Antonio Melo v. Emma Mead Melo

• Court: Court of Appeals of Kentucky
• Decided: March 31, 2022
• Docket: 2020 CA 001272
• Status: Unknown

Opinion

RENDERED: APRIL 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1272-MR

ANTONIO MELO APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 19-CI-500677

EMMA MEAD MELO; DIANA L. SKAGGS; EMILY T. CECCONI; AND DIANA L. SKAGGS + PARTNERS, PLLC APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Antonio Melo (“Antonio”) appeals from the Jefferson Family

Court’s findings of fact, conclusions of law, and judgment, following a bench trial

held on March 4, 2020, awarding Emma Mead Melo (“Emma”) maintenance and

attorney fees. Finding no error, we affirm. Antonio and Emma were married on October 7, 2000 in New York,

New York and moved to Kentucky in 2004. After almost nineteen years of

marriage, they separated on March 2, 2019. At that time, both Antonio and Emma

were forty-five years old. Two children were born of the marriage, one of whom is

now emancipated.

Throughout their marriage, Emma took care of the home and children

while Antonio was the family’s primary financial provider. At the time of trial,

Antonio was employed as a vice president for Humana, earning $298,893.27 in

2019. Emma was employed as a preschool teacher at Highland Presbyterian

Nursery, earning $16,000.00 in 2019, although she had recently accepted a full-

time position at the school beginning August 2020, earning $39,353.44 per year.

At trial, Emma testified that in November 2017, she began

experiencing numbness in her legs and a “minty” feeling in her arms, feet, back of

her neck, and right side of her face. Later she experienced other symptoms, such

as body twitches and exhaustion. These symptoms come and go, and no definitive

diagnosis has been made. Emma stated her fear is that she might have MS and that

severe symptoms could develop in the future impairing her ability to work.

Dr. Roy Meckler, a neurologist who has been seeing Emma as a

patient for two years, testified that her symptoms are the same as those sometimes

seen in patients with multiple sclerosis (“MS”). He further testified that there is no

-2- cure for MS and its symptoms are unpredictable. Dr. Meckler, however, testified

that Emma has not been diagnosed with MS, is not currently disabled, and is able

to work.

Based upon her undiagnosed condition, Emma requested maintenance

that was open ended and modifiable in the amount of $6,000 per month. Emma’s

monthly expenses are estimated at $8,081.20 and her monthly income is $3,329.

Anthony’s monthly expenses are estimated at $12,400 and his monthly income is

around $25,000.

Following the evidence, the trial court entered findings of fact,

conclusions of law, and an order of judgment awarding Emma $614,200.80 in

marital assets and $9,700 in non-marital assets. Antonio was awarded $605,675.80

in marital assets and $529,059.39 in non-marital assets. Emma was further

awarded monthly spousal maintenance of $3,562 and Antonio was ordered to pay

80% of Emma’s $51,112.02 attorney fee total. Antonio appealed, challenging the

amount and duration of Emma’s maintenance award, as well as the award of

attorney fees. Further facts will be set forth as necessary below.

“The amount and duration of maintenance are within the sound

discretion of the trial court.” Bailey v. Bailey, 246 S.W.3d 895, 897 (Ky. App.

2007), as modified (Feb. 15, 2008) (citation omitted). “It is well-settled that we

will not disturb a trial court’s award of maintenance unless the court ‘abused its

-3- discretion or based its decision on findings of fact that are clearly erroneous.’” Id.

(citing Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003)). Abuse of discretion

occurs when the circuit court’s decision is “arbitrary, unreasonable, unfair, or

unsupported by sound legal principles.” Artrip v. Noe, 311 S.W.3d 229, 232 (Ky.

2010) (citation omitted).

In determining the appropriate amount and duration of maintenance,

the trial court must consider 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.

-4- KRS1 403.200(2).

Antonio’s primary argument concerns the trial court’s award of open-

ended maintenance. He contends “[t]he Family Court Order on maintenance

hinges on Emma’s claim that she suffers from multiple sclerosis[.]” Antonio

apparently believes the trial court’s finding as to duration was based solely on

Emma’s undiagnosed condition. However, this is inaccurate. The trial court found

that Emma’s marital assets would not provide enough income for her to “properly

support herself in the manner established during the marriage.” As to Antonio, the

court determined he was “well situated to provide for his own needs,” based upon

his monthly income of nearly $25,000.00 and estimated expenses of $12,400.00. It

further found Emma “earns significantly less than Antonio and her future earning

potential is also significantly less due to the years she spent as a homemaker.”

The court did consider “Emma’s unknown medical condition” and

found that “it impacts her daily life and may impact her ability to earn future

income.” Based upon the above findings, the court concluded: “Emma lacks

sufficient property to meet her needs [sic] reasonable needs and is unable to

support herself consistent with the standard of living established during the parties’

marriage.”

1 Kentucky Revised Statutes.

-5- Therefore, contrary to Antonio’s assertion, the trial court’s award of

open-ended maintenance does not “hinge[] on Emma’s claim that she suffers from

multiple sclerosis[.]” The trial court properly considered the factors set forth in

KRS 403.200(2), including Emma’s financial resources and her ability to meet her

needs independently, the standard of living established during the marriage,

Emma’s physical condition, and Antonio’s ability to meet his own needs while

meeting Emma’s.

While Antonio is correct that “KRS 403.200 seeks to enable the

unemployable spouse to acquire the skills necessary to support himself or herself

in the current workforce so that he or she does not rely upon the maintenance of

the working spouse indefinitely[,]” Powell, 107 S.W.3d at 224 (citation omitted),

“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, our courts have declined to follow that policy and have

instead awarded maintenance for a longer period or in greater amounts.” Id.

(internal quotation marks and citation omitted).

Here, the trial court appears to have placed great weight on the

discrepancy in the parties’ incomes and the standard of living established during

the marriage, as it was entitled to do. See id. (“KRS 403.200 specifically states

that the trial court should consider the standard of living to which the parties are

-6- accustomed in determining the . . . duration of the award.”). “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.” Id. (citation omitted).

Further, “[w]hen the evidence regarding entitlement to and amount of

future benefits is speculative, it is better practice to enter an open-ended award that

can be reduced or eliminated pursuant to KRS 403.250.” Naramore v. Naramore,

611 S.W.3d 281, 290 (Ky. App. 2020). While there was some evidence that

Emma’s income may increase in the future, it is uncertain when this might occur

and to what degree. This uncertainly is even greater in light of Emma’s

undiagnosed condition.

Antonio argues the court’s open-ended maintenance award creates an

insurmountable barrier to modification because if circumstances stay the same, he

must pay maintenance and if circumstances change, and Emma receives an MS

diagnosis, he still must pay maintenance. However, Antonio’s argument is again

based upon the flawed premise the trial court awarded maintenance solely because

of Emma’s physical condition. KRS 403.250(1) provides a mechanism whereby

an award of maintenance can be modified “upon a showing of changed

circumstances so substantial and continuing as to make the terms unconscionable.”

The open-ended maintenance award was based in part upon the standard of living

-7- established during Antonio and Emma’s marriage and the discrepancy between

their incomes. Emma testified that she believes her current job offers opportunities

for career advancement that could be “very lucrative” in the future. Should either

parties’ financial circumstances change, Antonio may pursue modification

pursuant to KRS 403.250(1).

Antonio next challenges the amount of the maintenance award,

arguing the trial court should have reduced the award by certain adjustments to

Emma’s income and expenses. For instance, he notes that while Emma’s monthly

income increased in August 2020 from $1,656 to $3,329, the court only reduced

her monthly maintenance award by $564. Essentially, Antonio appears to argue

that the trial court must follow a formula in determining the amount of

maintenance, granting a one-for-one reduction for any adjustments to income or

expenses.

However, Kentucky courts do not apply a mathematical formula in

determining the amount of maintenance. See Age v. Age, 340 S.W.3d 88, 95 (Ky.

App. 2011) (“no particular formula has ever been held as the method for

establishing maintenance.”). Instead, trial courts are given very broad discretion.

Id. (citation omitted). The only requirement is that the trial court consider the

statutory factors in KRS 403.200(2).

-8- From our review of the record, it is evident the trial court considered

the factors set forth in KRS 403.200(2) when it awarded open-ended maintenance

of $3,562 per month to Emma. The court’s order references the parties 18 year

marriage, Emma’s financial resources and her inability to meet her needs

independently considering the standard of living established during the marriage,

Emma’s physical condition, and Antonio’s ability to meet his needs while paying

maintenance. We find no abuse of discretion by the trial court.

Finally, Antonio argues the trial court erred 1) in awarding Emma

attorney fees that were already paid out of marital assets and 2) in awarding

attorney fees without requiring supporting documentation. As to Antonio’s first

argument, he claims that by requiring him to pay for attorney fees previously paid

out of marital funds, he essentially will be paying those fees twice, resulting “in

double-dipping and a windfall to Emma.” Antonio has cited no law in support of

his argument.

Pursuant to KRS 403.220, a trial court is authorized to award a

“reasonable amount” for attorney fees in a divorce action after considering “the

financial resources of both parties[.]” “An award of fees is reviewed by this court

under an abuse of discretion standard.” Allison v. Allison, 246 S.W.3d 898, 909

(Ky. App. 2008) (citation omitted).

-9- We disagree the trial court’s attorney fee award amounts to “double-

dipping.” In effect, by requiring Antonio to pay Emma’s attorney fees already paid

from marital funds, the trial court reimbursed Emma for her share of marital funds

expended to maintain the divorce action. As Emma notes in her appellee brief, the

trial court merely “shifted the burden of those fees to Antonio in an effort to restore

to Emma her portion of the marital estate that was diminished.” In awarding

attorney fees, the trial court found “a substantial disparity in income and assets”

between the parties and ordered Antonio to pay 80% of Emma’s current and past

attorney fees. The court clearly intended for Antonio to shoulder most of the

attorney fee expense. We find no abuse of discretion.

Antonio also contends the trial court erred in awarding attorney fees

without requiring supporting documentation. Following trial, Emma’s counsel

submitted an affidavit containing the total number of hours expended on the case

with corresponding hourly rates. Antonio argues this affidavit is insufficient to

support an attorney fee award and violates the Jefferson Circuit Court local rules of

practice, which require an affidavit to set forth, among other things, the nature of

the services rendered. Emma rightly responds that JRP2 101 explicitly provides

that the rules are not enforceable in family court. Further, Emma notes that her

total attorney fees were $9,355.58 less than Antonio’s.

2 Jefferson Rules of Practice.

-10- KRS 403.220 authorizes an award of attorney fees “after considering

the financial resources of both parties[.]” Financial disparity is a factor to consider

when looking “at the parties’ total financial picture.” Smith v. McGill, 556 S.W.3d

552, 556 (Ky. 2018). Here, the trial court considered both parties’ financial

resources, finding a “substantial disparity” in income and assets. It then awarded

attorney fees based upon its consideration. This is all the statute requires. We find

no abuse of discretion with respect to the award or its amount.

Therefore, for all the foregoing reasons, the judgment of the Jefferson

Family Court is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE EMMA MEAD MELO: Mark W. Dobbins Sandra F. Keene Diana L. Skaggs Louisville, Kentucky Emily T. Cecconi Louisville, Kentucky

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