Family Law (Maintenance): MASSEY V. MASSEY (COA 9/1/2006)

MASSEY V. MASSEY
FAMILY LAW:  Maintenance (Lump sum award)
2004-CA-002197
PUBLISHED  – AFFIRMING IN PART, REVERSING IN PART, AND REMANDING; TAYLOR
DATE RENDERED: 9/1/2006

A maintenance award to be paid in periodic installments with a termination date is not a non-modifiable, lump-sum maintenance award if the court provides for modification of the award. It is an open-ended maintenance award despite the termination date due to the fact that it is modifiable. An open-ended maintenance award may be modified by only two methods: (1) agreement of the parties pursuant to a separation agreement, or (2) changed circumstances so substantial and continuing as to make the terms of the award unconscionable. Consequently, the family court’s order subjecting the award to modification only if the obligor’s financial situation improved was clearly contrary to the mandates of KRS 403.250(1). A substantial and continuing change of circumstances applies to both obligor and obligee, and also includes both improvement and detriment to the financial situation.

Because the court considered and made findings regarding the obligor’s ability to pay and the financial resources of the obligee, the amount of maintenance awarded was not an abuse of discretion.

Lastly, the court heard evidence regarding the obligee’s disability and her ability to obtain future employment. Notwithstanding this fact, the family court made no findings on this issue. The duration of any maintenance award must reflect the obligee’s permanent disability, if one exists. The court must make specific findings whether the obligee is permanently disabled and whether she can be gainfully employed in the future, and failure to do so is an abuse of discretion.

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