HORVATH V.  HORVATH
FAMILY LAW:  Temporary maintenance arrearages
2006-SC-000837-DG.pdf
PUBLISHED:  REVERSING
OPINION BY SCOTT
KENTON COUNTY
DATE RENDERED: 4/24/2008

SC granted discretionary review on the issue of whether monthly payments by Husband to Wife satisfied his temporary maintenance obligation or represented a division of marital property, thus resulting in an arrearage of temporary maintenance payments by Husband.

Facts

While the parties’ dissolution action was pending, they orally agreed that Husband would pay Wife "temporary maintenance" of $1,700 per month. Husband subsequently sold his shares in his business to his partners, for which he was to receive $30,000 in twelve quarterly payments of $2,500 and a consulting fee in the amount of $9,375 per month for three years. When the monthly consulting payments began, Husband increased his payments to Wife up to a monthly amount equal to about half the monthly consulting fee. The trial court subsequently ordered Husband to pay $1,700 per month temporary maintenance as per the parties’ previous agreement. Husband nonetheless continued paying Wife the greater amount, equal to about half of the monthly consulting fee.

TC characterized the sales price as well as the consulting fee for Husband’s business interest as a marital asset and treated the increased payments to Wife as a division of marital property, rather than maintenance, and found that Husband owed $1,700 per month in maintenance arrears from the date of the temporary maintenance order to the date of final judgment. CA affirmed.

Analysis

Husband argued that his monthly payments to Wife satisfied his temporary maintenance obligation. SC found that the payments were "undoubtedly" for temporary maintenance as there existed in the record no documentation of any agreement that the increased payments were the result of an agreed division of marital assets, nor did anyone argue that they were gifts. SC found that the fact that the payments were funded by marital property is immaterial. Kentucky law, with few exceptions, presumes that all property acquired subsequent to the marriage and before legal separation is marital property. KRS 403.190(2)-(3). Thus, there is no statutory requirement that temporary maintenance be paid out of non-marital property, so long as each party receives his or her full share of marital property on entry of decree. TC awarded Wife half the value of the consulting fee in its equalization of the marital estate. Thus, of the increased payments Husband made to Wife, Husband was paying Wife $1,700 in temporary maintenance and the remainder as payment towards her half of the consulting fees. Consequently, SC ordered that Husband must now pay Wife her full share of this marital asset, less the amounts she has already received over and above the $1,700 per month she received as temporary maintenance. CA reversed and remanded to TC.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.