise its
discretion in making a determination on
maintenance in light of those facts. In
order to reverse the trial court’s decision,
a reviewing court must find either that the
findings of fact are clearly erroneous or
that the trial court has abused its
discretion.
Cochran v. Cochran, Ky. App., 746 S.W.2d 568 (1988)
remanded the issue of maintenance to the trial court for
reconsideration, where the trial court failed to make a finding
on the question of the wife’s ability to support herself through
appropriate employment.
The trial court was directed to
reconsider the amount of maintenance to be awarded according to
KRS 403.200(2) in the event it concluded that an award of
maintenance was still appropriate after considering the wife’s
property and ability to support herself.
Here, evidence was submitted by both parties regarding
Diane’s ability to support herself.
It was uncontroverted that
she was able to return to gainful work activity and that she had
a present earning capacity.
There was evidence submitted
regarding her educational background, experience and
aptitude/vocational interests.
There was expert opinion that
Diane could re-enter the work force earning $20,000, plus $5,000
worth of benefits, as a legal assistant, with gradual increases
each year to $30,000, plus $7,500 worth of benefits by 2003.
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There was also expert opinion that Diane could immediately
compete for positions in the research area date manager or
project coordinator earning $38,000 to $45,000. [The maintenance
awarded was $39,600 per year].
Despite the evidence presented,
the circuit court found that Diane’s earning capacity was
“unknown.”
The court was admittedly uncertain in its
understanding of what Diane’s degrees qualified her for in the
“real world”, despite expert vocational opinion on this issue.
The court ordered Richard to pay $3,300 per month maintenance,
not knowing Diane’s ability to generate income.
“The rights of
litigants in courts of justice are not determined by guesswork,
surmise, or speculation.”
Chesapeake & Ohio Railroad Company, et
al v. Crider, 199 Ky. 60, 250 S.W.2d 499, 502 (1923).
We believe that the circuit court’s findings that
Diane’s earning capacity is “unknown” is clearly erroneous and
lacks a substantial evidentiary foundation.
It was an abuse of
discretion to award maintenance without first determining Diane’s
ability to support herself.1
We, therefore, remand the issue of
maintenance to the trial court, albeit reluctantly.
We recognize
that it would be in everyone’s best interest to resolve this
matter without further expenditure of time and money;
nevertheless, until a finding of Diane’s ability to support
1
Diane requested her attorney’s fees incurred in defending
the appeal. She has already been awarded $5,000 in attorney fees
by the trial court. Any financial disparity between the parties
that might justify the award of additional attorney’s fees would
be better addressed after a determination of Diane’s earning
capacity is made upon remand.
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herself through appropriate employment is made, as required by
KRS 403.200(1)(b), the issue of maintenance cannot be determined.
We agree with Richard’s argument that KRS 403.200(1)(b)
requires consideration of “appropriate employment,” rather than
“optimum” employment.
“[I]t is neither the duty nor the
prerogative of the judiciary to breathe into the statute that
which the Legislature has not put there.”
Gateway Construction
Company v. Wallbaum, Ky., 356 S.W.2d 247, 248 (1962).
We believe
that the reasoning in Sayre v. Sayre, Ky. App., 675 S.W.2d 647
(1984) is applicable.
There, the wife’s income, as a nurse in a
doctor’s office was $10,000 and the husband’s income was $30,000.
The wife had acknowledged that she could probably earn
substantially more money in a hospital or other setting, but
preferred to continue in her present employment.
This Court held
that the determinative factor in that case was the wife’s
personal choice to remain at a lower paying job.
The Court
explained that “since that is a matter of purely personal
choice,” an award of maintenance was not required. Id. at p. 648.
Here, the decision to return to school was a matter of personal
choice.
Diane already had a post-graduate degree, had completed
one semester of law school at the University of Akron and had
substantially completed a paralegal degree, when she decided to
enroll in Chase Law School on a part-time, four year basis.
It
was uncontroverted that Diane could have immediately competed for
jobs paying $38,000 to $45,000 per year.
According to her
expert’s projections, it would take Diane until the year 2003 to
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earn $45,000 as a lawyer.
It was a matter of personal choice
that she decided to go back to school.
On remand, the trial court is directed to make a
finding of Diane’s earning capacity, in light of the testimony
presented.
Should the trial court conclude that an award of
maintenance is still appropriate, it shall reconsider the amount
of maintenance according to KRS 403.200(2), taking into account
Richard’s ability to meet his own needs while meeting those of
Diane under KRS 403.200(2)(f).
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Beverly R. Storm
Covington, Kentucky
Timothy B. Theissen
Covington, Kentucky
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