RANDY L. TURK v. BARBARA J. TURK
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RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000940-MR
AND
NO. 2003-CA-002016-MR
AND
NO. 2003-CA-002079-MR
RANDY L. TURK
v.
APPELLANT/CROSS-APPELLEE
APPEALS AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 99-CI-03980
BARBARA J. TURK
APPELLEE/CROSS-APPELLANT
OPINION
VACATING AND REMANDING APPEAL NO. 2002-CA-000940-MR,
REVERSING AND REMANDING APPEAL NO. 2003-CA-002016-MR,
AND DISMISSING CROSS-APPEAL NO. 2003-CA-002079-MR
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE:
In this domestic relations action, Randy Turk
has appealed, and Barbara Turk has cross-appealed, from
decisions of the Fayette Circuit Court regarding first the award
of and then the modification of spousal maintenance to Barbara.
In the first appeal, Randy contends that the maintenance award
was incomplete, as it did not address retirement, while in the
second appeal Randy contends that Barbara’s maintenance should
be terminated or at least suspended due to the inheritance she
received and cohabitation with another man.
In her cross-appeal
from Randy’s second appeal, Barbara contends that her
maintenance award should not have been reduced due to her
inheritance and that she was entitled to an award of attorney
fees.
We agree with Randy that the circuit court’s original
maintenance award was incomplete, and vacate that ruling, and
that the circuit court erred in finding that Barbara’s
cohabitation did not constitute a significant enough new
financial resource to support a modification, and therefore
reverse that ruling.
As for Barbara’s cross-appeal, we hold
that she did not preserve either issue she raised for review by
this Court, and therefore dismiss her cross-appeal.
Randy and Barbara were married on October 18, 1969, in
Madison County, Illinois, and separated almost twenty-nine years
later on August 31, 1998.
Three daughters were born of the
marriage, all of whom were adults at the time the decree was
entered.
Barbara filed a Petition for Dissolution of Marriage
in the Fayette Circuit Court on November 12, 1999, requesting
dissolution, maintenance, attorney fees, a division of marital
property, and the restoration of her non-marital property.
Pursuant to agreed orders entered a month later, Barbara was to
retain exclusive occupancy of the marital residence, and Randy
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was to pay the house payment, the car lease and taxes, as well
as $285 per month in cash to Barbara.
Barbara was also to
receive $5000 as an advance against her portion of the marital
estate.
The matter proceeded to a contested hearing the
following October.
Testimony at the hearing established that
Randy worked for the majority of the marriage, while Barbara was
responsible for raising their children and maintaining the home.
At the time of the hearing, Barbara had recently obtained new
employment at the University of Kentucky, earning $24,934 per
year.
Randy, on the other hand, had earned an average salary of
$105,819 per year for the years 1998, 1999 and 2000 through his
employment with Glen Springs Holdings, Inc.
The circuit court eventually bifurcated the action,
and entered a decree of dissolution on April 6, 2001, reserving
all other issues.
The circuit court then entered its Findings
of Fact, Conclusions of Law and Supplemental Decree on January
7, 2002.
After finding that the parties had equally contributed
to the marriage and the accumulation of assets, the circuit
court, with some exceptions not relevant to these appeals, split
the considerable marital estate equally between Randy and
Barbara.
Additionally, the circuit court found that Barbara was
entitled to an award of maintenance in the amount of $1,500 per
month.
Regarding the award of maintenance, the circuit court
stated, in relevant part, as follows: “This amount will be
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payable monthly until Wife remarries or dies.
At that time Wife
will be able to also use her retirement accounts, and Husband
will also be at retirement age.”
Randy filed a motion to alter, amend or vacate the
supplemental decree, raising several issues, including the award
of maintenance.
In particular, Randy argued that maintenance
should terminate when Barbara reached age 59 ½ because at that
time she would be able to access retirement benefits without
penalty.
The circuit court denied this portion of Randy’s
motion in an order entered April 5, 2002.
It is from the
supplemental decree and the order denying his motion to alter,
amend or vacate that Randy took the first appeal.
One month later, Randy moved the circuit court to
abate, modify or terminate maintenance, and also requested that
Barbara be required to pay for the damage to the marital estate.
Regarding the maintenance portion of the motion, Randy asserted
that Barbara had inherited at least $150,000 and was probably
the beneficiary of trusts from family members.
Randy then
indicated that Barbara had vacated the marital residence in
early June, and had left it in bad condition.
The parties
conducted discovery concerning the contested issues, and filed
prehearing memoranda prior to the April 10, 2003, hearing.
In
his memorandum, Randy indicated that Barbara’s share of the
marital estate was $295,460; that she had distributions equaling
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over $150,000 from her father’s estate; that she was a one-third
heir in her sister’s estate valued at over $300,000; that she
had voluntarily taken a different job at a lower salary; and
that she had been living with Joe Newell at his residence and
therefore had no housing expenses.
In her memorandum, Barbara
indicated that she had temporarily moved in with her boyfriend
and had recently purchased a house that needed repairs.
At the
April hearing, both parties testified concerning Barbara’s
inheritance and her living arrangement with Newell.
In
particular, the testimony established that Barbara had been
living with Newell at his residence at Overbrook Farm since she
moved out of the marital residence.
Newell lived in the house
rent-free and utility-free as part of his employment with
Overbrook Farm.
Both Newell and Barbara contributed money to a
joint bank account to pay for food, satellite television and the
telephone service.
Barbara contributed $200 per month, which
roughly equaled half of their monthly expenses.
Newell paid for
80 to 90% of their entertainment expenses, and for airplane
tickets to Hawaii and Florida when they traveled together.
Barbara described their living arrangement as temporary because
she intended to purchase a house and Newell was not planning on
moving in with her.
Although they did not have any plans to
marry, Newell indicated that he wanted the relationship to
continue.
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On August 4, 2003, the circuit court issued the
following Opinion and Order ruling on Randy’s motion to abate,
modify or terminate maintenance:
This matter came before the Court on
[Randy’s] Motion to Abate, Modify or
Terminate Maintenance. [Randy] currently
pays [Barbara] $1,500 a month in maintenance
per the Decree entered on January 7, 2002.
[Randy] argues that [Barbara] has received
inheritance money from her father, sister
and aunt. [Randy] also states that
termination of his obligation is appropriate
because [Barbara] is cohabitating with Joe
Newell.
[Barbara] asks the Court to deny
[Randy’s] motion stating that even with her
inheritance the current maintenance
obligation is equitable given the
circumstances surrounding the lengthy
marriage. [Barbara] argues her living
situation does not legally justify a
reduction or termination of maintenance.
[Barbara] desires to leave her daughters of
the marriage an inheritance and further
argues a fundamental unfairness in [Randy]
benefiting from [Barbara’s] family deaths.
Under Combs v. Combs, 787 S.W.2d 260
(Ky. 1990), this Court is directed to look
at several factors to determine if
cohabitation constitutes a change in
circumstances as to make an award of
maintenance unconscionable. Specifically
the factors are duration and economic
benefit of the relationship, the intent of
the parties, the nature of the living and
financial arrangements, and the likelihood
of a continued relationship. Id. at 262.
These factors are to be considered when
determining the significance of the change
in circumstances for maintenance
modification.
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It is undisputed that the relationship
between [Barbara] and Mr. Newell is one of
the romantic variety and one that began in
2002. [Barbara] stated that she moved in
with Mr. Newell in order to save money
[with] which to purchase a home of her own.
[Barbara] purchased a home and testified at
the hearing that she would reside in her
home while Mr. Newell intended to stay at
his residence. [Barbara] further testified
that Mr. Newell did not ‘support’ [her] and
Mr. Newell stated he was not in a position
to do so even if he wanted to. Further
testimony revealed that the two shared most
living expenses while [Barbara] paid for
personal expenses such as pet needs. Given
these factors the Court, at this time, does
not feel the temporary cohabitation between
[Barbara] and Mr. Newell created a
significant enough change in circumstances
in which to modify or terminate maintenance.
The Court does feel that [Barbara’s]
inheritance has created a significant enough
change in circumstances in which to modify
maintenance and thus SUSTAINS [Randy’s]
Motion to Modify. KRS 403.200 allows the
Court to consider the receiving spouse’s
property when determining maintenance. KRS
403.250 requires a substantial change in
circumstances which would make the current
obligation unconscionable.
It was presented to the Court that
[Barbara] has, or will have around $201,000
in liquid assets from her combined
inheritance. [Barbara] is currently
receiving $1,500 a month in maintenance and
did receive half of the marital estate.
Other sources of income as well as expenses
were presented to the Court. [Barbara]
indicated a desire to save a large portion
of her inheritance for her daughters and
further conveyed to the Court the unfairness
of [Randy] essentially benefiting from the
deaths in [Barbara’s] family. [Barbara’s]
concerns with becoming older and the
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possibility of assisted living were brought
to the Court’s attention.
The Court does note that [Barbara’s]
losses have been trying. However, the
statute examined simply indicates a change
in circumstances is enough to modify a
maintenance award and the sadness of the
facts causing the change cannot be
considered. [Barbara] has come into a
significant amount of money that in this
Court’s opinion is enough to modify the
original maintenance award. The Court
modifies [Randy’s] maintenance obligation to
$800.00 a month.
The Court does not feel that
termination is appropriate given the age of
the parties, the length of the marriage and
the lifestyle established during the
marriage. [Barbara] does have expenses and
the sum of money she will be receiving,
although significant, is not enough to
completely terminate support. Each party
will be responsible for their own attorney
fees. This Order is retroactive to April
10, 2003.
Randy filed timely CR 52 and CR 59 motions, requesting
the circuit court to make a finding as to whether Barbara was
capable of supporting herself through her own financial
resources and employment, to amend its findings concerning the
economic benefits she received from living with Newell, and to
find that Barbara had not met the threshold for maintenance or
at least should not receive any maintenance while she was living
with Newell at Overbrook Farm.
Barbara objected to Randy’s
motion in a response limited to those issues Randy raised in his
motion.
Following a hearing in August, the circuit court
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entered an Order on September 18, 2003, ruling on Randy’s
motion, the pertinent part of which is set forth below:
1. [Randy’s] motion to make a specific
finding of fact concerning whether [Barbara]
is capable of supporting herself through
appropriate employment is sustained, and the
Court finds as a matter of law that
[Barbara] can support herself through
appropriate employment although not at as
high a level as she enjoyed during the
marriage.
2. [Randy’s] motion requesting the
Court to amend its findings of fact to
reveal that [Barbara] has received some
economic benefits from Mr. Newell is
overruled because the Court’s previous
Opinion and Order does in fact find that
there was an economic benefit to [Barbara]
although not so substantial and continuing
to modify the maintenance award as made in
the Court’s Opinion and Order of August 4,
2003.
3. [Randy’s] request for the Court to
change its conclusions of law concerning
[Barbara’s] entitlement to maintenance for
at least the time she lived with Mr. Newell
is overruled.
4. [Randy’s] motion to terminate
maintenance permanently or at least for the
months [Barbara] resided with Mr. Newell is
overruled because the Court does not find
that relationship to constitute change[d]
circumstances “so substantial and continuing
as to make the terms (of the maintenance
award) unconscionable. . . .”, see, KRS
403.250(1), parenthetical statement added.
Randy’s second appeal and Barbara’s cross-appeal followed.
three appeals have been consolidated for review.
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All
Although he listed more issues in his prehearing
statement, Randy raised three issues in his combined brief
regarding the propriety of maintenance and the amount of
maintenance awarded.
On the other hand, Barbara asserts that
she was entitled to maintenance, that the award of $1,500 per
month was appropriate, that the circuit court correctly held her
living arrangement was not sufficient to terminate maintenance,
and that she was entitled to attorney fees.
APPEAL NO. 2002-CA-000940-MR
We shall first address Randy’s appeal from the circuit
court’s original maintenance award in the January 7, 2002,
supplemental decree.
Our standard of review regarding an award
of maintenance is that of abuse of discretion.
“The amount and
duration of maintenance is within the sound discretion of the
trial court.”1
In Weldon v. Weldon,2 this Court held:
Furthermore, we are mindful that in matters
of such discretion, “unless absolute abuse
is shown, the appellate court must maintain
confidence in the trial court and not
disturb the findings of the trial judge.”
(citations omitted.)
The legislature set out the requirements for an award
of maintenance in KRS 403.200:
(1)
1
2
In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court
Russell v. Russell, Ky.App., 878 S.W.2d 24, 26 (1994).
Ky.App., 957 S.W.2d 283, 285-86 (1997).
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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)
(b)
(2)
Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home.
The maintenance order shall be in such
amount 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;
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(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 while meeting those of
the spouse seeking maintenance.
Randy asserts that the circuit court’s reasoning for
awarding $1,500 per month was unclear, that it failed to address
Barbara’s inheritance, that Paragraph 12 of the supplemental
decree was ambiguous, and that it failed to limit the term of
maintenance to when Barbara reached retirement age.
Paragraph
12 of the supplemental decree reads as follows:
Wife is awarded $1,500.00 a month
maintenance. This amount will be payable
monthly until Wife remarries or dies. At
that time Wife will be able to also use her
retirement accounts, and Husband will also
be at retirement age. Maintenance will be
paid twice a month in conjunction with the
pay periods of Husband in the amount of
$750.00 each. (Emphasis added.)
Although we hold that the circuit court did not at that point in
the case abuse its discretion in the amount awarded, it is clear
that the portion of the supplemental decree underlined above is
ambiguous when read together.
It appears that the circuit court
omitted a reference to retirement age when indicating the
conditions, when met, that would cause maintenance to terminate.
As Randy noted in his brief, Barbara conceded that maintenance
should terminate once she either died or reached age 66, at
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which time she would become eligible to collect social security
benefits.
For this reason, we hold that the circuit court
abused its discretion in failing to provide for the termination
of maintenance once Barbara reaches retirement age, in addition
to the contingencies of her remarriage or death, and we must
vacate that portion of the supplemental decree.
APPEAL NO. 2003-CA-002016-MR
In his second appeal, Randy argues that the circuit
court abused its discretion by denying him any relief during
Barbara’s cohabitation with Newell and by failing to find that
Barbara’s income and other assets allowed her to meet her
reasonable needs, thereby negating her right to collect
maintenance.
On the other hand, Barbara asserts that the
changed circumstances were not so substantial as to make the
award of maintenance unconscionable.
She also correctly notes
that KRS 403.250(1), addressing the modification of maintenance,
is the applicable statute in this situation.
KRS 403.250(1) provides, in relevant part, that “the
provisions of any decree respecting maintenance may be modified
only upon a showing of changed circumstances so substantial and
continuing as to make the terms unconscionable.”
In Wilhoit v.
Wilhoit,3 the former Court of Appeals defined “unconscionable” as
3
Ky., 506 S.W. 2d 511, 513 (1974).
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“manifestly unfair or inequitable.”4
In the present matter, we
note that although the circuit court held that Barbara’s
inheritance constituted a significant enough change to reduce
her maintenance award to $800 per month, her living arrangement
with Newell did not.
We disagree.
The Supreme Court of Kentucky’s opinion in Combs v.
Combs5 is the seminal case on this issue.
In Combs, the former
husband moved to terminate or suspend maintenance due to his
former wife’s cohabitation with another man in a common law or
de facto marriage relationship.
As in the present matter, there
was no indication that the parties agreed, or that the decree
provided, that maintenance was to terminate if the dependent
spouse entered into a cohabitation situation with another man.
The Supreme Court relied upon KRS 403.250(1) and held that “a
maintenance recipient’s cohabitation can render continued
maintenance ‘unconscionable’ if the nature of the cohabitation
constitutes a new ‘financial resource’ as contemplated in KRS
403.200(2)(a).”6
Recognizing that “not every instance of cohabitation
constitutes a change in circumstances making continued
4
See also Bickel v. Bickel, Ky.App., 95 S.W.3d 925 (2002); Shraberg v.
Shraberg, Ky., 939 S.W.2d 330 (1997).
5
Ky., 787 S.W.2d 260 (1990).
6
Id. at 262.
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maintenance ‘unconscionable’”,7 the Combs court listed six
elements to consider:
1. Duration — It should never be the
intention of the Court to allow for
maintenance reduction based upon casual
“overnights” or dating. A showing of
substantially changed circumstances under
KRS 403.250(1) based upon cohabitation,
necessarily involves proof of some
permanency or long-term relationship.
2. Economic Benefit – The relationship must
be such to place the cohabitating spouse
in a position which avails that spouse of
a substantial economic benefit. The
scope and extent of the economic benefits
should be closely scrutinized. If the
“cohabitation” does not change the
cohabitating spouse’s economic position,
then reductions should not be permitted.
3. Intent of the Parties – Does it appear
that the cohabitating spouse is avoiding
re-marriage to keep maintenance? Does it
appear from the circumstances that the
cohabitating parties intend to establish
a “lasting relationship?”
4. Nature of the Living Arrangements – Does
it appear that the cohabitation is merely
a space sharing situation or is there one
common household?
5. Nature of the Financial Arrangements – Is
there a “pooling of assets?” Is there
actually a joint or team effort in the
living arrangements? Who pays the bills
and how are they paid?
6. Likelihood of a Continued Relationship –
Does it appear that the relationship will
continue in the future? Do the parties
7
Id.
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intend the relationship to continue
indefinitely?[8]
We shall address each of these elements in turn.
The first element addresses duration.
In the present
case, Barbara moved in with her boyfriend, Newell, once she
vacated the marital residence in June 2002.
Although she had
purchased her own house the next February, Barbara was still
living with Newell at the time of the hearing in April.
At the
least, Barbara and Newell had been living together for ten
months at the time of the hearing.
Furthermore, it appears that
their relationship started as far back as July of 2001, when
they were introduced by a mutual friend.
It was also
established that Barbara and Newell shared the same bedroom.
Their relationship was clearly of a long-standing nature.
Barbara also benefited economically from the
arrangement.
Newell testified that as a part of his employment
at Overbrook Farm, he lived at a house on-site, and did not have
to pay any rent or utilities.
He only had to pay the telephone
and satellite bills and for food.
It follows that when Barbara
moved in with him, she no longer was responsible for paying any
rent or utilities, which comprised a large potion of her listed
monthly expenses.
Furthermore, she and Newell split the cost of
the telephone and satellite services as well as their food.
8
Id.
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She
contributed $200 per month to those expenses, which constituted
half of those monthly expenses not covered by Newell’s
employment.
Additionally, Newell testified that he paid for the
majority of their entertainment expenses, and paid for Barbara’s
airline tickets for trips with him to Hawaii and Florida.
Barbara clearly received an economic benefit by moving in with
Newell in that she was no longer required to pay any rent,
mortgage, or utilities, and split the other household expenses
with Newell.
Regarding the intent of the parties, the testimony
reveals that Barbara’s intention to move in with Newell was
based upon her desire to find and purchase a house and her
inability to obtain rental housing because of her pets.
Furthermore, Newell did not intend to move into Barbara’s house
once she purchased it, but rather was planning on staying in his
house on Overbrook Farm.
However, we must note that Newell
lived at Overbrook Farm as a part of his employment.
As to the nature of their living arrangements, it
appears that there was one common household rather that a space
sharing situation.
Barbara and Newell shared a bedroom, shared
expenses, vacationed together, and went out to dinner with each
other.
She also received her mail at Newell’s house.
Barbara and Newell’s financial arrangements were more
in the nature of a pooling of assets.
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They had a joint bank
account into which they would deposit funds to pay for their
shared expenses.
However, Barbara apparently paid for her own
personal expenses, and expended the majority of the money to pay
for the construction of a dog run in Newell’s yard.
Finally, there is a likelihood of a continued
relationship between Barbara and Newell, although neither
indicated any plans to marry.
Newell indicated that he wished
the relationship to continue.
Based upon our review of the Combs factors, we cannot
hold that there is substantial evidence to support the circuit
court’s finding that Barbara’s living arrangement with Newell
did not constitute a significant enough change in circumstances
to make a continued award of maintenance unconscionable.9
Barbara received a sizeable economic benefit when she moved in
with Newell in that she no longer had to pay any rent or utility
bills, and was able to split other household expenses rather
than pay for them entirely.
Barbara’s relationship with Newell
was a long-term, romantic one that was likely to continue into
the future.
Her arrangement with Newell clearly constituted a
new financial resource as contemplated in KRS 403.200(2)(a),
making her continued award of maintenance unconscionable, at
least during the period of time she continued to live with
Newell and was not required to pay any rent, mortgage or
9
Id.
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utilities.
For this reason, we must reverse the circuit court’s
ruling regarding cohabitation.
Randy also argues that Barbara’s maintenance should be
terminated because she no longer met the threshold required for
an award of maintenance due to her inheritance, her
distributions from the marital and non-marital estates, her
investment income, and her employment income.
However, it is
well settled in the law that “KRS 403.250(1) provides the
exclusive method for modification of maintenance awards.”10
Therefore, the circuit court is precluded from addressing KRS
403.200(1) and determining whether Barbara still meets the
threshold for maintenance.
But this does not mean that the
circuit court cannot reduce her maintenance award to $0 after
considering KRS 403.200(2)(a), in particular the financial
resources available to her.
We leave it to the discretion of
the circuit court to determine the proper amount of maintenance
to award on remand.
CROSS-APPEAL NO. 2003-CA-002079-MR
In her cross-appeal, Barbara contends that the circuit
court erred in reducing her maintenance payment from $1,500 to
$800 per month and in ordering each party to be responsible for
his or her own attorney fees.
10
Randy argues that the trial
Roberts v. Roberts, Ky.App., 744 S.W.2d 433 (1988).
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court’s rulings were within its discretion, and that Barbara
failed to preserve her argument regarding attorney fees.
It does not appear to the Court that Barbara properly
preserved either issue raised in her cross-appeal.
Barbara
contends that she preserved the issue regarding maintenance in
her response to Randy’s CR 52 and CR 59 motions and in her
notice of cross-appeal.
However, her response to Randy’s post-
judgment motions merely opposes his motions.
She raised no
issue in support of her present argument that her maintenance
award should not have been reduced at all.
Furthermore, Barbara
never raised the issue of attorney fees before the circuit court
in the context of the August 4, 2003, ruling.
She did not seek
attorney fees either prior to or after that ruling in any type
of post-judgment motion.
Finally, she did not include a
statement regarding issue preservation at the beginning of this
argument pursuant to CR 76.12(4)(c)(v).
In light of our
previous rulings in the direct appeal and Barbara’s failure to
preserve the issues she raised, we dismiss her cross-appeal.
For the foregoing reasons, the circuit court’s
original award of maintenance is vacated, its ruling regarding
the modification of maintenance is reversed, and this matter is
remanded for further proceedings consistent with this opinion.
Barbara’s cross-appeal is dismissed.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
W. Stokes Harris, Jr.
Lexington, KY
Leslie Rosenbaum
Brandi Simon
Lexington, KY
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