MAINTENANCE – annotations -KRS 403.200 – KRS 403.250

“MAINTENANCE” AWARDS AND PROCEDURES
On this page you will find the two relevant statutes regarding maintenance: 403.200 and 4303.250 along with selected annotations of relevant cases.
The Annotations on this page all pre-date 2000, but the last we checked the statutes have not changed. Thus, these may be the defining cases.
Regarding KRS 403.200   (Annotations prior to 2000)
Regarding KRS 403.250  (Annotations prior to 2000)
 
REGARDING KRS 403.200
KRS 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 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;
(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.
History: Created 1972 Ky. Acts ch. 182, sec. 10.     
CASES DISCUSS ING “MAINTENANCE” AWARDS AND PROCEDURES 
KY     Russell v. Russell, 878 S.W.2d 24 (Ky.App. 03/18/1994)
There is not a presumption or requirement that marital property be equally divided in a dissolution of marriage action. McGowan v. McGowan, Ky. App., 663 S.W.2d 219, 223 (1983); Quiggins v. Quiggins, Ky. App., 637 S.W.2d 666, 669 (1982); and Herron v. Herron, Ky., 573 S.W.2d 342, 344 (1978). Marital property must be distributed in accord with KRS 403.190. Pursuant to this provision, the court must assign each spouse their non-marital property and then divide the couple’s marital property in “just proportions,” without regard to marital misconduct and in light of the following factors: each spouse’s contribution to the acquisition of the marital assets, including homemaking duties; the value of each spouse’s non-marital property; the duration of the marriage and the economic circumstances of each spouse at the time of distribution. KRS 403.190(1)(a)-(d). The standard of review is whether the trial court abused its discretion. Herron, supra, at 344.
The amount and duration of maintenance is within the sound discretion of the trial court. Gentry v. Gentry, Ky., 798 S.W.2d 928, 937 (1990); Combs v. Combs, Ky. App., 6 22 S.W.2d 679, 680 (1981), citing KRS 403.200(2) and Browning v. Browning, Ky. App., 551 S.W.2d 823 (1977). It is within the trial court’s discretion to terminate a maintenance award upon the recipient’s “death or remarriage.” Van Bussum v. Van Bussum, Ky. App., 728 S.W.2d 538, 539 (1987). Consequently, Frank’s argument, regarding the term of Julia’s maintenance, must be rejected

KY     Poe v. Poe, 711 S.W.2d 849 (Ky.App. 03/28/1986)
Nowhere in Ratcliff, supra, does it state that a nonvested military pension, as an “economic circumstance,” is to be considered as a factor in awarding maintenance. Yet Light, supra, treats the pension involved as an equitable circumstance potentially entitling the nonmilitary spouse to an award of maintenance under KRS 403.200. Both these conceptually distinct approaches raise serious questions. While both Ratcliff, supra, and Light, supra, rely upon the common rationale of “economic circumstance,” the results they achieve are totally distinct. Apparently, Ratcliff, supra, would seek a just distribution of property by awarding the nonmilitary spouse the lion’s share of the marital property to offset his or her spouse’s future pension income. Light, supra, on the other hand, would seek to shift the benefit of this future income to maintenance payments for the civilian spouse. The difficulty with the first approach, the Ratcliff solution, is that the time at which the economic circumstances of each spouse are to be considered is “when the division of property is to become effective,” which in most cases will be the date of the decree. At that time, the nonvested pension is no less “speculative” than it would otherwise have been if it were declared to be marital property. The serviceman involved may still retire or die before his interest in payment vests thus leaving the nonmilitary spouse with a disproportionate share of the couple’s property. As a practical matter, also, there simply may not be enough marital property to compensate. If then, in fact, the speculative nature of nonvested pensions is truly the stumbling block, the Ratcliff decision is no cure for the problem.
 

KY     Lovett v. Lovett, 688 S.W.2d 329 (Ky. 04/11/1985)
This court interpreted KRS 403.200(1), in Casper v. Casper, Ky., 510 S.W.2d 253, 255 (1974), to mean that:
Casper this sets out the threshold which must be crossed before we consider the amount of maintenance. There is no question herein concerning the lack of sufficient property to provide for the reasonable needs of the wife, inasmuch as Nancy’s total assets were slightly in excess of $25,000. There was also no abuse of discretion in the finding by the trial court that Nancy has been unable to support herself through “appropriate private employment,” despite her educational background and her best efforts at securing work.
We must then consider whether the maintenance awarded herein constitutes an abuse of discretion, and in so doing examine the meaning of the phrase “standard of living established during the marriage” contained in KRS 403.200(1)(b) by judicial decision, and expressly contained in KRS 403.200(2)(c). In making our determination, we first note that the key word is the word “established.” Although numerous cases since Casper, supra, have used the word “established” and “enjoyed” interchangeably, these are not words of the same definition of connotation. “Established” is customarily defined as “made firm,” “brought into existence,” “set on a firm basis,” “put into a firm position,” etc., and has its derivation from the Latin and French words “stabilire” or “stabilis,” meaning, literally, “stable.” “Enjoyed,” on the other hand, is derived from the French “en” plus “joie(r)” and means “took pleasure or satisfaction in.”
Thus, an “established” standard of living is not necessarily one which was “enjoyed” over a protracted period of time, but is the product of many factors. Although a professional degree, a license to practice, or an acquired specialty may not be property in the literal sense, they are assets of the marriage. For example, recognition of these as assets has been a long practice of lending institutions which make signature loans to newly practicing professionals. In the instant case, these assets were produced by the combined efforts of the husband, by his application of his abilities and his diligence, and by the contribution of the wife as a homemaker and mother, as well as her financial contribution of 80% of the income during the period these assets were acquired. Also, these are assets which of themselves must be considered when contemplating “the standard of living established during the marriage.”
Herein, the court considered of primary importance the income of $125,000 attained by the professional spouse during the year commencing July 1, 1980, and ending June 30, 1981. During this entire period, the parties hereto were separated, so this standard of living was hardly “enjoyed.” The record discloses that the husband’s income for the two years next preceding the separation was $26,000 and $63,500. However, we find no error in applying the 1981 figure as relating not only to KRS 403.200(2)(f)– the ability of the husband to pay–but also as indicia of the standard of living established during the marriage by attainment of the professional degree and license.
In examining the decisions of other states, we find no clear-cut solution to this “diploma dilemma.” Some states simply deny any recovery by the non-professional spouse. See In re Marriage of Graham, Col., 574 P.2d 75 (1978). Some treat the degree as marital property, as in Moss v. Moss, Mich., 293 N.W.2d 613 (1980). The court in Mahoney, supra, created an equitable remedy which it called “reimbursement alimony.” Indiana, in its code section 31-1-11-11.5-11(c), has provided a statutory remedy, so when “there is little or no marital property, [the court] may award either spouse a money judgment not limited to existing property.”
It is our opinion that the problem is best solved by application of our existing statutory and case law and treating the professional degree and license as relevant factors to be considered in the standard of living established during the marriage, awarding maintenance based thereon. We are cognizant that this solution depends on the specific facts of each case, but this represents no radical departure from the law of domestic relations. We do not intend to sentence the professional spouse to servitude or award the non-contributing spouse with a meal ticket. As maintenance, the ward may be modified in cases of unconscionability.
It is the holding of this court that a professional degree and a license to practice are relevant factors to be considered by the trial court in its determination of the standard of living established during the marriage, both as this standard relates to the ability of the non-professional spouse to support himself/herself and as it relates to the amount and period of time of the maintenance. Also, as maintenance, the amount may be modified under the provisions of KRS 403.250 if proper showing of unconscionability is made.
 
 

KY     Owens v. Owens, 672 S.W.2d 67 (Ky.App. 06/29/1984)
Lynne argues that the trial court did not divide the marital properties in “just proportions.” A review of this issue is not possible because the trial court failed to find a value for properties exchanged in kind. See Hollon v. Hollon, Ky., 623 S.W.2d 898 (1981).
In this regard it has been hinted that the award of maintenance was part of the property division. An award of maintenance must conform with KRS 403.200. Non-marital property and the party’s proportion of marital property must be awarded first because this is the property the court must consider in determining whether the the party “[l]acks sufficient property . . . to provide for his reasonable needs.” KRS 403.200(1)(a). If income from Lynne’s non-marital property, and her proportion of marital property would provide for her reasonable needs, then maintenance should not be awarded.Colley v. Colley, Ky., 460 S.W.2d 821 (1970).
James argued that the trial court awarded Lynne less marital property because she refused to obtain employment. This factor is not to be used in determining the division of marital property, but a factor in determining whether maintenance should be awarded. KRS 403.200(1)(b).
The amount of maintenance to be awarded is determined by using the factors listed in KRS 403.200(2). These factors include financial resources, education and training, standard of living established during the marriage, duration of the marriage, age, physical condition, etc.
On remand, the court is directed to award the parties their non-marital property, determine the value of the property divided in kind, make any adjustments in division of marital property necessary to justly apportion such property, and award maintenance if necessary under KRS 403.200(1) in such amounts as required by KRS 403.200(2).
 
 

KY     McGowan v. McGowan, 663 S.W.2d 219 (Ky.App. 12/30/1983)

Inman II settled one issue: a professional degree may not be treated as marital property. We are not persuaded, however, to adopt the view set forth in dictum in Inman II that a spouse who has worked and financially contributed to the other spouse’s acquisition of a professional degree should automatically receive a monetary award based on a prescribed formula. Our dissolution of marriage statutes simply do not authorize trial courts to make such an award. Moreover, we believe that those trial courts which attempt to mechanically apply such a formula would wreak havoc at least as often as they succeed in working equity. This does not mean, however, that we believe the efforts and economic sacrifices of one spouse who has put the other spouse through school should go unrecognized and uncompensated if they later divorce. On the contrary, we believe that the marital property statute, KRS 403.190, and the maintenance statute, KRS 403.200, already include an adequate means for compensating the non-professional spouse, and, thus, that it would be inappropriate for us to judicially create such a right.

 

 
 
KY     Carter v. Carter, 656 S.W.2d 257 (Ky.App. 09/09/1983)
Any discussion concerning the issue of maintenance must begin with a reference to the applicable statute. Section (1) of K.R.S. 403.200 provides that:
[T]he 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….
Once it is determined that the conditions in K.R.S. 403.200(1) have been satisfied, section (2) outlines “relevant factors” for the court to consider in determining the amount and duration of maintenance.
Pertinent case law provides that if the seeking party fails to satisfy the conditions of either K.R.S. 403.200(1)(a) or (1)(b), maintenance need not be granted. Thus, if the trial court finds that the party seeking maintenance can support himself through appropriate employment, there is no requirement for the court to make a finding as to whether or not that party lacks sufficient property to meet his needs. Graham v. Graham, Ky. App., 595 S.W.2d 720 (1980).
The trial court made no specific finding as to whether appellant’s property is sufficient to meet her needs or whether appellant is able “through appropriate employment” to support herself. Findings made by the court relevant to K.R.S. 403.200(1)(b) are as follows: “She is not working”; and, “Prior to the marriage Petitioner worked for Respondent’s company as a cleaner, earning approximately $6,000.00 per year.” There are no findings concerning her education or training, or lack thereof, or of her ability to secure employment at the time of the dissolution.
We are left to infer from those findings that were made, together with the court’s denial of maintenance, that the court believes appellant is able to support herself as she did prior to the marriage regardless of her current lack of employment or skills. Such inferential findings are clearly erroneous under the facts of this case.
In Casper v. Casper, Ky., 510 S.W.2d 253 (1974), the former Court of Appeals held that the criterion provided by K.R.S. 403.200(1)(b) relative to appropriate employment is relative rather than absolute and depends upon the standard of living established during the marriage. Id. at 255. If the Casper court was unwilling to find that a wife accustomed to a relatively high standard of living was engaged in “appropriate employment” by working as a clerk-typist, we are unable to so find in this case of an unemployed ex-wife who had previously earned no more than $6,000 per year. As the appellant in this case lacks a high school education, has no formal skills, and has no job, we find it difficult to comprehend how she can support herself at all, let alone in any fashion resembling the standard of living she enjoyed during the marriage wherein she resided in the new home of her husband valued at more than $75,000, and where four vehicles were at the parties’ disposal. Appellant’s brief employment by appellee during the marriage at less than generous wages is not justification for now forcing her to face the world as a tatterdemalion equipped only with a few kitchen utensils and personal items. See Atwood v. Atwood, Ky., App., 643 S.W.2d 263 (1982).
Appellee argues in addition the following: 1) That this was a “rocky and stormy” marriage, thus no maintenance was appropriate; and 2) That appellant’s request for maintenance is a “fee” for services rendered during the marriage, or a “pay-off.” If the wife is to be paid a “fee” for her services, he complains, who will pay the husband?
Assuming this marriage indeed was “rocky and stormy” and further assuming appellant was the cause, neither fact has any bearing on the determination to be made under K.R.S. 403.200(1). Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973). Fault can be considered, along with the other factors in K.R.S. 403.200(2), only in determining the amount of maintenance. Id. at 138.
In holding that appellant is entitled to maintenance in accordance with the provisions of K.R.S. 403.200(1), we are not suggesting that she is necessarily entitled to the $11,000 sum she requests for the purpose of purchasing an automobile and attending school.
The trial court should consider all relevant factors outlined in K.R.S. 403.200(2) in arriving at the amount and duration of the award. The fact that this marriage was for the short duration of two years is certainly a factor to be considered in determining an appropriate amount of maintenance. The court may also consider appellant’s prospects for becoming self-supporting. See Frost v. Frost, Ky. App., 581 S.W.2d 582, 585 (1979). Additionally, with respect to K.R.S. 403.200(f), the court should make a more specific determination of appellee’s financial status and ability to pay maintenance. The fact that appellee is “heavily indebted,” however, does not necessarily absolve him from the duty to pay maintenance.

KY     Light v. Light, 599 S.W.2d 476 (Ky.App. 05/09/1980)
When considerations of KRS 403.190 and 403.200 require some division of a pension, the amount and the beginning time must be determined. The beginning time may depend on current need or whether it is merely a method to share the potential asset. The time at which the pensioner will be eligible to draw a pension will be a factor. Charles Light is eligible now, but others may have a substantial time lag between the time of the dissolution and the time of eligibility. If any maintenance is required immediately, the amount paid before the pension is payable should affect the ultimate amount expected to be shared from the pension.
 
 
KY     Graham v. Graham, 595 S.W.2d 720 (Ky.App. 02/29/1980)
She contends that the trial court erred in not making findings as to the wife’s reasonable needs pursuant to KRS 403.200(1)(a) and in failing to award maintenance to the appellant for four (4) years while she finished college, and the court erred in refusing to require the respondent-appellee to name the two children as first beneficiaries on the existing life insurance policies.
Appellant contends that the trial court erred in failing to make a finding of the wife’s reasonable needs as envisioned by KRS 403.200(1)(a). The determination of this issue requires consideration of KRS 403.200, which provides in part:
 (1) In a proceeding for dissolution of marriage… 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.
KRS 403.200 outlines only the procedures to be followed when maintenance is granted: maintenance can be ordered only if the court finds that both (a) and (b) are true. Inman v. Inman, Ky.App., 578 S.W.2d 266 (1979). In the instant case, the trial court found that Vicki was able to support herself through appropriate employment. Consequently, since appellant did not meet part (b) of the two-part test and therefore could not be awarded maintenance, it is irrelevant whether Vicki did or did not lack sufficient property to provide for her reasonable needs. There appears to be no requirement under the statute for the trial court to make a finding as to the wife’s reasonable needs if it finds that she is able to support herself through appropriate employment.
 
 

KY     Casper v. Casper, 510 S.W.2d 253 (Ky.App. 03/01/1974)
The allowance for maintenance was based on findings of fact that the wife was presently employed as a clerk-typist at $2.05 per hour for a 40-hour week, that the husband was earning about $14,000 per annum with Greyhound, and that:
“Neither party is incapable of self-support through appropriate employment, but petitioner because of her low earning capacity cannot adequately provide for her reasonable needs at the present time.”
The husband’s main contention is that in view of this last finding, and since the wife had managed to support herself during most of the period of the separation, the award of maintenance was wholly unauthorized. This position overlooks the fact that besides the $3480 received from the husband she had consumed some $2100 of the cash on hand at the beginning of the separation and apparently was not making any provision for replacement of the old automobile or for upkeep of the mobile home. Be that as it may, however, the real issue here is whether the criterion provided by KRS 403.200(1)(b) is absolute or relative, and we think the answer must be that it is relative.
It is to be noted that once the conditions of KRS 403.200(1) are satisfied, KRS 403.200(2) specifies a number of relative factors to be considered in determining the amount of maintenance, including the “standard of living established during the marriage.” The statute, as did the law before, simply recognizes that what might be ample for a scullery maid is not necessarily sufficient for one accustomed to the lifestyle of a duchess, and it seems to us that the same is true with respect to what is “support.”
In this respect we think a proper construction of KRS 403.200(1) is that maintenance may be awarded only after a finding 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 according to the standard of living established during the marriage.
To illustrate, suppose that under the circumstances of a given case a trial court should determine that the proper amount of maintenance to be paid a divorced spouse with no earning capacity whatever and with no other means of support is $200 per week. Under the appellant’s theory, if that same person could earn $82 per week he or she would not be entitled to any maintenance. We cannot believe the law intended the anomaly that one who cannot work at all may have the benefit of a better standard of living than one who is able to eke out the bare necessities of life.
It is our conclusion that maintenance was authorized in this case. We recognize that on the basis of the situation existing in 1967 the wife was given more than the husband in the division of the marital estate, but that can affect the question of maintenance only to the extent of its net influence upon the relative resources of the parties today. Cf. KRS 403.200(2)(a) and (f).

KY     Purdom v. Purdom, 498 S.W.2d 131 (Ky.App. 06/29/1973)
Appellant states that she cannot tell whether the $24,000, payable at the rate of $200 per month, was maintenance under KRS 403.200 or if it was a division of the marital property under KRS 403.190. In the findings of fact and conclusions of law made pursuant to CR 52.01, there are some statements which we deem it appropriate to relate. After noting that the wife was earning approximately $500 per month, the court stated “* * * she should be able to secure employment for the maintenance of herself.” Later it wrote “(the) court finds it necessary in a division of the marital property, * * * not only for the protection for the wife, but in order that the husband can perform the judgment of the court to require that some payments be made on a monthly basis rather than in a lump sum without possible sacrifice of the property.” Only the $24,000 was payable “* * * on a monthly basis * * *.” As we pointed out heretofore, the $24,000 was designated as “separate maintenance, which shall be payable at the rate of $200.00 per month for a period of ten years * * *.” It was then provided that in the event of the death of the husband during the ten-year period the balance became a lump-sum liability of his estate, but if the wife predeceased the husband the balance was cancelled. In the judgment the court repeated much of what was stated in the findings of fact and conclusions of law which we have referred to and quoted above. We are unable to tell, as was appellant, whether all or a part of the $24,000 was treated as marital property under KRS 403.190 or as maintenance under KRS 403.200. Without such a separation we cannot determine whether or not the wife received that to which she was entitled under these statutes. However, no motion was made in the trial court to correct and clarify the judgment. Since such request was not made in that court, we will not consider this argument. With respect to any request which may be made to interpret the judgment, see Ballew v. Denney, 296 Ky. 368, 177 S.W.2d 152 (1944), and 46 Am.Jur.2d, Judgments, Sec. 72, p. 362.

 
 
KY     Weldon v. Weldon, 957 S.W.2d 283 (Ky.App. 10/10/1997)
Ed’s first argument is that Holly did not meet the statutory requirements for an award of maintenance and that the trial court abused its discretion in awarding maintenance to her. KRS 403.200(1) states that the trial court may award maintenance upon a finding 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 . . . .” Ed argues that because Holly has nonmarital property of approximately $15,000 in value (mainly home furnishings) and a cash payment of approximately $40,000 from him for her half of the marital estate, including the marital equity in the home which Ed retained, she has sufficient property to provide for her reasonable needs. He further argues that since Holly holds a Master’s Degree in Public Service from Western Kentucky University and has a $28,000 per year job, she is clearly able to support herself through appropriate employment.
In Casper v. Casper, Ky., 510 S.W.2d 253 (1974), the Kentucky Supreme Court held that the trial court is to determine whether the spouse seeking maintenance lacks sufficient property to meet her reasonable needs and is unable to support herself through appropriate employment according to the standard of living established during the marriage. Id. at 255. (Emphasis added.) Although Ed and Holly were, as Ed stated, a “working couple,” they nonetheless enjoyed a very comfortable lifestyle with their substantial joint income, their marital residence valued at $136,000, and a country club membership.
In reference to the provisions of KRS 403.200, the Kentucky Supreme Court stated in Perrine v. Christine, Ky., 833 S.W.2d 825 (1992), as follows:
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.
Id. at 826. Considering the nonmarital and marital property assigned to Holly, her annual income, and the standard of living established by the parties during their marriage, we find no abuse of discretion by the trial court in awarding maintenance to Holly.
Ed’s next argument is that the trial court erred in awarding maintenance to Holly until she dies, remarries, or cohabits with an unrelated member of the opposite sex.  
KRS 403.200(2) states:
 (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 while meeting those of the spouse seeking maintenance.
Holly was 46 years old at the time of the trial, and Ed was 45. Once the younger child graduates from high school in 1998, Ed’s maintenance obligation is now $1,200 per month, or $14,400 per year. Under the terms of the judgment, Ed must pay this amount not only for the almost 20 years until Holly reaches the standard retirement age of 65, but he must pay it until she dies, unless she first remarries or cohabits with a nonrelated member of the opposite sex. Assuming that Holly does not die, remarry, or cohabit, the total of Ed’s maintenance payments from the effective date of the maintenance award until Holly reaches age 65 will be approximately one-quarter of a million dollars.
We are mindful that the amount and duration of maintenance is within the sound discretion of the trial court. Russell v. Russell, Ky. App., 878 S.W.2d 24, 26 (1994). 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. Clark v. Clark, Ky. App., 782 S.W.2d 56, 60 (1990). (Emphasis added.) See also Platt v. Platt, Ky. App., 728 S.W.2d 542 (1987), and Moss v. Moss, Ky. App., 639 S.W.2d 370 (1982). Nevertheless, we believe that by approving the DRC report, the trial Judge absolutely abused his discretion by awarding maintenance to Holly past her retirement age of 65. Assuming that Holly reaches age 65 without remarrying or cohabiting, then she will have received maintenance in a substantial amount for a 20-year period. Furthermore, the parties’ income levels will be more equal since she will be entitled to half of Ed’s pension, as he will be entitled to half of hers.
Ed’s next argument is that the trial court erred in awarding child support and maintenance retroactively to the date Holly made an oral motion for temporary child support and maintenance. He notes that the DRC had declined to recommend retroactive child support and maintenance in his report and that Holly had only requested child support and maintenance retroactive to the date of her written motion for temporary child support and maintenance. Although he concedes that the trial court has the right to reject or modify the DRC’s findings, he urges this Court to accept the DRC’s findings and recommendations since to do otherwise would be “patently unfair and unjust.” However, Ed cites no authority to support his arguments in this regard.
Civil Rule (CR) 7.02 permits oral motions to be made during hearings, and Holly contends that there was no objection to her oral motion for temporary childsupport and maintenance, which Ed does not deny. Further, Holly waited approximately a year after she and Ed separated before making an oral motion for temporary child support and maintenance in November 1994 and renewing her request in writing in January 1995. The trial court noted that the DRC reserved ruling on this issue at the hearing due to the nearness of the trial date and stated that further orders would relate back to the November 1994 date. Ed fails to cite any authority indicating that the trial court erred or abused its discretion in imposing child support and maintenance retroactive to the date the motion was made. We thus find no error.
 
 

KY     Gentry v. Gentry, 798 S.W.2d 928 (Ky. 11/08/1990)
The record shows the Fayette Circuit Court considered all the statutory factors. It found Kathy Gentry had been awarded very little property, pursuant to the agreement, and that Tom’s financial resources were also severely diminished. Further, although the parties had established a very high standard of living during the marriage, neither Tom nor Kathy would be able to maintain that standard after dissolution. The court found Kathy was forty-six years old, in good physical and mental health, and, although unable presently to find appropriate employment, she would, with some training, be able to return to the job market. Until her return to work, the court found that Kathy would be able to support herself in a reasonable manner with the maintenance awarded.
The trial court properly considered all factors and the record. Although the application of the statutory factors to the facts might support a larger award, the award of maintenance is left to the trial court’s sound discretion. KRS 403.200(2). We cannot say the Fayette Circuit Court abused its discretion in fixing the amount and duration of maintenance, particularly in view of Tom’s net worth and financial condition as that court found it. We therefore affirm the award of maintenance.
 
 

KY     Roberts v. Roberts, 744 S.W.2d 433 (Ky.App. 02/05/1988)
Once a trial court makes the two findings required by KRS 403.200(1) and determines that a maintenance award is appropriate, the court balances the needs of the paying spouse with the needs of the receiving spouse in determining the amount of the maintenance to be awarded. The statute does not expressly or by inference exclude inherited, nonmarital property from consideration in determining the amount of maintenance to be paid. Rather, in making this determination, the statute directs the court to consider “all relevant factors” including “ability” of the spouse paying maintenance to meet his or her own needs while meeting those of the spouse receiving maintenance. It seems reasonable to conclude that one major factor the court may consider is the total estate of the paying spouse, regardless of its source, since the ability of the paying spouse to support himself arises from all the property he has. See R. Petrilli, Kentucky Family Law, § 25.11 (1987 Cum. Supp.). In Budig v. Budig, Ky., 481 S.W.2d 95 (1972), the former Court of Appeals of Kentucky held that there was no error committed when the trial court included gifts of property from the husband’s father in calculating the husband’s estate and using the husband’s entire estate in determining how much maintenance to award the wife. In Budig, the Court cited Colley v. Colley, Ky., 460 S.W.2d 821 (1970), for the proposition that “the amount of the husband’s estate and his ability to pay . . . are material aspects” in determining a maintenance award. Budig went on to note that the phrase “the husband’s estate” encompassed all of the husband’s estate irrespective of the source.
 
KY     Atwood v. Atwood, 643 S.W.2d 263 (Ky.App. 12/24/1982)
K.R.S. 403.200(1)(a) requires that before a spouse is entitled to maintenance he or she must lack sufficient property to provide for his reasonable needs. While there would be a reasonable expectation that the spouse entitled to maintenance would not fritter away his or her portion of the marital property and would use same properly to help provide for his needs, we will not impose on appellant a duty to invest all or nearly all of her cash portion of the marital settlement into the uninsured and speculative money market.
When the evidence shows, as it does here, that appellant cannot meet her monthly living expenses, then she is justified in expending whatever sums she must from her marital settlement. Her failure or inability to invest the money at the highest rate of interest will not be used by appellee to deprive her of the maintenance to which she is entitled under the statute. The $17,572.05 awarded appellant as marital property is simply insufficient to provide for her reasonable needs.
In Casper v. Casper, Ky., 510 S.W.2d 253 (1974), the former Court of Appeals interpreted K.R.S. 403.200(1)(b) to mean that a spouse would be entitled to maintenance if he is unable to support himself through appropriate employment according to the standard of living established during the marriage. The fact that appellant is capable of working and earning $300 per month does not render her able to support herself when the parties’ standard of living before the separation is taken into account.
The evidence in this case showed that the parties enjoyed a rather high standard of living during the marriage. They owned a large home located on 15 acres of property with a large swimming pool. Although not wealthy, they enjoyed the material comforts of life. Appellant’s present income is not sufficient to maintain her in the insect-infested trailer in which she presently lives, and is certainly not sufficient to maintain her in the style to which she became accustomed during the marriage. The fact that she is working should not be used to deny her maintenance. As was stated in Casper, supra: “We cannot believe the law intended the anomaly that one who cannot work at all may have the benefit of a better standard of living than one who is able to eke out the bare necessities of life.” 510 S.W.2d at 255.
It is the opinion of this Court that the provisions of K.R.S. 403.200(1)(a) and (b) are satisfied and that the trial court abused its discretion when it did not award maintenance to the appellant. This is particularly true in view of the fact that the court itself found appellant’s reasonable living expenses to be twice her income and found that appellee had excess income with which to pay child support and/or maintenance.
                       
 
 

KY     Leveck v. Leveck, 614 S.W.2d 710 (Ky.App. 04/10/1981)
Terrence first addresses in his cross-appeal the issue of whether the trial court erred in finding that Judith was unable to work because of a physical disability. KRS 403.200(1)(a) and (b) establish the criteria for maintenance upon dissolution of marriage. Maintenance can be ordered only if the trial court finds both (a) and (b) to be true. Inman v. Inman, supra. In the instant case the trial court found that:
The petitioner has had training and has become a registered nurse but has not worked in her profession since 1970. She is unable to continue work in her profession because of physical disability and being required to stay with and take care of her infant children.
KRS 403.200(1)(a) and (b) provide that:
In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following the 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. (Emphasis added).
The trial court found that Judith was unable to support herself through appropriate employment and was required to stay home with her children. Terrence cross-appealed only on the grounds that the trial court erred in finding that Judith was unable to work because of a physical disability. Even if Terrence’s contentions were correct, maintenance still would be appropriate because of the court’s finding that the mother was required to stay home with the children.
The question of the correctness of the finding about Judith’s disability must be considered as it is relevant as to the duration of maintenance. Terrence contends that nothing in the record indicates that psychiatric nursing involves “heavy lifting or frequent bending”, the limitation placed upon Judith’s physical activity by Dr. Richard Jelsma, a specialist in neurological surgery. Dr. Jelsma was the only expert witness who testified as to Judith’s condition.
After examining the record and depositions, we cannot say that the findings of the chancellor as to Judith’s disability are clearly erroneous. It is settled that, pursuant to CR 52.01, the findings of a chancellor in a dissolution of marriage case may not be disturbed unless clearly erroneous. Munday v. Munday, Ky.App., 584 S.W.2d 596 (1979); Bruton v. Bruton, Ky.App., 569 S.W.2d 182 (1978). Dr. Jelsma testified as follows concerning Judith:
… the patient was having pain as she described that was related to the degenerative disc and beginning arthritic changes at L5, S1. As a result of her previous ruptured disc, there was narrowing at this level and the narrowing itself would produce some pain and in addition over a period of years there was beginning arthritis as a result of that narrowing and the arthritis also contributed to her pain.
 
 

KY     Chapman v. Chapman, 498 S.W.2d 134 (Ky.App. 05/18/1973)
KRS 403.200 (1)(b) provides that as a prerequisite to the granting of maintenance the recipient must be “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.” We cannot see how appellant’s having introduced proof showing fault on the part of appellee prejudiced appellant’s case. If he had desired to take proof regarding the question of whether appellee’s responsibility for the care of the child prevented her from seeking employment, he should have moved the court to reopen the case for that purpose. He failed to do that so the error was not preserved for appellate review.
                                              

KY     Platt v. Platt, 728 S.W.2d 542 (Ky.App. 04/24/1987)
Appellant further argues that it was improper for the trial court to exclude her own testimony accusing appellee of infidelity. Appellant asserts this is admissible as evidence of fault on the part of appellee and should be considered when determining the amount of her maintenance. She cites KRS 403.200; Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973), and Leveck v. Leveck, Ky. App., 614 S.W.2d 710 (1981).
KRS 403.200 does not include “fault” anywhere as a factor to be considered when arriving at a just amount of maintenance. It states those factors that are to be considered, and describes them as “all relevant factors.” The Legislature did not choose the language “all relevant factors including but not limited to :”; language it could have chosen. It is true that our former Court of Appeals in Chapman, supra, held, despite the glaring legislative exclusion, that fault may be considered in determining the amount of maintenance. However, the fault considered in Chapman was on the part of the party seeking maintenance. In Leveck, supra, the party seeking maintenance sought more money on appeal contending that her spouse was at fault and relying on Chapman. This court, in deciding Leveck, said simply that there was no showing that the trial court failed to consider all relevant factors within KRS 403.200(2).
While we accept the holding of Chapman, noting our prior criticism, here is where we draw the line limiting when fault may be considered to the disregard of KRS 403.200. We believe if considering fault in determining the amount of maintenance has any redeeming quality, it is that it may prevent a windfall to the faulty party seeking maintenance. We decline to further disfigure the statute, against which Chapman is already guilty of mayhem, by holding that the party seeking maintenance may punitively use the fault of his or her spouse to extort an amount of maintenance greater than what the statute would legitimately allow. We do not believe it is constitutionally permissible for the judiciary to reinsert it where the Legislature has seen fit to do otherwise.
 
 

KY     Moss v. Moss, 639 S.W.2d 370 (Ky.App. 03/12/1982)
Regarding maintenance under KRS 403.200 and Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973), the Circuit Court is charged with two separate decisions:
1. does the claiming spouse have the right to maintenance and
2. if so, what is the correct amount?
For the determination of right fault has no bearing. The considerations as laid down in KRS 403.200(1)(a) are economic, primarily whether at the termination of the marriage he or she is in a position to account for his/her own reasonable needs.
Once the right to maintenance is established, the amount is to be determined. In this aspect, and this aspect alone, fault may be considered. Under KRS 403.200(2) other relevant factors are the time necessary for education and training, the standard of living shared during the marriage, the duration of the marriage, and the ability of the other to pay.
 
 

KY     Wood v. Wood, 720 S.W.2d 934 (Ky.App. 10/10/1986)
Secondly, although in its original judgment the trial court awarded the appellee $100,000 in maintenance – to be payable over a ten-year period – it subsequently entered a judgment awarding her no maintenance. Specifically, it ruled that the appellee was not entitled to maintenance or alimony in that the award to her “coupled with her inherited property is sufficient for her to maintain her prior, present and future standard of living.” Notwithstanding such ruling, there is no finding of fact in this second judgment as to the income producing value of the appellee’s inherited property, nor the income producing value of the property awarded to her in the division of the marital assets. Furthermore, the trial court made no finding as to the appellee’s ability to support herself through appropriate employment, nor the standard of living established during the marriage. KRS 403.200. Although the trial court awarded the appellee a cash award of $300,000, the appellant had the option of paying the appellee $50,000 initially, with the balance being payable at the rate of $25,000 per year for ten years. Clearly, if the appellant chose such an option, the appellee would have a minimal amount of principal during this first year with which to generate income, even if it is taken as fact, as is argued by the appellant, that the duplex awarded to her would generate an annual income of $4,320.
Simply stated, the trial court failed to follow the statutory guidelines set forth in KRS 403.200 in denying the appellee an award of maintenance. As such, it is directed on remand of this action to consider the specific statutory language contained in KRS 403.200, and to issue specific findings of fact in determining whether an award of maintenance to the appellee is justified under the statute. This is especially necessary in light of the fact that the appellee was awarded less than half of all the marital assets.
The judgment of the trial. court is affirmed, except as to the ruling denying the appellee an award of maintenance. On remand, the trial court is directed to issue additional findings of fact, following the language of KRS 403.200, in determining whether an award of maintenance to the appellee is warranted.
 
 
KY     Lampton v. Lampton, 721 S.W.2d 736 (Ky.App. 12/19/1986)
We turn next to the trial court’s award of temporary maintenance to the appellee. An award of temporary maintenance must be made on the same basis as permanent maintenance. KRS 403.160(3). Permanent maintenance is appropriate only where the court finds that the spouse seeking it (1) lacks sufficient property to provide for his or her reasonable needs, and (2) is unable to support himself or herself through appropriate employment. KRS 403.200(1); Mosely v. Mosely, Ky. App., 682 S.W.2d 462, 463 (1985). If income from a spouse’s non-marital property, combined with his or her proportion of marital property, would provide for his or her reasonable needs, then maintenance should not be awarded. Owens v. Owens, Ky. App., 672 S.W.2d 67, 69 (1984). As it is undisputed that appellee’s income, including the period prior to disposition of the parties’ marital property, was more than adequate to provide for her reasonable needs, an award of even temporary maintenance was inappropriate and should not have been made.
 
 

KY     Hollon v. Hollon, 623 S.W.2d 898 (Ky. 11/24/1981)
No mention of the property division or maintenance award was made in the trial judge’s conclusions of law. Although the judgment described the property to be divided and its recipient, only a portion of the marital property was valued. We think KRS 403.190 requires the trial judge to do more when distributing marital property. The statute clearly requires that non-marital property be separated and marital property divided in “just proportions” after considering all factors, including those enumerated in the statute. The trial judge also must find the facts and state them specifically in accordance with CR 52.01. When the statute and rule are not complied with, it is inappropriate for this court to search the record and to make findings which the trial judge was required to do.
Because a maintenance award is dependent, in part, on the amount of property owned by the needy spouse, the maintenance award must be vacated pending compliance with the property distribution statute. Moreover, we do not think that the trial judge adequately complied with the standards for awarding maintenance found in KRS 403.200. The statute requires that certain factors be considered when determining whether maintenance should be granted and, if it is granted, in what amount and for what duration. The trial judge, in his findings of fact, merely stated that the wife presently was unable to work and the husband was working. Like the trial court’s property distribution decree, the findings of fact are not complete and specific enough to allow this court to pass upon the property of the maintenance award, nor do they allow us to know whether the trial judge complied with the statute’s mandatory provisions.
We, therefore, vacate the judgment of the Breathitt Circuit Court regarding the property distribution and maintenance award, and remand the case for findings and conclusions as required by KRS 403.190 and KRS 403.200.
 
 

KY     Angel v. Angel, 562 S.W.2d 661 (Ky.App. 02/17/1978)
Under KRS 403.190, the trial court must first assign to each spouse all of his or her separate property. Only after the nonmarital property has been restored does the trial court divide the marital property between the parties. See Farmer v. Farmer, Ky., 506 S.W.2d 109 (1974).
The trial court made no specific finding that any property of the parties constituted nonmarital property. As the bank account did not fall within the property described as being marital property, it would be logical to assume that the trial court considered the bank account to be nonmarital property. However, the bank account is included in the property awarded to Mossie Lee Angel “in lieu of lump sum alimony.” If the bank account constituted her separate nonmarital property, then there was no need to award it to her as maintenance under KRS 403.200. On the other hand, the award of the bank account to Mrs. Angel may not have been intended as an award of maintenance because the court made no findings of fact as required by KRS 403.200.
 
 

KY     Sharp v. Sharp, 516 S.W.2d 875 (Ky.App. 10/25/1974)

The divorce was granted to Mrs. Sharp, therefore she was entitled to maintenance as she did not have sufficient estate of her own to meet the test expressed in KRS 403.200 and in Colley v. Colley, Ky., 460 S.W.2d 821 (1970). Mr. Sharp says he earns only $12,000 per year, but there was evidence indicating that during the five years prior to the date of the judgment his average earnings were $27,000. Mrs. Sharp is now employed and earns approximately $380 per month. KRS 403.200 fixes the standards which guide the courts in fixing the amount of maintenance. We conclude that the findings of the trial court were not clearly erroneous, if erroneous at all, thereforewe will not disturb the maintenance award. CR 52.01; Bentley v. Bentley, Ky., 500 S.W.2d 411 (1973); Clay, Kentucky Practice, 3rd Ed., Vol. 7, p. 161, Comment 8.

 

 

KY     Low v. Low, 777 S.W.2d 936 (Ky. 10/19/1989)
On appeal, the judgment of the trial court was reversed. Accurately characterizing the original maintenance order as a “lump sum award” and relying on our decision in Dame, the Court of Appeals held that modification was not permissible.
By virtue of the provisions of KRS 403.200, maintenance may not be awarded until account has first been taken of the assignment and division of property. Hollon v. Hollon Ky., 623 S.W.2d 898 (1981). Under the statute, the exact terms of the maintenance award depend, inter alia, upon the decision of the court as to the ownership of property. KRS 403.200(2). Upon a determination that the spouse seeking maintenance qualifies for such an award under KRS 403.200(1), the determination of amount and duration is governed by section (2) of the statute which requires consideration of all the financial resources of the parties. Roberts v. Roberts, Ky.App., 744 S.W.2d 433 (1988). Thus, any award of maintenance being wholly dependent upon the value of property received by the spouse seeking maintenance, it necessarily follows that a proper award is impossible unless the trial court can be reasonably assured that its determination of property ownership will be realized.
In Dame v. Dame, supra, this Court construed KRS 403.250, a statute relating to modification of maintenance, etc., without any reference to division of property. There was no contention that the spouse seeking an extension of maintenance did not realize all benefits awarded in the original decree. The sole question presented was whether the circuit court could modify the lump sum maintenance award based on a change of circumstances. Relying substantially on the beneficial aspects of finality of litigation and certainty of obligation, we distinguished lump sum awards from open-end awards and held that maintenance awards payable in a lump sum could not be modified by simply showing “changed circumstances.” On the facts presented in Dame, the result was reached was proper.
                       

KY     Cochran v. Cochran, 746 S.W.2d 568 (Ky.App. 03/11/1988)
Appellant contends that the trial court did not allow him an opportunity to present evidence on the issue of maintenance. We disagree. The trial court allowed both parties to complete taking of proof within thirty days. Appellee did so, and appellant’s failure to do so was not the court’s error.
We affirm the trial court’s finding pursuant to the maintenance statute, KRS 403.200 — albeit not worded identically as the statute — that appellee has insufficient property to provide for her reasonable needs. However, we remand the issue of maintenance to the trial court for it to reconsider whether maintenance should be awarded after making a finding on the question of appellee’s ability to support herself through appropriate employment under KRS 403.200(1)(b). The court failed to make this statutorily required finding. The court shall decide after hearing all relevant evidence whether the property of the appellee and her ability to support herself, taken together, properly call for an award of maintenance. We understand that appellee’s ability to generate income is presently limited; however, we also know that she has not been burdened with the responsibility for payment of virtually any debts. Should the trial court then conclude that an award of maintenance is still appropriate, it shall reconsider the amount of maintenance according to KRS 403.200(2).
 
 

KY     Calloway v. Calloway, 832 S.W.2d 890 (Ky.App. 06/12/1992)
 The awarding of maintenance under KRS 403.200 is a matter within the discretion of the trial court. Clark v. Clark, Ky.App., 782 S.W.2d 56 (1990). The record indicates that Mrs. Calloway does not have an advanced education, has been a homemaker for the duration of the eighteen-year marriage, and suffers from a degenerative disease which limits or precludes her ability to work outside the home. Though she will receive a portion of the marital assets, the lower court did not err in concluding that she is currently unable to provide for her reasonable needs and the needs of the couple’s unemancipated minor. We will not disturb an award of maintenance unless it is clearly erroneous. Platt v. Platt, Ky.App., 728 S.W.2d 542 (1987); Moss v. Moss, Ky.App., 639 S.W.2d 370 (1982). Mr. Calloway further argues that the maintenance award should be reduced or eliminated because Mrs. Calloway may be eligible for approximately $300.00 per month in SSI disability benefits. We do not find this argument to be compelling. It appears that any SSI disability benefits payable to Mrs. Calloway would be reduced dollar for dollar against the maintenance award, effectively eliminating the benefits. Should Mrs. Calloway’s ability to provide for her reasonable needs improve, KRS 403.250 and the civil rules provide for mechanisms by which the maintenance award can be reduced or eliminated. In any event, in the absence of clear abuse of discretion, we must maintain confidence in the decision of the trial court. Clark at 60.
 Finally, Mr. Calloway argues that arrearage arising out of a prior temporary restraining order should have been modified retroactively by the lower court because the temporary award was excessive. Under normal circumstances, the review of a temporary maintenance order is interlocutory in nature and not reviewable. Lebus v. Lebus, Ky., 382 S.W.2d 873 (1964). In the instant case, however, the amount of the arrearage became reviewable when it was incorporated in the lower court’s dissolution decree, which is final and reviewable. KRS 22A.020. We find nothing in the record, however, to indicate that the amount of the temporary maintenance arrearage as calculated by the lower court was inaccurate, or that the amount of the temporary award was unreasonable.
 
 

KY     Combs v. Combs, 622 S.W.2d 679 (Ky.App. 09/04/1981)
The husband is 58 years of age, apparently in good health, and is vice president of East Kentucky Power Cooperative. The evidence discloses that, for the period of 1973 to 1976, the husband’s wages were from $20,000 to $30,000 per year, while the wages of the wife ranged between $2,800 and $9,000 in that period. In 1977, the husband’s wages rose to $46,000, and in 1978 to $47,100. This sudden raise was due to a change in the deferred payment plan. The husband further testified that he would get a 9% raise in 1979, the year prior to the maintenance award, and a cost of living raise in the ensuing years. For 1979, his salary would have been $51,339.
 The judgment herein awarded the wife the magnanimous sum of $250 per month for a period of three years as maintenance, although adopting a Commissioner’s finding that the wife did not meet the requirements of KRS 403.200 to “support continuing maintenance.” We feel that the evidence herein fully supports continuing maintenance for the wife and that the award of $250 per month was grossly inadequate. As Commissioner Gardner wrote for the court in Walden v. Walden, Ky., 486 S.W.2d 57, 59 (1972), “At first blush we are impressed with the inadequacy…” We will go on to say that at second blush, if such there be, we are impressed with the disparity between the positions in which the parties are placed as a result of this judgment. The husband will have an income of a minimum of $48,339 and the wife an income of $14,400. Her maintenance will be over $1,200 less than his cost of living increase.
We are aware that the fixing of maintenance is within the discretion of the trial court. See KRS 403.200(2), and Browning v. Browning, Ky.app., 551 S.W.2d 823 (1979). However, it is equally clear that the award may be reversed when, as here, there is a clear abuse of that discretion. The disparity in financial position alone, under the circumstances of this 30-year marriage and the working of the wife, indicates an abuse of discretion.The elements contained in KRS 403.200(2), such as financial resources of the wife, standard of living established, duration of the marriage and ability of the husband, who got along well on $30,000 per year and now makes $51,000, to meet his own needs while meeting those of his wife, all point out the abuse.
The mere fact that the wife can eke out a living is not sufficient to deny maintenance. As Justice Palmore stated in Casper v. Casper, Ky., 510 S.W.2d 253, 255 (1974): “The statute, as did the law before, simply recognized that what might have been ample for a scullery maid is not necessarily sufficient for one accustomed to the lifestyle of a duchess…” The court in Casper went on to say that the law did not intend “The anomaly that one who cannot work at all may have… a better standard of living than one who is able to eke out the bare necessities of life.” The antithesis of this was apparently the position urged by the cross-appellant herein and, to some extent, adopted by the lower court and its commissioner.
Nor can we condone the award of maintenance for a mere three years. The duration of maintenance must have a direct relationship to two factors: (1) the period over which the need exists, and (2) the ability to pay. Here there is no showing that the needs of the wife will be materially different after three years or that she will be more self-sufficient or even has the potential to become so. It is pointed out herein that she will be able to secure a Master’s Degree, but the raise in pay attendant to that degree is seldom of such import as to materially affect her standard of living. We start with the presumption of maintenance for life or until remarriage. This may be rebutted, of course, but was not rebutted herein. See Frost v. Frost, Ky.App., 581 S.W.2d 582, 584 (1979).
 

KY     Richie v. Richie, 596 S.W.2d 32 (Ky.App. 03/07/1980)
Regarding the maintenance, specific statutory authority exists in enabling the trier of fact to determine the amount and circumstances under which maintenance is appropriate. KRS 403.200 et seq. The trier of fact must look to the amount of marital property awarded to the spouse seeking maintenance, and the spouse’s ability to support herself through appropriate employment. A spouse’s ability to seek appropriate employment may be affected by the demands of an infant child, or a child who needs constant care or supervision. KRS 403.200(1)(a), (b). Here, the record indicates that the appellee has not worked outside her home since the birth of her infant daughter in 1973. At the time of this action, the appellee was earning approximately $50.00 per week by baby-sitting in her home. Both parties concede that the appellant and appellee have similar educational backgrounds although the appellee lacks specific job training and experience. The appellee testified that she did not desire to work outside her home so that she could care for her infant daughter. Nevertheless, appellant argues that under the language of KRS 403.200, this is insufficient to allow an open-ended award.
He cites the language in Casper v. Casper, Ky., 510 S.W.2d 253 (1974), to argue that the trial court failed to consider the statute in allowing an open-ended award. With this we agree. In light of the evidence, we do not believe an open-ended award is justified. We believe the appellee can, with necessary training, work outside her home and still care for her daughter, especially as her daughter will have entered first grade by this time. Therefore, we direct the trial court to make further findings of fact as to when the appellee can begin work outside her home. The trial court is to specify in its findings of fact how long the award of maintenance should continue.                  
 
 

KY     Newman v. Newman, 597 S.W.2d 137 (Ky. 02/12/1980)
In the fixing of maintenance the trial court must take into consideration the assignment of property made pursuant to the provisions of KRS 403.190 and the factors delineated in KRS 403.200. As a matter of fact, there must be a division of property before considering the amount of maintenance. Farmer v. Farmer, Ky., 506 S.W.2d 109 (1974).
                          

KY     Garrett v. Garrett, 766 S.W.2d 634 (Ky.App. 03/17/1989)
Lastly, Gaither argues the award of maintenance was improper. The trial court did not explain in its findings how Gaither, who cannot work and who has a fixed income insufficient for his own needs, would be able to pay maintenance to Margaret. KRS 403.200(2)(f). As the court will, upon remand, be required to make a different disposition of the property, it should re-examine the issue of maintenance, considering the financial situation of each party and the evidence as it relates to all the factors in KRS 403.200(2)(a)-(f).
 
 
KY     Robinette v. Robinette, 736 S.W.2d 351 (Ky.App. 07/24/1987)
We believe the concept of dissipation, that is, spending funds for a nonmarital purpose, is an appropriate one for the court to consider when the property is expended (1) during a period when there is a separation or dissolution impending, and (2) where there is a clear showing of intent to deprive one’s spouse of his or her proportionate share of the marital property. Id., p. 115; see also Culver v. Culver, Ky. App., 572 S.W.2d 617 (1978).
 
 
KY     James v. James, 618 S.W.2d 187 (Ky.App. 07/03/1981)
On this appeal, the appellant first contends that the trial court abused its discretion in reserving the question of future maintenance and medical expenses. He argues that K.R.S. 403.200 does not permit a court to reserve the question depending on future events. We disagree because as we read the statute, it allows the trial court to provide for probable changes in either party’s ability to be self-supporting. Our statute, which was modeled on the Uniform Marriage and Divorce Act (U.M.D.A.) authorizes an award of maintenance upon a dual finding that the spouse seeking it (a) lacks sufficient property to provide for his reasonable needs and (b) is unable to support himself through appropriate employment. K.R.S. 403.200(1). The next subsection of the statute addresses the amount and duration of the maintenance award. It directs that a maintenance order be for such period of time as the court deems just, after considering all relevant factors including the duration of the marriage and the physical condition of the spouse seeking maintenance. K.R.S. 403.200(2). The record on appeal contains evidence that the appellee’s earnings from the store were nominal. In addition, she had a history of cancer. Apparently the trial court reasoned that although she was not currently in need of periodic support, her present condition was unstable and adjustments should not be foreclosed. The statute expressly places decisions on the amount and duration of maintenance within the discretion of the trial court, and we think that discretion was well exercised here.
Although Kentucky courts have not addressed this issue, courts in other jurisdictions under the U.M.D.A. have held that when a spouse may not be able to support herself on a permanent basis due to the effects of an existing injury, reservation of the issue of maintenance for subsequent determination or award of nominal maintenance subject to subsequent review is permissible under the statute. Davis v. Davis, 35 Colo.App. 447, 534 P.2d 809 (1975).
 
 

KY     John v. John, 893 S.W.2d 373 (Ky.App. 01/13/1995)
In his appeal, Maurice continues to argue that his obligation to pay maintenance to Sandra was terminated as a matter of law upon her remarriage. This argument is totally without merit.KRS 403.250(2), upon which Maurice relies, provides:
 Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance. (Emphasis added).
 As the trial court found, the parties “agreed in writing.” The terms of this writing called for Maurice to pay Sandra “the total sum of $1,320,000” in installment payments over ten years. The only condition expressed in the parties’ written and executed agreement that would excuse payment byMaurice was Sandra’s death.The parties did not mention in their agreement the possibility of Sandra’s remarriage and the document does not provide that or any other contingency as having any impact on the appellant’s obligation to pay Sandra $1,320,000.
 Maurice criticizes the trial court for relying on Dame v. Dame, (supra) . However, we believe the Dame case is controlling in this circumstance. Dame unequivocally holds, noting the purposes of KRS 403.110 and particularly the need for finality between divorcing parties, that lump-sum maintenance awards, paid in one installment or many installments, are not subject to modification. 628 S.W.2d 625. Counsel for Maurice argued before the trial court that the maintenance at issue was not lump-sum maintenance but periodic maintenance. Nevertheless, the agreement specifically provides that Maurice will pay “the total sum of $1,320,000” in monthly payments of $8,333.33 for two years and then $11,666.67 for eight years. Clearly, Maurice agreed to pay a lump sum and this sum is not modifiable. Id. In an attempt to avoid the Dame decision, Maurice also argued before the trial court that he was not seeking to “modify” the maintenance agreement but simply desired to “terminate” it. The lack of logic in that argument is obvious.
 
 

KY     Perrine v. Christine, 833 S.W.2d 825 (Ky. 05/15/1992)
The trial court need only decide whether the party seeking maintenance has available sufficient resources to meet the conditions of KRS 403.200. Here, that decision was made responsibly, and on the basis of findings of fact which were not clearly erroneous. The fact that a reviewing Judge might have decided the issue differently had he/she occupied the trial bench is not a sufficient basis for concluding that the trial court abused its discretion.       
 
 
Note: Dan Jack Combs was a KY Supreme Court Justice
 
KY     Combs v. Combs, 787 S.W.2d 260 (Ky. 02/08/1990)
There is something distasteful in requiring one to subsidize a former spouse, in his or her subsequent cohabitation. . .
 We believe 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). There is ample evidence in the case at bar to support the trial court’s conclusion that the respondent’s cohabitation did constitute a substantial new resource for her since the Court’s previous decree of November 5, 1978. As an appellate court, neither the Court of Appeals nor this Court is authorized to substitute its own judgment for that of the trial court on the weight of the evidence, where the trial court’s decision is supported by substantial evidence. Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986). The trial court in the present case properly considered respondent’s cohabitation as a factor in determining that Movant’s maintenance obligation should be suspended.
 We recognize that not every instance of cohabitation constitutes a change in circumstances making continued maintenance “unconscionable.” We do not intend by this opinion to open the floodgates to motions to terminate or suspend maintenance payments in every situation in which the maintenance recipient has begun dating, or has formed casual relationships with persons of the opposite sex. While each case stands on its own, the elements to consider are:
 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 benefit 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 arrangement? 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 intend the relationship to continue indefinitely?
 The trial court exercised equitable discretion in reducing maintenance payments to zero instead of terminating the obligation altogether. This decision was probably predicated upon an assumption that termination of maintenance payments ended the matter permanently. However, we hold that trial courts which, in the future, reduce or terminate maintenance under KRS 403.250(1) as a result of a maintenance recipient spouse’s cohabitation, retain jurisdiction over the issue to make subsequent modifications if a substantial change occurs in the cohabitation relationship.
 The payor spouse’s financial circumstances do not play any role in our consideration. This opinion is directed only to the issue of what effect a maintenance recipient’s cohabitation has on continued maintenance. Therefore, the question of whether the Movant’s financial circumstances have changed, and all of the implications of the CR 60.02 motion as raised post-decree and on appeal, are moot. Our decision is based on KRS 403.250(1), not KRS 403.250(2). If the legislature wants to make a policy decision to automatically terminate maintenance upon a recipient’s cohabitation, then it should amend KRS 403.250(2) to add cohabitation as a grounds for automatic termination.
 A collateral issue raised on this appeal is whether the Movant was justified in unilaterally terminating monthly maintenance payments in the amount of $500.00, as of the filing of his Motion on February 20, 1985. We find he was not. We hold that maintenance payments are vested from the entry of a decree and ordinarily can be modified only upon the entry of a subsequent order of the Court to operate prospectively, from the date of entry. The Movant owes the arrearage, plus 12% interest until the entry of the Order of September 23, 1986, suspending maintenance.
 We hereby reverse the judgment of the Court of Appeals and remand to the Pike Circuit Court for entry of judgment in accordance with this opinion.
 
 

KY     Clark v. Clark, 782 S.W.2d 56 (Ky.App. 01/05/1990)
Appellant argues that the trial court abused its discretion by punishing him. Specifically, he believes the length and the amount of the payments indicate this intent. The trial court correctly considered the parties’ positions in this case and the award of maintenance was fair considering the circumstances. KRS 403.200(1) addresses maintenance. It follows the provisions of the Uniform Act and encourages rehabilitative maintenance to enable a spouse long absent from the workplace to acquire self-supporting skills. Graham and Keller, supra, at 343. Kentucky courts however have ruled differently in situations where the marriage was long term, the dependent spouse is near retirement age, the discrepancy in incomes is great, or the prospects for self-sufficiency appears dismal. Graham and Keller, supra, at 344.
 The court here correctly considered several of these factors. One of the specific factors the court should consider is whether the spouse is unable to support herself through appropriate employment according to the standard of living established during the marriage. Casper v. Casper, Ky., 510 S.W.2d 253 (1974); Newman v. Newman, Ky., 597 S.W.2d 137 (1980). It is especially acceptable for the trial court to consider the impact of the divorce on the nonprofessional’s standard of living and award an appropriate amount that the professional spouse can afford. McGowan v. McGowan, Ky. App., 663 S.W.2d 219 (1983). Finally, the trial court should not automatically grant a monetary award simply because one spouse contributed to the other spouse obtaining a professional degree, but these efforts should be considered and compensated especially if the spouses’ incomes or salaries are uneven. McGowan, supra.
 In this case, the trial court correctly considered the appropriate factors in awarding maintenance. Appellee was not currently working at the time of the dissolution because she was taking care of the couple’s young daughter. The marriage had lasted close to twenty years. During the marriage, both parties had come to enjoy a very comfortable standard of living. Appellee was trained as a teacher. The evidence indicates that there were no teaching positions available in the Paducah area in her field. Even if there were such teaching positions, the income would not anywhere near meet her needs or allow her to continue to enjoy the same standard of living. Considering these and other factors, the trial court’s award was justified by the evidence. Such decrees are not modifiable as set out in KRS 403.250(1) and interpreted by Dame v. Dame, Ky. 628 S.W.2d 625 (1982).
 Appellant repeatedly asserts that the trial court considered fault in making this determination. This Court in Platt v. Platt, Ky. App., 728 S.W.2d 542 (1987), ruled that fault should not be considered in awarding maintenance in situations like the one currently before this Court. There is no indication that the trial court specifically used fault as a factor in awarding maintenance. The trial court did consider the present situations and economic standing of both parties, however the court specifically noted that it was not considering fault.
 

 

KY     Ogle v. Ogle, 681 S.W.2d 921 (Ky.App. 12/28/1984)

During the pendency of that appeal, the appellant returned to Jefferson Circuit Court where, on March 24, 1983, he filed a motion for modification of maintenance and child support under KRS 403.250(1). Specifically, the appellant requested the complete termination of maintenance and the reduction of child support from $1,000 to $300 per month based upon serious business setbacks which had resulted in a substantial reduction of his income. The appellee, Diane Ogle, resisted the attempt at modification by means of a motion for dismissal grounded upon Penrod, supra at 527 in which our then Court of Appeals reaffirmed the general rule that “. . . after an appeal has been perfected the trial court may not change or modify the judgment forming the basis of the appeal.”
She argues that the rule of Penrod effectively deprived the Jefferson Circuit Court of jurisdiction over the motion for modification as any action regarding that request would certainly affect the original judgment granting child support and maintenance which was the subject of the appeal pending before this Court. The Jefferson Circuit Court agreed and dismissed the appellant’s motion for modification. He seeks review of that order by this Court.
Upon a consideration of Penrod, the nature of KRS 403.250 proceedings, and guidance afforded by precedents from other jurisdictions, we have concluded that Penrod is not to be read so broadly. While we do not dispute the appellee’s assertion that Penrod stands for the proposition that a trial court is without jurisdiction to take any action that would change or modify a judgment which is the basis of a pending appeal, we must note that that case is equally important for the exception which it carves out from that rule.
In Penrod the Court recognized the authority of a trial court to enter orders enforcing an award of maintenance or an order fixing maintenance pending appeal when the original maintenance award was the subject of a pending appeal. In so doing the court stated that “. . . a trial court has continuing jurisdiction to enter supplementary and ancillary post-judgment orders. . .” (emphasis added). Id. at 527.
A motion for modification of maintenance and child support made pursuant to KRS 403.250(1) is such an “ancillary, post-judgment” proceeding over which a trial court may exercise jurisdiction during the pendency of the initial award. Although we can cite no Kentucky authority supportive of this proposition, an examination of the relevant statutes contained in KRS Chapter 403 indicates the soundness of our conclusion.
KRS 403.200, the statute authorizing the award of maintenance in the context of dissolution proceedings, focuses upon the relative financial resources and needs of each spouse. Likewise, KRS 403.210 for purposes of awarding child support directs a similar comparison of the needs of the child in light of each parents’ respective economic means. Conversely KRS 403.250(1), which sets forth the grounds for a modification of maintenance and child support, directs the circuit court to make an entirely different inquiry. Beginning with the assumption that the award of support and maintenance was proper when initially made, KRS 403.250(1) looks to whether there has been a substantial and continuing change in the conditions that underlay that decree so as to render its continued enforcement unconscionable. By its very terms, a motion for modification under KRS 403.250(1) can concern only those developments that occur subsequent to the original award of support and maintenance and are therefore not subject to review should an appeal be taken from that original judgment.
Furthermore, we would note that KRS 403.250(1) contains no limitation upon the time during which a motion for modification can be made; rather such actions would appear to be proper at any time so long as there has been a sufficiently substantial change of circumstances to justify a change. As a result of these fundamental differences, we believe that a motion for modification of child support and maintenance falls within the scope of the “ancillary, post-judgment” proceedings exception described in Penrod, over which a trial court may exercise jurisdiction even during the pendency of an appeal of the original award. See also, In Re Marriage of Petramale, 430 N.E.2d 569 (Ill. App. 1981); Giamanco v. Giamanco 444 N.E.2d 1090 (Ill. App. 1982); Martin v. Martin, 623 P.2d 527 (Kan. App. 1981).
As a final comment, we observe that in determining that the pendency of an appeal of an award of maintenance and child support does not deprive a trial court of jurisdiction over a motion for modification for that judgment pursuant to KRS 403.250(1), it is not our intention to create a new means of attacking such a judgment in addition to that of appellate review. To merit relief under KRS 403.250(1), a showing of a substantial and continuing change in condition is still incumbent upon the moving party and a circuit court may still summarily dispose of motions for modification which are insufficiently grounded on such exigent circumstances. Should it appear that the motion for modification is not so founded, but is merely an additional attack on maintenance and child support as originally granted, the trial court in its sound discretion may properly refuse to exercise jurisdiction during the pendency of an appeal of that same question.
 

KY     Clark v. Clark, 601 S.W.2d 614 (Ky.App. 06/27/1980)

The language of KRS 403.250 is clear and unambiguous. The death of the obligor is a statutory contingency the occurrence of which terminates the obligation to pay future maintenance unless the decree expressly provides that the occurrence of said contingency does not terminate the obligation. When no ambiguity exists a statute is to be interpreted according to the intent of the authors which intent is gleaned from what the authors actually said, not what they may have intended to but did not say. Reynolds Metal Co. v. Glass, Id. Virginia would have us write a new statute stating that the obligation to pay maintenance terminates upon the death of the obligor if and only if there is no provision in the decree concerning the duration of maintenance. This is not, however, what the plain language of the statute says. We will not strain to find an ambiguity where none exists in order to redraft a statute to conform to what might have been the intent of the legislature.

 

KY     Inman v. Inman, 578 S.W.2d 266 (Ky.App. 02/23/1979)
This court has strong reservations about placing a professional license in the category of marital property. Doing so can only create another field for battle in the already complex and delicate area of division of marital property. In spite of these reservations, however, we feel that there are certain instances in which treating a professional license as marital property is the only way in which a court can achieve an equitable result.
     To flatly refuse to find any sort of protected property interest would work the grossest inequity in certain instances. The apparently rather common situation in which one spouse puts the other through graduate or professional school, followed closely by a dissolution upon the completion of the schooling, allows perhaps the clearest exposition of the problems involved. In those instances it is usually the case that little or no marital property has been accumulated. In such instances there is generally no entitlement to maintenance as each spouse is self-supporting. Thus the spouse who has devoted much of the product of several years of labor to an “investment” in future family prosperity is barred from any return on his or her investment. The other spouse has received a windfall of contribution to his or her increased earning capacity. Had he not had a spouse’s support, he might well have been compelled to prolong or delay his professional education while earning enough to support himself and meet education costs, or to go deeply into debt.
     On the other hand, different considerations may apply when a sizeable marital estate is built up over the course of a long marriage. In such instances, it might be inequitable to award to a spouse who contributed to the other spouse’s earning capacity years prior a “property” interest in the other’s professional degree in addition to considerable property which is in substantial part the fruit of the increased earning capacity. Such a division of property could amount to awarding an interest far out of proportion to any reasonable apportionment of interest in the degree.
     The clearest exposition of the two leading schools of thought on whether sufficient indicia of “property” can be attributed to an educational degree to make it partitionable under the Uniform Dissolution of Marriage Act may be found in the recent Colorado case, In re Marriage of Graham, Colo; 574 P.2d 75 (1978), heard by the state Supreme Court en banc.
 
 
KY     Gaines v. Gaines, 566 S.W.2d 814 (Ky.App. 05/26/1978)
Remaining for our consideration are the issues of jurisdiction of the court to terminate any maintenance appellant might have been entitled to and to distribute the chattels of the parties.
 Both KRS 403.190(1) concerning disposition of property and KRS 403.200(1) dealing with maintenance recognize separate actions for both subsequent to a dissolution action where one spouse was not subject to the jurisdiction of the court at the time of the original divorce proceedings.
This recognition carries with it the strong implication that when neither the spouse nor the property are before the court, then no disposition can be made, but when the chattles are within the court’s jurisdiction, then it can make appropriate orders dispositive thereof.
On the other hand, the court cannot enter an in personam order directed to an absent litigant to do some act with reference to personalty which is either within or without the state. Our views find support in Restatement (Second) of Conflict of Laws § 60 (1971) to the effect:
A state has power to exercise judicial jurisdiction to affect interests in a chattel in the state, which is not in the course of transit in interstate or foreign commerce, although a person owning or claiming an interest in the chattel is not personally subject to the judicial jurisdiction of the state.
Moreover, at § 77(2) of the same Restatement, we note that:
A state may not exercise judicial jurisdiction to absolve one spouse from any duty of support he may owe the other spouse in the absence of personal jurisdiction over the other spouse.
[48]    Based upon these principles, we must reverse so much of the judgment as denies Amanda maintenance and makes disposition of any chattels not within the jurisdiction of the court or orders appellant to return such personalty. On the other hand, we affirm that portion of the trial court’s judgment distributing those items of personal property that had their situs in this Commonwealth.

KY     Beckner v. Beckner, 903 S.W.2d 528 (Ky.App. 06/25/1995)
Kimberly argues that the trial court erred in refusing to award her any sum of maintenance. She contends that she cannot possibly maintain herself or the children in any semblance of the life style enjoyed during the marriage, modest though it was, having received as property a car, furniture and liquid assets of less than $2,000. Terry’s standard of living will arguably improve as he earns over $3,800 per month and his child support obligation is less than $800 per month. *fn2 On the other hand, at the time of dissolution, Kimberly had not been employed for several years. She did not seek maintenance for her lifetime but for a period of time to allow her to complete the course work necessary to obtain a teaching certificate.
 The determination of whether to award maintenance is highly discretionary with the trial court after its consideration of the dictates of KRS 403.200. Browning v. Browning, Ky. App., 551 S.W.2d 823 (1977). We do not hesitate to conclude that the trial court abused that discretion in this instance. While it is true that Kimberly is young, in good health and has some education, it is equally true that she had no job at the time of the dissolution, a scanty employment history during the marriage, no marketable skills of any significance and virtually no liquid assets.
  Terry argues the denial of maintenance should be affirmed because Kimberly neglected to demonstrate a need for maintenance, that with her education she should be able to support herself, and that the parties “had a very modest standard of living.” We disagree that the evidence of record failed to disclose a need on Kimberly’s part for maintenance. “Modest” though their standard of living was, Kimberly is not presently able to support herself in any manner approaching that enjoyed during the marriage. Terry’s argument that she was awarded sufficient property to meet her needs is ludicrous.
 As to her ability to support herself, the appellant postponed developing any career during the latter years of the marriage to prioritize the needs of the children. The trial court’s findings indicate that she has taken some courses toward obtaining a teaching certificate, but the evidence is that she still needs further instruction to be certified in her field. Terry’s career, on the other hand, was not hampered by domestic concerns.
Under these circumstances, we hold the trial court erred in failing to award Kimberly a sum sufficient to sustain herself while completing her degree. Moss v. Moss, Ky. App., 639 S.W.2d 370 (1982); Wood v. Wood, Ky. App., 720 S.W.2d 934 (1986); Dotson v. Dotson, Ky., 864 S.W.2d 900 (1993).
 
 

KY     Leitsch v. Leitsch, 839 S.W.2d 287 (Ky.App. 10/16/1992)
Despite the overwhelming disparity between the parties’ financial situation and physical condition, the trial court agreed with Sharon’s assessment of their respective situations. In denying William any maintenance, the court found that his necessary living expenses, including mortgage payment and attendant care due to his muscular dystrophy” to be within his income of $1,301. The court, in so finding, reasoned that the $104 in William’s budget for contribution to his church and the $78 for life insurance were not necessary expenses. The court also relied on the fact that William “receives a variety of assistance from friends, relatives and neighbors.”
   In his appeal William asserts the trial court abused its discretion. We agree that the failure to award William a sum sufficient to allow him to meet his needs without requiring that he depend on the generosity of family and friends was plainly an abuse of discretion. It has long been the law in this jurisdiction that the test to determine entitlement to maintenance set out in KRS 403.200(1) is not absolute but must be applied against the standard of living established during the marriage. Combs v. Combs, Ky. App., 622 S.W.2d 679 (1981); Casper v. Casper, Ky., 510 S.W.2d 253 (1974); McGowan v. McGowan, Ky. App., 663 S.W.2d 219 (1983); and Atwood v. Atwood, Ky. App., 643 S.W.2d 263 (1982).
     The evidence in this record established that, while the parties did not build up a large marital estate, they did earn sufficient sums to finish college, to allow Sharon to attend graduate school for five years and to lead a comfortable life. They were able to afford a house, furnish the house, and to make improvement to the house to accommodate William’s special needs. More importantly, the parties maintained a standard of living that allowed William to maintain his dignity despite his deteriorating and disabling physical condition.
     The record discloses that since the dissolution William is barely getting by and is doing so only because of the charity of others. Even if one subtracts from William’s budget items enjoyed during the marriage such as his life insurance premiums, newspapers and cable television, William’s expenses for the basics, that is, housing, utilities, food, clothing and attendant care, exceed his fixed income. William was not awarded income producing property nor any liquid assets to speak of. The court’s finding that he can provide for his reasonable needs is thus erroneous as a matter of law and fact.
    Sharon admits that William cannot work and she does not seriously contend that his income and property are adequate to meet his needs. She defends the trial court’s ruling with the argument that if one subtracts from William’s monthly expenses the cost of maintaining the debt on the house (roughly $511) which he asked to be awarded, the remainder of his monthly expenses fall within his $1,300 income. William asked for the house as it was equipped to meet his physical needs. His testimony that he could not rent an apartment adequate to accommodate his condition for less money than his house payment was not challenged by Sharon. That he asked to be awarded the house and agreed to take responsibility for the mortgage did not, as Sharon implies, constitute a waiver of his claim for maintenance.
     It is not insignificant, we believe, that the parties knew at the outset of the marriage that William had a limited number of years to work, that his future was uncertain and that his condition would progress to deprive him of the ability to be self-supporting. The effect of the trial court’s denial of maintenance is not merely to reduce William’s standard of living while increasing that of Sharon, but is to reduce William to one dependent on the charity of others, in short, a burden on society.
     The statutory scheme is designed to allow one to become self-supporting, e.g., Moss v. Moss, Ky. App., 639 S.W.2d 370 (1982). While the trend is to sever all ties between divorcing parties, see R. Petrilli, Kentucky Family Law, § 25.11 (1988), where one is unable due to health problems to be self-supporting, the statute is appropriately utilized to prevent the “drastic change” in the standard of living experienced by William. Atwood v. Atwood, supra, 643 S.W.2d at 266, and James v. James, Ky. App., 618 S.W.2d 187 (1981). This case has many similarities to the situation in the Atwood case. Like the appellant in Atwood, William was left “holding the marital bag” while Sharon has a “well-paying job” and a new spouse to share her financial needs. As William points out, Sharon’s graduate degrees were obtained with marital funds to prepare her for the day when she would be the primary supporter of the household. As we said in Atwood, “the unfairness of this situation is evident.” Id.
     In her cross-appeal Sharon makes the meritless argument that William’s request for maintenance was not properly raised and preserved. William clearly testified at the first hearing, without objection, that he had no choice but to ask for support. The decree specifically reserved the issue. The trial court’s ruling that the issue was properly preserved is not erroneous. See CR 15.02; Thomas v. Thomas, Ky., 379 S.W.2d 743 (1964); and James v. James, supra.
 
 
 

KY     Drake v. Drake, 809 S.W.2d 710 (Ky.App. 01/25/1991)
Barbara next contends that the trial court awarded her an insufficient amount as maintenance.
Barbara desires a maintenance award of $5000 a month. This figure comes from Lewis’s testimony about how much he would receive in disability insurance should he become disabled.
Barbara also seeks a further award of $691.50 for a premium payment for a life insurance policy on Lewis’s life.
In 1987, Lewis earned about $164,000. The maintenance payments to Barbara are $30,000. In addition, Barbara has some teacher’s retirement and was awarded about $30,000 in marital cash and the marital home. Barbara’s position will improve somewhat on remand because of our holding on the valuation of the practice. Barbara claims that she has been unable to secure employment, other than infrequent substitute teaching.
Barbara relies much upon Lovett v. Lovett, Ky., 688 S.W.2d 329 (1985). Lovett, supra, is similar factually to the case at bar. For example, the husband was a physician and the wife had a teacher’s certificate. The wife in Lovett, supra, was awarded maintenance of $1,750 per month for 10 years. The trial court stated that the higher maintenance was justified in the case at bar because (1) the duration of marriage was longer than in Lovett, supra, (2) the spouse seeking maintenance was older, and (3) the spouse paying maintenance had a greater income.
The question of maintenance is a matter of discretion and will not be disturbed absent abuse. Clark, supra; Lovett, supra. It is difficult for us to see how the trial court abused its discretion. Lovett, supra, is really of no help to Barbara, particularly since she received a greater amount of maintenance. If Barbara desires to obtain insurance on Lewis’s life, she has adequate funds to do so.
Lewis asserts in his cross-appeal that the maintenance award is too large and is too long in duration.
Lewis neglects to mention the fact that the maintenance is deductible from his federal tax. See Clark, supra. It is true that Barbara already has sufficient training for employment. But we have already mentioned Barbara’s difficulties in obtaining employment. If Barbara was able to secure full-time employment, it is very doubtful her income would approach that of Lewis’s during the later years of their marriage. The standard of living established during the marriage is a factor to be considered in awarding maintenance. KRS 403.200(2)(c). We reiterate that the trial court did not abuse its discretion on the maintenance question.
 
 
 

KY     Sayre v. Sayre, 675 S.W.2d 647 (Ky.App. 07/06/1984)
The amount of $10,000, which is theoretically available for maintenance consideration, is subordinate to the express command of K.R.S. 403.200(2), which states, “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 . . . .” (Emphasis added.) However, the balancing calculations set forth in Atwood are clearly subject to the trial court’s discretion. The determinative factor in the present case is Elizabeth’s personal choice to remain at her lower paying job. We note that her vocation is not dangerous and there is no necessary reason for her to fail to pursue a higher paying job. Therefore, since that is a matter of purely personal choice, we do not believe that Atwood requires an award of maintenance and therefore we affirm the judgment of the circuit court as it is not clearly erroneous.
 
 
 

KY     Frost v. Frost, 581 S.W.2d 582 (Ky.App. 05/11/1979)
 We will assume, for purposes of this discussion, that at the time the temporary award of maintenance is due to expire, Marion Frost will have obtained a teacher’s certificate — that is the course of action which William appears to be vigorously urging upon her. At that time Marion may well be able to find regular and fairly well-paid employment. (Given her age and the notorious difficulty, in many parts of the country at least, of finding full-time regular employment as a teacher, our assumptions might be overly optimistic.) In any event, even according to the rosiest scenario that we can devise, Marion will have only an absolute maximum of ten (assuming employment at age 55 and retirement at age 65) to fifteen (assuming retirement at age 70) years in the work force. Retirement benefits accrued in such a short time simply cannot, under any retirement scheme that we know of, be of such magnitude as to help significantly in paying living expenses.
 Because William was covered by the Railroad Retirement Act, the couple made no contributions to the Social Security retirement system; thus Marion can look forward to no benefits accrued during the marriage.
 One-half of the equity in the couple’s home should represent a substantial lump sum, but it will be subject to capital gains tax and will not be of such magnitude as to be capable of producing enough to live on in retirement years.
 KRS 403.200(2) supra, directs trial courts, in deciding the amount and duration of a maintenance award, to consider all relevant factors, specifically including the ability of the party seeking maintenance to meet his needs independently, the duration of the marriage, and the age of the party seeking maintenance.
 We do not believe that the trial court could have fully considered those factors and still have awarded only relatively short-term temporary maintenance. It is abundantly clear that even if Marion can become temporarily economically independent, she must relapse into dependency within a relatively few years.
 We would add that we cannot approve, as a general proposition, the practice of granting maintenance for a set term of years. Such an approach may be valid when the party receiving maintenance will clearly be self-sufficient at the end of that period, but not before. Moreover, the unpredictability of the job market and of individual occupational progress make such results impossible to insure, and an absolutely limited grant of temporary maintenance does not allow either party to reopen and show changed or unexpected circumstances.
 We recognize that it would be at least as great an evil to encourage the granting of permanent or indefinite maintenance in every instance, and have no intention of encouraging such a result.
 
ANNOTATIONS REGARDING KRS 403.250
                 
KRS 403.250 Modification or termination of provisions for maintenance and property disposition.
(1) Except as otherwise provided in subsection (6) of KRS 403.180, 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. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
(2) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
Effective: July 13, 1990 History: Amended 1990 Ky. Acts ch. 418, sec. 5, effective July 13, 1990. — Created 1972 Ky. Acts ch. 182, sec.
 In his appeal, Maurice continues to argue that his obligation to pay maintenance to Sandra was terminated as a matter of law upon her remarriage. This argument is totally without merit. KRS 403.250(2), upon which Maurice relies, provides:
 Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance. (Emphasis added).
 As the trial court found, the parties “agreed in writing.” The terms of this writing called for Maurice to pay Sandra “the total sum of $1,320,000” in installment payments over ten years. The only condition expressed in the parties’ written and executed agreement that would excuse payment by Maurice was Sandra’s death. The parties did not mention in their agreement the possibility of Sandra’s remarriage and the document does not provide that or any other contingency as having any impact on the appellant’s obligation to pay Sandra $1,320,000.
 
 

KY     Brown v. Brown, 796 S.W.2d 5 (Ky. 09/27/1990)
Margaret’s counsel has insisted, and the Court of Appeals agreed, that under KRS 403.250 the parties can modify their agreement with regard to property disposition only by reopening the judgment under CR 60.02; that because Barry did not petition the court to do so “there was no modification of the Agreement.” We find nothing in KRS 403.250 to justify this result. This statute provides the method by which a party may seek court ordered modification or termination of provisions for maintenance, support and property disposition, but it nowhere specifies, expressly or implicitly, that such method is exclusive of the parties’ right to effect the same result by a voluntary, arms-length settlement if, when later contested, such a settlement is proved to the satisfaction of the trial court with reasonable certainty. We have so held in deciding on a post-judgment modification of child support in at least three cases: Ruby v. Shouse, Ky., 476 S.W.2d 823 (1972); Story v. Story, Ky., 423 S.W.2d 907 (1968); and Davis v. Davis, Ky., 431 S.W.2d 866 (1968). These three cases involved oral modification of a judgment for child support, as contrasted with the written modification in the present case where veracity is not at issue. The question in these cases, when the subsequent oral modification was challenged in subsequent court proceedings, was whether the trial court had found that “the modification had been established with reasonable certainty,” and whether “it was equitable under the circumstances.” Ruby v. Shouse, 476 S.W.2d at 825.
     Although our Court has decided no similar cases since the effective date in 1972 of the new divorce code, our so-called no fault divorce law, the Kentucky Court of Appeals has considered the matter in Whicker v. Whicker, Ky.App., 711 S.W.2d 857, 859 (1986), and reached the same decision under the new law that we reached under the pre-1972 law. Whicker considers an oral modification of an agreement for child support, and states:
     “[W]e hold that oral agreements to modify child support obligations are enforceable, so long as (1) such agreements may be proved with reasonable certainty, and (2) the court finds [when subsequently challenged] that the agreement is fair and equitable under the circumstances.”
     As Margaret’s counsel points out, Whicker notes that “parties who decline to use [prior court approval by] KRS 403.250 ‘. . . run the risk of having their private agreements declared invalid by a court when the parties attempt to have those agreements judicially enforced.'” That is because the equitable nature of divorce litigation has been preserved by the statutes relating thereto, so that such litigation, whether terminated by judgment or agreement, is opened to subsequent modification if the party seeking modification can prove the terms of the judgment or agreement are unconscionable. It is this equitable aspect of divorce litigation which is preserved by KRS 403.250.
     Margaret’s counsel argues that the rule in Ruby v. Shouse and Whicker v. Whicker does not apply to a property settlement payable in future installments, as it does to child support, because of KRS 403.180(6). This would be giving KRS 403.180(6) an opposite effect from the one intended. There is an exception to this equitable principle just stated provided for in KRS 403.180(6), but its purpose is to expand rather than to limit the parties’ ability to settle. KRS 403.180(6) states:
     “Except for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms if the separation agreement so provides. Otherwise, terms of a separation agreement are automatically modified by modification of the decree.”
     Thus, KRS 403.180(6) states that “except for terms concerning the support, custody, or visitation of children,” by expressly doing so the parties may settle their affairs with a finality beyond the reach of the court’s continuing equitable jurisdiction elsewhere provided. Since the original Agreement now under consideration made no such express provision for finality, it follows that there was no such limitation on subsequent modification. Simply stated KRS 403.180(6) has no bearing on this case.
 
 
KY     Combs v. Combs, 787 S.W.2d 260 (Ky. 02/08/1990)
 We perceive the central issue on this appeal to be whether the cohabitation of a maintenance recipient can be grounds for the reduction or termination of maintenance payments due to changed circumstances, pursuant to KRS 342.250(1) or whether such cohabitation constitutes a de facto marriage automatically terminating maintenance pursuant to KRS 403.250(2).
 KRS 403.250 provides in relevant part as follows:
 (1) . . .(T)he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and
 w2qcontinuing as to make the terms unconscionable . . .
 (2) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
 In Wilhoit v. Wilhoit, Ky., 506 S.W.2d 511 (1974), we defined “unconscionable” as used in KRS 403.250(1) to mean “manifestly unfair or inequitable.”
 The effect of a maintenance recipient’s cohabitation on continued maintenance payments has been examined by the Court of Appeals on two prior occasions. In Williams v. Williams, Ky.App., 554 S.W.2d 880 (1977), the Court found that the ex-wife’s cohabitation, coupled with the ex-husband’s diminished financial resources constituted grounds for termination for maintenance. Implicit in the Court’s decision was that the nature of the ex-wife’s cohabitation constituted a new financial resource making continued maintenance payments “unconscionable.” The decision was predicated upon KRS 403.250(1).
 In Lydic v. Lydic, Ky.App., 664 S.W.2d 941 (1984), the Court found that the ex-wife’s cohabitation did not constitute a de facto remarriage justifying automatic termination of maintenance under KRS 305.250(2). The Court suggested that its decision might be different if the cohabitating spouse had formed a “lasting relationship.”
 In the case at bar, the trial court found insufficient evidence to warrant a finding that the maintenance recipient’s cohabitation constituted a common-law marriage under Georgia law that should be recognized in Kentucky. We agree. However, the trial court also found that the maintenance recipient’s cohabitation constituted a change in condition justifying the reduction of the maintenance to zero. Evidently, the trial court wanted to maintain jurisdiction in the event there was a change in the cohabitating spouse’s relationship, and therefore did not “terminate” the maintenance obligation. The Court of Appeals ruled this was improper. We disagree.
 We are persuaded by the rationale of Judge Miller’s dissent in Lydic v. Lydic, supra, which can best be summarized by the following:
 There is something distasteful in requiring one to subsidize a former spouse, in his or her subsequent cohabitation. . .
 

KY     Roberts v. Roberts, 744 S.W.2d 433 (Ky.App. 02/05/1988)
Although we certainly do not wish to foster an atmosphere in which a long-parted spouse may move for a modification of a maintenance award simply to share the wealth with a former spouse who has fortuitously come into a large sum of money, or simply bettered his position in life through his own hard work and efforts, the spouse who is determined to be in need of maintenance has some expectation that he or she will be supported according to the standard of living established during the marriage to the extent that is possible. Casper v. Casper, Ky., 510 S.W.2d 253 (1974). Given the equitable outcome of this case, we do not believe the trial court abused its discretion in considering Mr. Roberts’ interest income from his inheritance in evaluating his ability to pay increased maintenance to Mrs. Roberts. By dividing the interest income evenly, the trial court gave Mrs. Roberts a monthly income of about $652.50, while giving Mr. Roberts a monthly income of about $754.50 and leaving the principal portion of his $60,000 inheritance untouched.
 The second issue raised by Mr. Roberts on appeal is that Mrs. Roberts failed to show changed circumstances so substantial and continuing as to make the terms of the original maintenance award unconscionable as required by KRS 403.250. Again, we disagree. While the mere showing that Mr. Roberts received an inheritance would probably not alone be enough to warrant a change in the maintenance award, the trial court’s findings that Mrs. Roberts is no longer receiving any wages from her employment as a domestic, that she is unlikely to be employed in the future due to her health, that she no longer receives social security payments for child support, and that her net monthly income is nearly $300 less than at the time of the original maintenance award, do constitute changed circumstances of a substantial and continuing nature warranting a modification of the maintenance award.
 Mrs. Roberts argues that the trial court was not constrained by the unconscionability standard set forth in KRS 403.250 since the trial court reserved the right in the decree of dissolution to review the maintenance award upon proper motion. We take this opportunity to clarify, and agree with Mr. Roberts’ assertion that KRS 403.250(1) provides the exclusive method for modification of maintenance awards unless such modification is expressly precluded or limited by the parties’ separation agreement as incorporated in the decree of dissolution.
We will also point out that the holding in Dame v. Dame, Ky., 628 S.W.2d 625 (1982), precludes modification if the maintenance award is in a fixed amount to be paid over a definite period of time. This rule was made under the rationale that the law favors finality to litigation.
We comment only that while the law may favor finality, the legislature does not in this aspect. KRS 403.250(1) plainly says that “the provisions of any decree respecting maintenance . . . may be modified . . . .” (Emphasis ours.) See also Bishir v. Bishir, Ky., 698 S.W.2d 823 (1985). Here, maintenance was established in the dissolution decree but left open for review at a later time, so the issue is still governed by the standards for modification in KRS 403.250. We believe that Mrs. Roberts made the required showing of changed circumstances.
KY     Ogle v. Ogle, 681 S.W.2d 921 (Ky.App. 12/28/1984)
A motion for modification of maintenance and child support made pursuant to KRS 403.250(1) is such an “ancillary, post-judgment” proceeding over which a trial court may exercise jurisdiction during the pendency of the initial award. Although we can cite no Kentucky authority supportive of this proposition, an examination of the relevant statutes contained in KRS Chapter 403 indicates the soundness of our conclusion.
KRS 403.200, the statute authorizing the award of maintenance in the context of dissolution proceedings, focuses upon the relative financial resources and needs of each spouse. Likewise, KRS 403.210 for purposes of awarding child support directs a similar comparison of the needs of the child in light of each parents’ respective economic means. Conversely KRS 403.250(1), which sets forth the grounds for a modification of maintenance and child support, directs the circuit court to make an entirely different inquiry. Beginning with the assumption that the award of support and maintenance was proper when initially made, KRS 403.250(1) looks to whether there has been a substantial and continuing change in the conditions that underlay that decree so as to render its continued enforcement unconscionable. By its very terms, a motion for modification under KRS 403.250(1) can concern only those developments that occur subsequent to the original award of support and maintenance and are therefore not subject to review should an appeal be taken from that original judgment.
Furthermore, we would note that KRS 403.250(1) contains no limitation upon the time during which a motion for modification can be made; rather such actions would appear to be proper at any time so long as there has been a sufficiently substantial change of circumstances to justify a change. As a result of these fundamental differences, we believe that a motion for modification of child support and maintenance falls within the scope of the “ancillary, post-judgment” proceedings exception described in Penrod, over which a trial court may exercise jurisdiction even during the pendency of an appeal of the original award. See also, In Re Marriage of Petramale, 430 N.E.2d 569 (Ill. App. 1981); Giamanco v. Giamanco 444 N.E.2d 1090 (Ill. App. 1982); Martin v. Martin, 623 P.2d 527 (Kan. App. 1981).
As a final comment, we observe that in determining that the pendency of an appeal of an award of maintenance and child support does not deprive a trial court of jurisdiction over a motion for modification for that judgment pursuant to KRS 403.250(1), it is not our intention to create a new means of attacking such a judgment in addition to that of appellate review. To merit relief under KRS 403.250(1), a showing of a substantial and continuing change in condition is still incumbent upon the moving party and a circuit court may still summarily dispose of motions for modification which are insufficiently grounded on such exigent circumstances. Should it appear that the motion for modification is not so founded, but is merely an additional attack on maintenance and child support as originally granted, the trial court in its sound discretion may properly refuse to exercise jurisdiction during the pendency of an appeal of that same question.
 
 
 
KY     Dame v. Dame, 628 S.W.2d 625 (Ky. 03/09/1982)
It is argued that this statute authorizes an amendment to or modification of an award of maintenance regardless of whether the award is open-end or is for a fixed and determinable amount or at a time prior or subsequent to the termination of the maintenance award. This issue has not been responded to by this court since the adoption of the No-Fault Divorce Act of the 1972 Session of the Kentucky General Assembly. Prior thereto this question had consistently been answered by this court as stated in Cawood v. Cawood, Ky., 329 S.W.2d 569 (1959), that, “A judgment granting lump sum alimony is not subject to modification upon a change of conditions, as is the case where alimony is payable in installments.” This court further wrote in Duff v. Duff, 275 Ky. 367, 121 S.W.2d 933 (1938), “Of course, where the judgment is for a lump sum or its equivalent, without an agreement, the judgment is final unless the case is retained under the control of the court.” In other words, an open-end award of maintenance could have been modified while an award of a fixed sum or its equivalent could not be thus modified.
 So much of KRS 403.250 as provides that “the provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable” leaves the jurisdiction of the circuit court to amend or modify an award of maintenance in confusion. Does the statute purport to apply to open-end awards only? If so, then the action of the legislature in enacting KRS 403.250 merely carried into the statute the law as it existed prior to the adoption of the statute. On the other hand, did the legislature in enacting KRS 403.250 intend to extend the jurisdiction of the circuit court so as to permit it to amend or modify a lump sum award of maintenance as well as an open-end award? To adopt this latter reasoning would then necessitate the court’s deciding the further questions of whether the jurisdiction to amend or modify must be exercised before the expiration of the period for which the initial award was made or whether the amendment or modification could be made after the period for which the initial lump sum award was ordered.
 
 
KY     Clark v. Clark, 601 S.W.2d 614 (Ky.App. 06/27/1980)
 Pursuant to the decree, Virginia received maintenance payments until Graydon’s death on January 31, 1979. Virginia timely moved the Fayette Circuit Court to revive the divorce action, substituting the administratrix for Graydon, and further moved that the maintenance payments to her be continued with past due payments also being paid out of the estate. The circuit court determined that the divorce decree did not contain an express provision that main tenance was to continue beyond Graydon’s death as was required by KRS 403.250(2) and entered its final order accordingly.
 Prior to the enactment of KRS 403.250 in 1972, termination of maintenance payments upon the death of the obligor was governed by case law. In Wides v. Wides, 300 Ky. 344, 188 S.W.2d 471 (1945) the court held 188 S.W.2d at 473 that maintenance payments provided in a judgment which stated that alimony would be paid monthly “during the lifetime of the said Leah O. Wides or as long as she remains unmarried,” did not terminate upon the death of the obligor. The Wides court held that there was no ambiguity concerning the termination of the obligation to pay maintenance as the judgment clearly stated that such obligation would terminate upon Leah Wides’ death or remarriage. In deciding domestic relations cases under the law as it stood prior to the 1972 legislative changes Kentucky courts continued to hold that where an agreement or decree evidenced an intent, express or implied, that alimony payments were not to end with the death of the obligor, then they would not so end. See Shepherd v. Shepherd, Ky., 521 S.W.2d 74 (1975).
 With 1972 came the enactment of KRS 403.250 which reads in part, as follows:
 (2) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
 Virginia argues that the legislature did not intend to overrule pre-1972 case law when it enacted KRS 403.250 which she urges embraces the rule stated in Wides and its progeny that the obligation to pay maintenance is terminated automatically by the obligor’s death, only when a decree is silent as to the duration of maintenance payments. Thus, according to Virginia, if a decree were to provide that maintenance would end upon her death, this would be an express provision as required by KRS 403.250 and the occurrence of no other contingency stated therein would operate to terminate the obligation. Virginia contends that the application of various rules of statutory construction would lead to this interpretation. However, it must be determined first if the statute is to some extent ambiguous in order to apply such rules. Reynolds Metal Co. v. Glass, 302 Ky. 622, 195 S.W.2d 280 (1946).
 The language of KRS 403.250 is clear and unambiguous. The death of the obligor is a statutory contingency the occurrence of which terminates the obligation to pay future maintenance unless the decree expressly provides that the occurrence of said contingency does not terminate the obligation. When no ambiguity exists a statute is to be interpreted according to the intent of the authors which intent is gleaned from what the authors actually said, not what they may have intended to but did not say. Reynolds Metal Co. v. Glass, Id. Virginia would have us write a new statute stating that the obligation to pay maintenance terminates upon the death of the obligor if and only if there is no provision in the decree concerning the duration of maintenance. This is not, however, what the plain language of the statute says. We will not strain to find an ambiguity where none exists in order to redraft a statute to conform to what might have been the intent of the legislature.
 
 

 

KY     Bishir v. Bishir, 698 S.W.2d 823 (Ky. 10/31/1985)

“The Uniformed Services Former Spouses Protection Act permits military retirement pay which is payable after June 25, 1981, to be treated as marital property in accordance with state law. Its effect was to reverse by legislation the contrary holding of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed. 2d 589 (decided June 26, 1981). This Act did not become effective until February 1, 1983, over a year and a half after the decree here became final. The language of the Act does not appear to compel the opening of any final decree disposing of marital property apart from whatever might be the requirements of the various state jurisdictions for opening a decree. The Act has nothing to do with maintenance payments, nor did it need to because since 1975 ‘all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub. L. 93-647 § 101(1), 88 Stat. 2357, 42 U.S.C. § 659.’ McCarty, 453 U.S. at 230.
“KRS 403.250(1) deals with the modification or termination of the provisions of a ‘decree respecting maintenance or support.’ The original decree in this case, to the extent that it gave the appellee any maintenance at all, awarded her ‘lump sum maintenance.’ Such an award is not subject to modification under the provisions of KRS 403.250. See Dame v. Dame, Ky., 628 S.W.2d 625 (1982).
“The appellee made no claim nor was there any finding that she acted under the influence of fraud, bad faith, or disability in agreeing to forgo maintenance. The record does not indicate why she discharged her attorney or why she chose to rely on the advice of the appellant’s attorney. Absent fraud or bad faith, reliance upon advice, even bad advice, is not normally grounds for opening a final judgment. Hoover v. Dudley, 228 Ky. 110, 14 S.W.2d 410 (1929); Mouser v. Harmon, 96 Ky. 591, 29 S.W. 448 (1895). No doubt appellee’s own counsel, had she not discharged him, would have shielded her from such advice. The mere fact that of her own volition the appellee may have made a bad bargain by accepting the residence in lieu of periodic maintenance would not constitute ‘any other reason of an extraordinary nature’ justifying an award of periodic maintenance so long after the decree had become final. CR 60.02(f). Consideration to support an agreement will not be deemed to be inadequate merely because the agreement operates to the disadvantage of one of the parties. Mutual promises themselves form a valuable consideration for an agreement where there is benefit to the promisor or detriment to the promisee. See Campbell v. Campbell, Ky., 377 S.W.2d 93 (1964); Peterson v. Peterson, Ky.App., 583 S.W.2d 707 (1979). The court made very sparse findings concerning the respective financial conditions of the parties, and the record reveals but little. Neither the findings of the court nor the record before us establishes a basis for making a belated award of periodic maintenance under CR 60.02(f).
“Since the Uniformed Services Former Spouses Protection Act does not itself compel the opening of a final decree, we must look to our own law to determine whether the circuit court could have made an award of marital property in response to the appellee’s motion. KRS 403.250(1) prohibits the revocation or modification of the property disposition provisions of a decree ‘unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.’ No such findings were made here.
“At the time that the agreement and final decree were made, the case law in this jurisdiction held that military retirement pay because of federal legislation could not be treated as marital property. See Russell v. Russell, Ky.App., 605 S.W.2d 33 (1980), cert. denied, 453 U.S. 922 (1981). This view was later confirmed by the United States Supreme Court in McCarty v. McCarty, supra. Thus, under existing law the appellant’s retirement pay was not subject to treatment as marital property. To the extent that the appellee may have believed her husband’s retirement pay was not marital property, that belief was quite correct. We do not consider that this correct belief coupled with an eighteen-month-later change in the law comes close to presenting ‘any other reason of an extraordinary nature justifying relief’ under CR 60.02(f).
“The strong and sensible policy of the law in favor of the finality of judgments has historically been overcome only in the presence of the most compelling equities. Relief under CR 60.02(f) is available where a clear showing of extraordinary and compelling equities is made. It may be that there are such equities weighing on the side of the appellee. The findings of the circuit court and the record before us simply do not establish them. The financial condition of the parties would seem to be rather important weights to place in the balance, yet this record shows very little concerning this. In fact, as far as the record shows, the appellee may well have foregone periodic maintenance because she was not statutorily qualified to obtain it. We doubt that, but our doubt is no more than a hunch. We cannot sustain relief under CR 60.02(f) based upon our hunches.
“The appellant also complains that the circuit court abused its discretion in requiring him to pay the appellee’s attorney’s fee for the post-judgment proceedings. KRS 403.220 permits a court to order a party to pay the adverse party’s attorney’s fees ‘after considering the financial resources of both parties.’ Such an order is appropriate ‘only when it is supported by an imbalance in the financial resources of the respective parties.’ Sullivan v. Levin, Ky., 555 S.W.2d 261, 263 (1977). There must be some evidence to show this imbalance. Id. While we are convinced that the findings of the court or the record before us do not justify relief under the demanding standards of CR 60.02(f), we believe there were sufficient findings to support the award of attorney’s fee.
The order of the circuit court is reversed as to the award to the appellee of a portion of the appellant’s military retirement pay and is affirmed as to the award of attorney’s fee.”
 

KY     Lydic v. Lydic, 664 S.W.2d 941 (Ky.App. 10/28/1983)
The Kentucky statute which controls the discontinuance of maintenance payments upon remarriage is K.R.S. 403.250(2):
Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
 
 

KY     Weldon v. Weldon, 957 S.W.2d 283 (Ky.App. 10/10/1997)
In reference to the provisions of KRS 403.200, the Kentucky Supreme Court stated in Perrine v. Christine, Ky., 833 S.W.2d 825 (1992), as follows:
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.
Id. at 826. Considering the nonmarital and marital property assigned to Holly, her annual income, and the standard of living established by the parties during their marriage, we find no abuse of discretion by the trial court in awarding maintenance to Holly.
 
 
 

KY     Clark v. Clark, 782 S.W.2d 56 (Ky.App. 01/05/1990)
Appellant, as part of his argument, first contends that the trial court’s decree forces the appellant’s estate to continue paying the appellee maintenance even after his death. This contention is incorrect. The decree in this case does not specifically state that the payments will continue after the payor’s death. KRS 403.250(2) states that unless otherwise agreed or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party. This Court in Clark v. Clark, Ky. App., 601 S.W.2d 614 (1980), specifically considered this statute. The decree it was forced to evaluate was virtually identical to the one currently before this Court. The Court decided to overrule Shepherd v. Shepherd, Ky., 521 S.W.2d 74 (1975), and other cases which had earlier held that such language in a decree meant that the maintenance would continue to be paid after the payor’s death. The Clark Court held that unless the divorce decree specifically stated that such payments would continue, the payments would end at the payor’s death. No inferences would be drawn. The Court specifically felt this was the intent of the drafters of KRS 403.250(2). In this case, the payments would not continue. As a result, appellant’s argument is misplaced.
 
 
 

KY     Wilhoit v. Wilhoit, 506 S.W.2d 511 (Ky.App. 03/01/1974)
In McKenzie v. McKenzie, Ky., 502 S.W.2d 657, we said:
“The policy of the statute (KRS 403.250) is for relative stability when such written agreements are examined and approved by the court. It is also clearly discernible that the legislative policy places a definite and substantial burden upon a party who seeks a change in the terms of such an agreement.”
The provision of KRS 403.250 which imposes the test of modification on a showing of changed circumstance so substantial and continuing as to make the terms unconscionable does not introduce a novel standard unknown to the law. The present statute was modeled after the Uniform Marriage and Divorce Act, as amended in 1971. For a discussion of the Act and commentaries, see 9 Uniform Laws Annotated, 488, 489, Marriage and Divorce Act, Sec. 306. It is evident that the term “unconscionable” as used in KRS 403.250 means “manifestly unfair or inequitable.”
We are of the opinion that the evidence presented at the trial in May 1973 demonstrated not only the changed circumstances necessary to require an increase in child support payments commensurate with the children’s needs, as well as the father’s increased ability to pay. The totality of the evidence, the circumstances of the original agreement, the time that has elapsed, all tend to show changed circumstances, “so substantial and continuing as to make the terms of the original agreement unconscionable.”
 
 
We agree that $160 per month which was awarded for support of Suzanne is small in the circumstances of this case, but we are not inclined to declare that there was error in following KRS 403.210 which specifies the rules for determining that allowance. Cf. Bell v. Bell, Ky., 494 S.W.2d 517 (1973). Support is subject to reconsideration by the trial court whenever this subject is properly presented. (KRS 403.250) Feinberg v. Feinberg, Ky., 467 S.W.2d 116 (1971). One adjustment was made after the judgment was entered. We are confident that there may be other adjustments if the circumstances warrant.
 
 

KY     Stevens v. Stevens, 729 S.W.2d 461 (Ky.App. 05/15/1987)
The father may feel that if his visitation privileges are seriously curtailed or effectively ended his support obligation terminates. It does not.
Here, the appellee alleges that he agreed to an increase in child support – as set forth in the order of October 28, 1985 – only in the belief that he would be granted visitation rights with his daughter and that she would visit with him. Consequently, he argues that any future child support payments should be conditioned upon his right of visitation being respected. Notwithstanding such argument, KRS 403.210, which delineates the factors to be considered in entering an order for child support, does not list the right of visitation of the noncustodial parent as a factor to be considered. Rather, the factors include the financial resources of the child as well as the financial resources of the custodial and noncustodial parent; the standard of living the child would have enjoyed had the marriage not been dissolved: and the physical and emotional condition of the child and his/her educational needs. In effect, a court is to look to the best interests of the child.
Consequently, the trial court may modify the future support obligation of the appellee only by looking at the factors set forth in KRS 403.210, as well as the factors set forth in KRS 403.250. The latter statute states that modifying the support Provision within a divorce decree may occur only upon a showing of “changed circumstances so substantial and continuing as to make the termsunconscionable.”Consequently, given the language of the statute, the appellee’s only remedy in seeking to force either the appellant – or the minor child herself – to comply with the visitation schedule set forth in the trial court’s order is to seek an order holding either or both in contempt of court. We question whether the child’s refusal to see her father could be construed as a “changed circumstance so substantial and continuing” as to make the terms of the child support order unconscionable. For the trial court is under an obligation to look to the needs of the child involved, notwithstanding her actions in refusing to visit with her father if the evidence establishes such fact.
The order of the trial court is reversed with directions that the trial court enter an order requiring the appellee to pay all past due and owing child support. The appellee may petition the trial court for an order modifying or reducing the amount of child support payable in the future if the provisions of KRS 403.250 are satisfied.
Further, pursuant to 2.(a) of the Order designating the case as a Special Appeal, the application of CR 76.20 and CR 76.32, as well as other appropriate Rules of Civil Procedure pertaining to further appellate steps, are reinstated effective the date of this opinion.
 

KY     McGowan v. McGowan, 663 S.W.2d 219 (Ky.App. 12/30/1983)
Similarly, the maintenance statute, KRS 403.200, explicitly authorizes a court to consider the economic circumstances of the parties, including the fact that one has acquired a professional degree with the assistance of the other, in determining whether to award maintenance and, if so, how much. True enough, the statute only permits maintenance to be awarded if the spouse seeking it “(1) (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.” However, while these statutory prerequisites seem to preclude an award of maintenance to a spouse who has contributed to the other spouse’s professional degree if the non-professional spouse can support him or herself through appropriate employment, the statute must be applied in the light of Casper v. Casper, Ky., 510 S.W.2d 253 (1974), and its progeny. Atwood v. Atwood, Ky. App., 643 S.W.2d 263 (1982); Combs v. Combs, Ky. App., 622 S.W.2d 679 (1981).
Casper interpreted KRS 403.200 (1) (b) to mean that an award of maintenance is appropriate when the spouse seeking it is unable to support him or herself according to the standard of living established during the marriage. Moreover, KRS 403.200 (2) requires the court to consider not only “the standard of living established during the marriage,” KRS 403.200 (2) (c), but also “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”KRS 403.200 (2) (f).Thus, in cases where a divorcing couple may have begun to enjoy the fruits of increased earnings resulting from a professional spouse’s degree, a court can, under the statute, properly consider the impact of a divorce on the non-professional spouse’s standard of living. If the court finds that the non-professional spouse will not be able to maintain a standard of living reasonably similar to the one enjoyed during the marriage and that the professional spouse can afford it, an award of maintenance to supplement the non-professional spouse’s income would be appropriate. This would be especially true in those instances where there is little or no marital property to divide. In such cases, through an award of maintenance, the court will be justifiably permitting the non-professional spouse to recoup most of his or her investment in the other spouse’s professional degree.
The trial court awarded $10,000 in lump- sum maintenance without specifically awarding anything for appellee’s contribution to appellant’s degree. We believe that this award was both fair and authorized by KRS 403.200. At the time of the divorce, appellee was earning $8,600 per year, while appellant was earning $19,000. Because appellee’s salary clearly will not allow her to enjoy anything approaching the standard of living which she enjoyed as appellant’s wife, she was entitled to an award of maintenance. Casper, supra. In making an award, the court took into account appellant’s indebtedness for educational loans, the fact that appellee had remarried and was thus not entitled to periodic maintenance, and the fact that, while appellant “could not have matriculated without the wife’s aid and assistance,” her contributions “will not greatly inure to his direct financial enhancement.” Furthermore, the court ordered appellant to pay at least $300 per month in child support, all of their child’s medical and dental expenses, and $1,500 of appellee’s attorney’s fees. In light of the evidence, we cannot say that the court erred in awarding maintenance or that there was any abuse of discretion in the amount awarded. Accordingly, we affirm the portion of the judgment which awards appellee $10,000 in lump- sum maintenance.
 

KY     Sharp v. Sharp, 516 S.W.2d 875 (Ky.App. 10/25/1974) 
Mr. Sharp claims that the award of an attorney’s fee is a part of the court costs and that interest is not allowable on a judgment for court costs. While the allowance of a fee to the wife’s attorney has been frequently termed as a part of the costs and taxed as such (Maynard v. Maynard, Ky., 251 S.W.2d 454 (1952)), KRS 403.220 now seems to treat it separately. That statute reads:
“The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.” (Acts 1972, Ch. 182, Sec. 12.)
We know of no reason why that part of the judgment should not bear interest. KRS 360.040.
The trial court, in its findings, stated, “Plaintiff is entitled to supersedeas penalty on amount affirmed by the Court of Appeals, which was $61,488.00 * * *.” Mr. Sharp argues that the judgment entered on that finding was erroneous because the money judgment, which was originally entered in the amount of $74,055, was appealed from and was not affirmed. KRS 21.130 is quoted in full, and CR 73.04 is quoted in part, in Howard v. Howard, Ky., 421 S.W.2d 862 (1967). This statute and this rule relate to supersedeas bonds. The original judgment was “* * * for the payment of money, the collection of which, in whole or in part, * * *” was superseded. While the specific amount which Mrs. Sharp was entitled to recover was not specified, in our opinion as it was in Howard v. Howard, supra; nevertheless, the supersedeas prevented Mrs. Sharp from issuing an execution to recover any part of that to which the trial court said she was entitled. It was appropriate for the trial court to allow the supersedeas penalty on the amount which it found had been affirmed. Cf. Sotak v. Sotak, Ky., 438 S.W.2d 490 (1969).
 
By virtue of the provisions of KRS 403.200, maintenance may not be awarded until account has first been taken of the assignment and division ofproperty. Hollon v. Hollon Ky., 623 S.W.2d 898 (1981). Under the statute, the exact terms of the maintenance award depend, inter alia, upon the decision of the court as to the ownership of property. KRS 403.200(2). Upon a determination that the spouse seeking maintenance qualifies for such an award under KRS 403.200(1), the determination of amount and duration is governed by section (2) of the statute which requires consideration of all the financial resources of the parties. Roberts v. Roberts, Ky.App., 744 S.W.2d 433 (1988). Thus, any award of maintenance being wholly dependent upon the value of property received by the spouse seeking maintenance, it necessarily follows that a proper award is impossible unless the trial court can be reasonably assured that its determination of property ownership will be realized.
In Dame v. Dame, supra, this Court construed KRS 403.250, a statute relating to modification of maintenance, etc., without any reference to division of property. There was no contention that the spouse seeking an extension of maintenance did not realize all benefits awarded in the original decree. The sole question presented was whether the circuit court could modify the lump sum maintenance award based on a change of circumstances. Relying substantially on the beneficial aspects of finality of litigation and certainty of obligation, we distinguished lump sum awards from open-end awards and held that maintenance awards payable in a lump sum could not be modified by simply showing “changed circumstances.” On the facts presented in Dame, the result was reached was proper.
As previously discussed, a strong nexus exists between property awarded and maintenance. In a proper application of the statutes, the trial court should formulate a comprehensive plan for allocation of resources in an equitable manner. Upon occasion, however, extraordinary events may intervene which render full compliance with the decree impossible and defeat the scheme formulated by the court. As a result, one party may reap a windfall while the other is left to suffer. In equity and good conscience, this Court cannot approve prospective application of one provision of a decree when another and essential provision of the same decree has failed entirely.
In the case at bar, an examination of the original decision of the trial court reveals a carefully formulated plan to equitably divide marital property and allocate scarce resources for the benefit of the parties and their children. Under this plan, and in addition to her modest earnings, appellant was awarded child support, maintenance, and the $11,600 note payable in monthly installments of $500. Under the law, the value of the note and the income it provided were considered by the court in determining the amount and duration of maintenance. Upon discharge of the note in the bankruptcy proceeding, an essential element of the trial court’s formulation was eliminated. As such, the maintenance award was left without a sufficient legal predicate. Upon confrontation with such a circumstance and with due regard for the requirements of KRS 403.250, the trial court properly entertained the motion for modification of maintenance to compensate for loss of the note.
This decision should not be read as significant departure from Dame. In ordinary circumstances parties may continue to rely upon the finality of a lump sum maintenance award. But upon the occurrence, as in the case at bar, of an event causing manifest inequity, Dame may not be used as a shield to prevent restoration of the underlying purpose of the decree.
Accordingly, the opinion of the Court of Appeals is reversed, and the order of the trial court is reinstated in every respect.
 
 
KY     August Robert Barbarine v. Barbarine, 925 S.W.2d 831 (Ky.App. 02/09/1996)
August argues that the circuit court’s finding that voluntary retirement does not constitute a material change of circumstances sufficient to justify a modification of a maintenance award should be overruled, because the finding incorrectly equated retirement with voluntary unemployment. This Court has found no error on the trial court’s part, and hence, must affirm.
Kentucky Revised Statute (KRS) 403.250(1) provides, “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 termsunconscionable.” See McKenzie v. McKenzie, Ky., 502 S.W.2d 657 (1973). Evidence for the movant must be compelling for the trial court to grant the relief requested; the policy of the statute is for relative stability. Id. The determination of questions regarding maintenance is a matter which has traditionally been delegated to the sound and broad discretion of the trial court, and an appellate court will not disturb the trial court absent an abuse of discretion. Perrine v. Christine, Ky., 833 S.W.2d 825 (1992); Somerville v. Somerville, Ky., 339 S.W.2d 940 (1960); William Haynes, Kentucky Jurisprudence, Domestic Relations, § 35, at 433 (1986); Ralph Petrilli, Kentucky Family Law, § 25.20 at 385 (1988). An appellate court is not authorized to substitute its own judgment for that of the trial court where the trial court’s decision is supported by substantial evidence. Combs v. Combs, Ky., 787 S.W.2d 260 (1990); Haynes, Kentucky Jurisprudence, Domestic Relations, supplement, § 35-1, at 117 (1994).
 
 

 

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