ROBERT A. LEVENSON v. CHERYL LYNN LEVENSON
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RENDERED:
SEPTEMBER 1, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000982-MR
AND
NO. 2005-CA-001116-MR
ROBERT A. LEVENSON
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 04-CI-03887
CHERYL LYNN LEVENSON
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND SCHRODER, JUDGES; MILLER,1 SPECIAL JUDGE.
GUIDUGLI, JUDGE:
Robert A. Levenson (hereinafter “Andy”)
appeals from an order of the Fayette Circuit Court in a
dissolution of marriage proceeding.
Andy claims that the award
of maintenance was excessive in that his former wife Cheryl can
meet her reasonable needs, and she is therefore not entitled to
maintenance.
Cheryl Levenson cross-appeals, arguing that if
maintenance is reduced she is entitled to additional marital
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
property.
She also seeks attorney fees.
For the reasons stated
below, we affirm the order on appeal.
Andy and Cheryl were married in 1982.
The marriage
produced two sons – Andrew, who now is approximately 22 years
old, and Joseph, who is about 17 years old.
Andy and Cheryl
separated in 2004, and Andy subsequently filed a petition in
Fayette Circuit Court seeking dissolution of marriage.
On April 29, 2005, the circuit court entered an order
styled “findings of fact and conclusions of law.”
It noted
that the parties agreed to issues regarding custody, timesharing
and child support.
It also addressed property valuation and
division, and spousal maintenance.
On the latter issue, the
court found that Cheryl’s monthly income from her job at Kroger,
combined with child support of $1,098 yielded a monthly income
of approximately $2,350.
As to Cheryl’s claim of $8,000 in
monthly expenses, the court opined that she “will have to learn
to live on less.”
Andy’s gross monthly income was found to be somewhere
in the range of $15,000 per month, with a net of about $10,700
per month.
Andy was also found to receive other corporate perks
including a luxury automobile.
By agreement of the parties, the
court interviewed a certified public account, after which the
court concluded that Andy’s actual take-home salary might be 20%
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less than the $10,700 figure.
The circuit court accepted Andy’s
claim of monthly expenses in the amount of $4636.
On the issue of maintenance, the court undertook the
KRS Chapter 403 analysis, looking to whether Cheryl could meet
her reasonable needs in light of the KRS 403.200 factors.
In so
doing, it concluded that Andy should pay to Cheryl the sum of
$2,600 per month for 10 years, reduced to $2,000 per month
thereafter for 8 years.
These findings and conclusion were
incorporated by reference into a decree of dissolution entered
on May 24, 2005.
This appeal followed.
The sole issue for our consideration on direct appeal
is Andy’s claim that the award of maintenance was excessive and
improper.
He argues that Cheryl’s monthly expenses were
theoretical, that some expenses were for luxury items for
Joseph, and that the expenses included support of the
emancipated child, Andrew.
Andy also maintains that the court
erred in using income averaging rather than following the
requirements of KRS 403.200.
In sum, he claims that Cheryl is
able to meet her reasonable financial needs and is therefore not
entitled to an award of maintenance.
He seeks an order vacating
the circuit court’s award of maintenance.
We have closely examined the written arguments, the
record and the law, and find no basis for reversing the Fayette
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Circuit Court’s award of maintenance.
As the parties are well
aware, KRS 403.200 addresses maintenance.
It states,
(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 circumstances 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;
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(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
while meeting those of the spouse
seeking maintenance.
In the matter at bar, the circuit court expressly
addressed the factors of KRS 403.200, and applied its findings
of fact to those guidelines in concluding first, that
maintenance was warranted, and second, in fixing the amount of
maintenance.
It found, for example, that Cheryl lacked
sufficient property to provide for her reasonable needs, and
that she was unable to support herself through appropriate
employment.
These findings are supported by the record.
Evidence was adduced that Cheryl’s monthly income from Kroger is
approximately $1,250, and that her reasonable needs exceed that
amount even when child support is considered.
The circuit court went on to address each of the
factors set forth in KRS 403.200(2).
It noted that the parties
had been married for 27 years,2 during which Andy was the primary
income earner.
The court recognized Cheryl’s age of 45, the
relative limited nature of her income earning potential, and the
fact that the parties’ younger son, Joseph, had emotional and
2
It appears from the record that the parties actually were married 22 years.
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other problems requiring additional treatment costs.
It also
examined the ability of the spouse from whom maintenance was
sought (Andy) to meet his reasonable needs while meeting the
needs of the requesting spouse (Cheryl).
Establishing the
amount and duration of maintenance is within sound discretion of
trial court,3 and Andy has not shown an abuse of that discretion.
As to Andy’s specific claims of error, we are not
persuaded that Cheryl’s monthly expenses were theoretical, or
that the circuit court included luxury items in its calculation
of her expenses.
Cheryl originally claimed $8,000 in monthly
expenses, which the circuit court summarily rejected as
excessive.
It subsequently examined her claimed expenses as
part of its KRS 403.200 analysis to conclude that she was
entitled to $2,600 per month, diminishing to $2,000 per month.
These findings and conclusions are supported by the record and
the law.
Andy also contends that the trial court erred by
income averaging, i.e., seeking to equalize the parties’ postdecree incomes.
This argument is not persuasive.
Nothing in
the order on appeal, or the record as a whole, indicates that
the circuit court sought to reach a result of equal incomes.
Rather, the court expressly relied on the factors enumerated in
3
Weldon v. Weldon, 957 S.W.2d 283 (Ky. App. 1997).
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KRS 403.200 in establishing the maintenance award, and we find
no error on this issue.
Andy’s third argument is that the circuit court erred
in awarding $2,600 per month in maintenance for 10 years,
followed by $2,000 per month for 8 years.
He claims that this
award is excessive and not supported by the law.
This argument
is merely a restatement of his first argument, i.e., that Cheryl
is not entitled to maintenance.
Having determined that the
circuit court properly applied KRS 403.200 to the facts in
reaching its award of maintenance, the instant argument is moot.
In her cross-appeal, Cheryl argues that if we find the
maintenance award to be excessive, she is entitled to additional
marital property.
She bases this argument on her contention
that Andy received more marital property than did she, and that
the maintenance award had the effect of equalizing this
disparity.
Having determined that the circuit court did not
abuse its discretion on the maintenance issue, and because the
condition precedent to Cheryl’s argument did not occur (i.e., no
reduction in maintenance), this argument is moot.
Cheryl also contends that she is entitled to attorney
fees.
She notes that she owed over $12,400 in attorney fees and
accountant fees, and maintains that the trial court committed
reversible error in failing to award these fees because of the
disparity in the parties’ incomes and marital property
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distribution.
The assessment of attorney fees falls within the
sound discretion of the trial court.4
Cheryl received a
substantial maintenance and marital property award, and nothing
in the record or the law compels us to conclude that the circuit
court abused its discretion in failing to award attorney and
accountant fees to Cheryl.
For the foregoing reasons, we affirm the findings of
fact, conclusions of law, and decree of dissolution of marriage
of the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Crystal L. Osborne
Lexington, Kentucky
Lola Philpot Lewis
Lexington, Kentucky
4
Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990).
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